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https://www.courtlistener.com/api/rest/v3/opinions/2398629/ | 86 F. Supp. 2d 168 (2000)
Beth CORCHADO, on behalf of her son, Sadrach Corchado, Plaintiff,
v.
BOARD OF EDUCATION, ROCHESTER CITY, SCHOOL DISTRICT, Defendant.
No. 99-CV-6494 (FE).
United States District Court, W.D. New York.
February 18, 2000.
*169 Jonathan Feldman, Public Interest Law Office of Rochester, Rochester, NY, for Beth Corchado, Sadrach Corchado, plaintiffs.
Donald T. Schmitt, Rochester City School District, Rochester, NY, for Board of Education of Rochester City School District, defendant.
DECISION AND ORDER
FELDMAN, United States Magistrate Judge.
Preliminary Statement
This is an action brought by plaintiff, Beth Corchado, on behalf of her son, Sadrach Corchado, (Sadrach) pursuant to the Individual with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq., seeking review of a denial of educational benefits. The sole issue before this Court is whether Sadrach, a fourth grade student attending public school in the City of Rochester, qualifies for special education benefits under IDEA. The defendant determined that Sadrach did not qualify for benefits under IDEA and, on administrative review, an Impartial Hearing Officer (IHO) and a State Review Officer (SRO) agreed. For the reasons that follow, I find that Sadrach does qualify for IDEA benefits and, therefore, direct the defendant to develop and implement an individualized educational plan (IEP) for Sadrach pursuant to the IDEA.
Factual Summary
The facts, as set forth in a detailed administrative record, are for the most part undisputed. Sadrach is a ten year old fourth grader who attends public School # 33 in the City of Rochester. Born in Puerto Rico after only eight months of gestation, Sadrach suffers from multiple and complex medical difficulties. The SRO summarized briefly Sadrach's medical history in his decision affirming the denial of IDEA benefits:
[Sadrach] was born in Puerto Rico and has reportedly had a life long seizure disorder, which may have been the combination of congenital measles and birth anoxia. A pediatric neurologist who examined the boy in November, 1994 reported that the child also has an attention deficit hyperactivity disorder (ADHD) with aggressive tendencies, a psychomotor delay, mild asthma and learning disabilities with possible mental retardation. He further reported that the child also had a tremor in his bilateral upper extremities. The pediatric neurologist expressed concern that the medication to control the child's seizure disorder was having a significant detrimental effect on his ADHD, and recommended a different combination of medications. The result of an EEG conducted during the examination were consistent with a tendency toward a focal seizure disorder. A second neurologist, who saw the boy in February, 1996, opined that he appeared to have a partial complex seizure disorder with secondary generalization.
In addition to his seizure disorder, tremors, and ADHD, the SRO also summarized Sadrach's medical history with respect to observed problems with the child's speech and language development:
In a speech/language evaluation conducted on May 23, 1995, the speech language pathologist noted that Spanish was the dominant language spoken in the home, but that the child was considered *170 to be bilingual. The child received scores from one to three years below his chronological age on all tests of his expressive and receptive communication skills.
The medical record also confirms that Sadrach's language skills are complicated by the fact that he speaks with a lisp and stutters. In addition, Sadrach suffers from auditory deficiencies. As described in the SRO's decision, Sadrach was evaluated by a City School District audiologist in early 1996. "The audiologist indicated that the child had a fluctuating hearing loss which was expected to cause hearing difficulties in instructional situations." Although Sadrach completed first grade in 1996, he periodically needed home and hospital tutoring "because seizures and asthma prevented him from attending school."
Sadrach returned to school in September, 1996, to commence second grade. Due to academic and health related difficulties, Sadrach repeated the second grade in the 1997-1998 school year. In March of 1998, while Sadrach was repeating second grade, his mother completed a special education referral request seeking special education services for her son. Her request was referred to, and evaluated by, the school district's "Pupil Personnel Services Team" (PPST) who found that "Sadrach could be classified as a student with a `Other Health Impairment,'" thus making him eligible for special education benefits. The PPST recommendation was referred to the district's Committee on Special Education ("CSE"). In May, 1998, the CSE rejected the PPST recommendation, finding that Sadrach had "made progress such that achievement is described as average for his grade placement" and that his noted medical problems "are not significantly impacting his overall progress."
Sadrach's mother decided to obtain an independent medical evaluation from the Genesee Developmental Unit ("GDU") at the Genesee Hospital. The GDU evaluation team was supervised by Dr. Miriam Halpern, a developmental pediatrician with the GDU. Dr. Halpern obtained her undergraduate degree from University of Michigan and her medical degree from the University of Rochester Medical School. She completed a pediatric residency at Oakland Children's Hospital and at Strong Memorial Hospital in Rochester. Dr. Halpern also completed a fellowship in developmental pediatrics at Strong Memorial and worked for five years as pediatrician at the Anthony Jordan Health Center, an inner-city HMO in Rochester.
As case manager for Sadrach, Dr Halpern herself conducted a neuro-developmental evaluation to determine what medical conditions Sadrach had. Dr. Halpern then referred Sadrach to other team members at GDU for specialized testing and evaluation in the areas of communication and education/academics. Each team member prepared a comprehensive report documenting their testing results and evaluative recommendations. After each team member had evaluated and tested Sadrach, the team again conferenced and prepared a detailed "Team Evaluative Summary."
The GDU reports are part of the administrative record and will not be repeated at length herein. Suffice it to say that the team members found Sadrach to suffer from significant learning disorders and/or neurological problems. For example, during her examination of Sadrach, Dr. Halpern observed Sadrach to have a seizure lasting approximately 30 seconds involving "significant tremulousness" of his right hand. Dr. Halpern also noted that Sadrach has "articulation difficulties," "difficulty with fine motor coordination" and "visual tracking problems." The GDU Communication Assessment found Sadrach's "language comprehension and expression abilities" to be "markedly diminished." He exhibited "diminished ability to register auditory information in short term memory." Overall, the communications assessment found Sadrach to suffer from "significant language weakness" to the point where "his language system is not able to cope with the demands of the *171 curriculum." The GDU "Educational Assessment" likewise found significant deficiencies. Testing found Sadrach to be reading at a beginning second grade level, his reading comprehension at an end of first grade level, math problem solving applications at an end of first grade level and math computation at a mid-second grade level. The evaluator concluded:
Sadrach's performance within this evaluation setting indicates the need for additional educational support for him to meet the demands of the third grade curriculum. He has repeated second grade; however, skills have not developed to an end of second grade level. He presents as a youngster who has significant language needs.... It is strongly suggested that Sadrach be referred to the Committee on Special Education to be identified as a youngster with special needs. Given his history of seizures and other medical issues, he should qualify within that realm if achievement scores are not thought to warrant labeling.
The Team Evaluation Summary diagnosed Sadrach as suffering from: (1) receptive and expressive language disorder; (2) articulation disorder; (3) seizure disorder; (4)significant processing deficits; (5) developmental reading disorder; and (6) developmental coordination disorder. The team concluded that "Sadrach should be considered as an Other Health Impaired Youngster and receive supportive services for all content areas."
After receiving a copy of the GDU assessment report, Sadrach's mother asked the CSE to reconsider its finding that the child was not eligible for special education services. Notwithstanding the GDU evaluation, findings and report, on November 13, 1998, the CSE again concluded that Sadrach was ineligible for special education services.[1] The CSE discounted the GDU report because "the testing was completed in English, which is not Sadrach's dominant language." Relying instead on district testing completed in the Spanish language in May 1998 which found Sadrach to have a full IQ of 130 (very superior range), the CSE concluded that Sadrach was non-disabled. As to his seizures and ADHD, the CSE concluded: "Although he presents with a seizure disorder and is diagnosed with ADHD, it does not appear to negatively impact on his academic performance in the classroom."
Sadrach's mother appealed the decision of the CSE to the IHO. A fact-finding hearing was held on January 28 and 29, 1999. The evidence at the hearing included testimony from Sadrach's mother, his teachers, members of the CSE committee and Dr. Halpern, as well as hundreds of pages of documentary evidence including report cards, testing results and the GDU report. In a decision dated February 13, 1999, the IHO affirmed the CSE's decision that Sadrach was ineligible for special education services. The IHO found that Sadrach "clearly has a number of difficulties," including ADHD (attention deficit hyperactivity disorder), a seizure disorder, asthma, stuttering, articulation problems, a lateral lisp, and "some degree of hearing difficulty." The IHO described the "crux of the issue" as to whether Sadrach's "educational performance was adversely affected by his difficulties to an extent warranting special education." As to this issue, the IHO found that despite his "difficulties," Sadrach "is achieving at his current grade level in regular education." According to the IHO, "if student (sic) is able to achieve satisfactorily academically, his problems do not rise to a level satisfying the definitional standards" for special education services.
As to the GDU report and assessment, the IHO agreed that the report documented "lower achievement score and a host of learning/educational problems ranging *172 from speech/language issues to a reading disorder." The IHO found the GDU report and Dr. Halpern's hearing testimony "impressive" and agreed that if the GDU results were "accepted," Sadrach would meet the eligibility requirements for special education. Nevertheless, the IHO discounted the GDU report, not because the testing was conducted in English, but rather because the GDU evaluators had never observed Sadrach in school or "talked to his teachers at length." In resolving what the IHO perceived as a "conflict" between the teachers observations of Sadrach and the findings of the GDU evaluators, the IHO ruled that "one must give greater deference to those actually observing the student in school, those teaching him and charting his progress." According to the IHO, "[w]hat is left then is a student who is shown by the evidence here to be achieving satisfactorily at grade level." Accordingly, the IHO concluded that Sadrach was not eligible to be classified for special education.
On March 25, 1999, Sadrach's mother appealed the IHO's ruling. Almost six months later, the SRO officer affirmed the decision of the IHO. After summarizing the record, the SRO found, inter alia, that "the child's educational performance has consistently been in the average range and both the private assessment [GDU] and [the school district's] academic evaluations show that the child was functioning at, near or slightly below grade level." The SRO found that although Sadrach's "IQ scores place him in the superior range of intellectual functioning, and his academic performance is in the average range, it is not clear that the child requires special education services." The SRO concluded that "the child's medical conditions did not adversely impact his academic performance to the extent he required special education or related services."
On October 15, 1999, the instant action was commenced in federal court seeking judicial review of the state administrative proceedings. By stipulation dated November 19, 1999, the parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c) and thereafter filed cross-motions for summary judgment. A briefing schedule was agreed upon and oral argument on the cross-motions was heard by this Court on February 14, 2000. Due to the urgency inherent in determining Sadrach's eligibility for special educational services, this Court agreed to decide the cross-motions on an expedited basis.
Discussion
Standard of Review: In reviewing whether a particular educational plan adopted by a school district meets the requirements of IDEA, the Court must normally afford substantial deference to the determinations of state and local officials who possess the "expertise in the formulation of educational programs for the handicapped." Briggs v. Board of Educ. of State of Conn., 882 F.2d 688, 693 (2d Cir.1989). See Board of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)(deference to the findings of state and local agencies secures that federal courts do not "impos[e] their view of preferable educational methods upon the States"). Where, however, the issue before the Court is "whether the school district properly classified [the student] as an individual with or without a disability in the first instance," the Court is not bound by the rule of deference. Muller v. Committee on Special Educ., 145 F.3d 95, 102 (2d Cir.1998). Whether a particular child's deficits satisfy the eligibility definitions set forth in relevant state and federal regulations is a matter of statutory interpretation and "the state administrative officials [are] in no better position than the district court to make conclusions with respect to [the student's] statutory eligibility based on the record." Id. Accordingly, and consistent with Muller, this Court is "free to consider the issue of [Sadrach's] statutory eligibility de novo." Id.
*173 2. Eligibility For Services: The purpose of the IDEA is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d). In enacting the IDEA, Congress declared that "[i]mproving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self sufficiency for individuals with disabilities." 20 U.S.C. § 1400(c)(1).
Given the broad scope of the legislation, it is not surprising that the Act as well as its implementing regulations take an inclusionary approach in defining the term "child with a disability" and embrace within its scope children who suffer from a wide variety of deficits including hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, learning disabilities, orthopedic impairments and "other health impairments." 20 U.S.C. § 401(3)(A); 34 C.F.R. § 300.7. Once a child is determined to meet the definitional standard of a "child with a disability," the school district is required to formulate an individualized education program (IEP) "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982).
As stated earlier, the issue here is the threshold one: Does Sadrach's documented disabilities meet the eligibility requirements entitling him to the benefits of special education and related services under the IDEA? Sadrach's mother submits that the administrative record in this case demonstrates that her son meets three distinct disability classifications: (1) "Other Health Impaired"; (2) Speech Impaired; and (3) Learning Disabled. Each classification is discussed below.
A. "Other Health Impaired": Under applicable regulations, a child is eligible for special education services under the "Other Health Impaired" classification if the child has a condition that limits strength, vitality or alertness resulting in limited alertness to the educational environment and adversely effects educational performance. 34 C.F.R. § 300.7(b)(8); 8 N.Y.C.R.R. § 200.1(mm)(10). The administrative record in this case thoroughly documents Sadrach's long term seizure disorder. The recurrent seizures caused him to miss many days of school, both as a result of the seizures themselves and so that he could attend medical appointments.[2] Although adjustments in medication appear to have significantly reduced absences, the administrative record pays tribute to the fact that Sadrach continues to have regular uncontrolled seizures which affect his alertness in class. Dr. Halpern testified that during her neurological examination of Sadrach she observed him experience a seizure of approximately thirty seconds. The seizure occurred during a writing exercise.
[W]hile he was writing and he was writing slowly and carefully and suddenly his arm began to shake, he couldn't control the pencil and there was simultaneously some, what I'll call psychomotor retardation, everything kind of slowed down. He was obviously having a seizure at that moment, it lasted probably, at the most 30 seconds, its hard to judge time in those kinds of episodes.
Transcript at page 133-34. Dr. Halpern was specifically asked her medical opinion as to what effect such seizures have on academic performance. She answered:
There is no hard and fast rule about how seizures affect performance, however, seizures definitely do disrupt the learning process not just while they occur but for a post seizure period. They affect memory and memory and learning go *174 hand in hand. This means, now [Sadrach's] mother reported at the time of the evaluation that Sadrach was having approximately one seizure every two weeks. Those are noticed by her. My suspicions, therefore, if she notices them twice a month or so, they are probably occurring more often. Which could mean that for a period of time during his day, he is not a learner, he is not physiologically able to encode new information into his memory.
Transcript at 139. Dr. Halpern's testimony takes on added significance when considered in conjunction with the documented observations and testimony of Sadrach's teachers. For example, Ms. Poventud, Sadrach's second grade teacher at School 33, testified about witnessing Sadrach experience seizures during class and their impact on his alertness.
On many occasions he had silent episodes where the seizures were so unnoticeable that the kids would not notice that he was having a seizure, but he was, I would describe it like he was spaced out and just staring for a few minutes and then he would regain his composure and, and he wouldn't know what we were talking about in class so I would repeat, I would repeat what we, we were discussing whether it was math or science or social studies for his benefit.
Transcript at page 46 (emphasis supplied). Ms. Poventud also testified that she noticed "tremor in his hands that was constant." Id. Given that Ms. Poventud is responsible for twenty or more other students in her class, it is unlikely that she (or any teacher, for that matter) would be able to detect and observe each seizure Sadrach suffers. Indeed, in a report Ms. Poventud prepared for the GDU evaluation team she noted that "Sadrach has difficulties focusing in class for prolonged periods of time."[3]
The expert medical opinions of Dr. Halpern are unrebutted in the administrative record. The district did not present any evidence, either in the form of an expert's report or direct testimony from a medical professional, that Sadrach's seizures would not adversely affect his ability to concentrate, focus and learn. Given the strong correlation between the medical opinion of Dr. Halpern and the classroom observations of Ms. Poventud, the record strongly supports a finding that Sadrach has a condition that results in "limited alertness with respect to the educational environment" and which has adverse effects on Sadrach's educational performance. 34 C.F.R. § 300.7(b)(8).
B. Speech Impaired: Sadrach's history of speech impairment is also well documented in the administrative record. His mother reported that he did not begin to speak until he was three years old. As noted by the SRO, in a speech and language evaluation completed in May 1995 by ARC of Monroe County, Sadrach "received scores from one to three years below his chronological age on all tests of his expressive and receptive communication skills." Ms. Poventud testified that Sadrach's stuttering made him "frustrated because he couldn't get his message through." She observed that Sadrach stuttered "a lot" regardless of whether he was speaking Spanish or English. Transcript at 46-47.[4] In her March, 1998, report to the GDU, Ms. Poventud noted that Sadrach's "articulation in Spanish or English tends to be segmented (stutters a lot). Seems to have difficulties putting his thoughts in a logical order and verbalizing them."
*175 The GDU evaluation substantiates Ms. Poventud's classroom observations. In her detailed report, the GDU speech/language pathologist wrote that diagnostic test results indicated deficits in "Sadrach's ability to register auditory information in short term memory, integrate information in active working memory, and process information at the phonological level." The evaluator found that Sadrach had "diminished vocabulary understanding," had "difficulty retrieving information from memory" and "verbal organization difficulties." Although Sadrach had received his "usual dose of pyschostimulant medication prior to testing," the evaluator still found evidence of his ADHD and noted "fidgety behavior, impulsivity and distractibility" during the evaluation. The evaluator opined that Sadrach's communication, comprehension, memory and expression problems would impact his academic performance.
Academically, this will impact ability to sustain the logical development of ideas when performing written language tasks. Reading comprehension will also be impacted in that Sadrach will be unable to retain information at the beginning of a passage while reading to the end of the passage. Processing ability was further compromised by slow rate. Slow rate of processing is frequently evident in individuals who exhibit difficulty accessing memory.
The speech pathologist concluded that Sadrach's "language system is not sufficient to cope with the demands of the curriculum" and "strongly recommended" speech and language therapy.
Sadrach meets the eligibility requirements for being classified as having a "speech or language impairment" if he has a "communication disorder, such as stuttering, impaired articulation, a language impairment or voice impairment, that adversely affects" his educational performance. 34 C.F.R. § 300.7(c)(11). My review of the record here supports a finding that Sadrach meets the requirements of being "speech or language" impaired.
3. Learning Disabled: Federal regulations define a "learning disabled" child as one who has a "severe discrepancy between achievement and intellectual ability" in one or more of several listed areas, including "oral expression, listening comprehension, basic reading skills, and reading comprehension" 34 C.F.R. § 300.541. State regulations provide that the required "discrepancy" must be a "discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis." 8 N.Y.C.R.R. § 200.1(mm)(6).
The district's own psychological testing results acknowledge a startling discrepancy between Sadrach's intellectual ability and his academic achievement. Assuming they are accurate, district test results from May, 1998, establish that Sadrach has an overall I.Q. of 130, placing him in the "very superior" range of intelligence. Absent some underlying learning disorder, one would not expect a child with superior intelligence to have to repeat the second grade and have such relatively low academic achievements. Indeed, Mrs. Greenfield, the school psychologist who served on Sadrach's CSE committee, testified that Sadrach met the 50% "significant discrepancy" standard as to written language skills. Transcript at page 37. Ms. Johnson, a special education teacher and the Chair of Sadrach's CSE, committee testified that the discrepancy between Sadrach's intellectual abilities and his reading test scores "could be described as severe." Transcript at 92. The regulations do provide that the classification of learning disabled is not warranted if the discrepancy between ability and achievement is primarily the result of visual or hearing, or motor impairment, mental retardation, emotional disturbance or environmental, cultural or economic disadvantage. 34 C.F.R. § 300.541(b); 8 N.Y.C.R.R. § 200.1(mm)(6). There simply is nothing in this record, however, to attribute Sadrach's discrepancy to any of the excluded factors.
*176 Based on the foregoing, Sadrach does meet the eligibility requirements for the classification of having a "learning disability."
4. Impact of Academic Performance on Eligibility for Special Education Services: Although this Court reviewed the administrative record de novo, it did give attention and consideration to the IHO and SRO's reasoning that Sadrach's "average" performance in school was an indication that he did not qualify for special education services. The IHO expressed his view in this regard in no uncertain terms:
The district properly contends that, whatever student's difficulties, if student is able to achieve satisfactory academically, his problems do not rise to a level satisfying the definitional standards in the regulations. While the student has a number of problems, the evidence in the record shows he is achieving satisfactorily in school. He is achieving at an average level at his current grade level in regular education.
(emphasis added).
While the Court, for the reasons set forth in this decision, does not agree with the IHO's view of what the record shows regarding Sadrach's academic "achievements," the IHO's reasoning also signals what this Court believes is a fundamental error in determining eligibility for special education services. The IHO's reasoning, in effect, precludes a child whose academic achievement can be described as "satisfactory" from being able to demonstrate that documented disabilities adversely affected the student's academic performance. This should not and cannot be the litmus test for eligibility under the IDEA. The fact that a child, despite a disability, receives some educational benefit from regular classroom instruction should not disqualify the child from eligibility for special education benefits if the disabilities are demonstrated to "adversely affect the child's educational performance." 34 C.F.R. 300.7 (emphasis added). Likewise, not every child who has a disability needs special education services as a result of that disability. Each child is different, each impairment is different, and the effect of the particular impairment on the particular child's educational achievement is different. While Sadrach's academic performance in relation to his peers is one of many tools that may be considered in determining "adverse affect", denying him special education benefits because he is able to pass from grade to grade despite documented impairments that adversely affect his educational performance is wrong.
Conclusion
For the reasons set forth in this decision, I find that Sadrach Corchado is eligible for special education under the Other Health Impaired, Speech Impaired and Learning Disabled classifications. Accordingly, plaintiff's cross motion for summary judgment is granted and defendant's cross motion for summary judgment is denied.[5]
IT IS SO ORDERED.
NOTES
[1] Ms. Johnson, the chair of the CSE committee, testified that it was "uncommon" for the CSE committee to reject the recommendation of both a PPST and an independent evaluation such as the GDU report. Transcript at page 94.
[2] The SRO noted in his decision that during the 1996-1997 school year (Sadrach's first attempt at second grade), he had 21 excused and 6 unexcused absences from school.
[3] Ms. Osbourne, another of Sadrach's second grade teachers also regularly observed him experiencing seizures. She testified that Sadrach "sometimes blanked out" and "isn't there" during the seizures, but then "comes back." Transcript at page 119. Ms. Osbourne estimated she observed these episodes "at least once a week" and they lasted "anywhere from a few seconds to a minute." Id.
[4] Ms. Osboune testified that she too observed stuttering, but that she did not believe it adversely impacted Sadrach's academic performance. Transcript at page 120-21.
[5] The Second Circuit has not yet ruled on who bears the burden in federal suits seeking relief under the IDEA. See generally Wall v. Mattituck-Cutchogue School Dist., 945 F. Supp. 501, 509 (E.D.N.Y.1996)(summarizing the state of the law). For purposes of this Decision, I have assumed that the plaintiff bears the burden of proof. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918867/ | 411 B.R. 530 (2009)
In the matter of Jewett W. TUCKER, Jr., Debtor.
No. 08-40990.
United States Bankruptcy Court, S.D. Georgia, Savannah Division.
August 5, 2009.
*531 James L. Drake, Jr., Savannah, GA, James L. Paul, John K. Rezac, Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, GA, for Debtor.
ORDER ON UNITED STATES TRUSTEE'S MOTION TO DISMISS
LAMAR W. DAVIS, JR., Bankruptcy Judge.
Debtor's case was filed on June 5, 2008. On January 14, 2009, the United States Trustee filed a Motion to Dismiss or to Convert the Case to Chapter 7 alleging inter alia that Debtor had failed to file monthly operating reports with the United States Trustee's Office and had failed to amend his schedules in order to address earlier errors and omissions or inconsistencies in the reports which had been called to his attention. Motion, Case No. 08-40791, Dckt. No. 16Q. The Motion was set for a hearing in February 2009, and on the eve of that hearing, Debtor filed seven months of monthly operating reports and numerous amendments to his schedules.[1] That hearing was continued because of the lengthy trial of matters related to Debtor's solely owned company Vallambrosa Holdings, L.L.C. ("Vallambrosa"). During the spring of 2009, there was a further interruption of the filing of monthly operating reports. Debtor filed his February 2009 operating report on April 17, 2009. See Operating Report, Case No. 08-40791, Dckt. No. 251. On April 22, 2009, the United States Trustee filed a request to schedule a hearing, and later on June 2, 2009, filed a second request for a hearing on his motion to dismiss or convert. See Motions, Case No. 08-40791, Dckt. Nos. 255 and 263. This matter was scheduled for hearing on June 22, 2009, pursuant to the United States Trustee's request, and monthly operating reports for March and April 2009 were filed over the weekend prior to the hearing. See Reports, Case No. 08-40791, Dckt. Nos. 272 and 273 (June 19, 2009). Debtor filed his May 2009 operating report on June 23, 2009. Report, Dckt. No. 71.
Debtor takes the position that his delay in the filing of his monthly operating reports and amended schedules was excusable (1) because his wife, from whom he is estranged, formerly maintained many of the records which he needed in order to provide the necessary information, and she did not provide the records in a timely manner, and (2) because he was unable to *532 handle his affairs since a defibrillating device was placed in his heart, and ultimately an aortic heart valve replacement was needed in the spring of this year. Now that his medical situation has stabilized and he has hired an assistant, he believes he has filed all the necessary papers, thus any delay in the filing of these should be excused. I conclude that, in fact, there is a good basis for Debtor to be excused from the tardy filing of the first seven reports, but he is not excused from any inaccuracies or substantive deficiencies in those reports. Furthermore, because he hired an assistant to help him in filing his reports, I conclude any further delays were not excusable.
Under 11 U.S.C. § 1106(a)(1), a debtorin-possession is required to perform the duties specified in § 704(8) which mandates the filing of periodic operating reports and summaries and such other information as the United States Trustee or Court requires if the business of the debtor is authorized to be operated. An "unexcused failure to satisfy timely any filing or reporting requirement established by [the Bankruptcy Code] or by any rule applicable to a case under [Chapter 11]" is cause for relief under § 1112(b)(4)(F). The United States Trustee is charged with supervising the administration of Chapter 11 cases, including the debtor's performance of its statutory and fiduciary responsibilities. 28 U.S.C. § 586(a)(3). To perform the role assigned to it by Congress, the United States Trustee has adopted reporting requirements embodied in its Guidelines that a debtor-in-possession is required to fulfill. Failure to "timely provide information or attend meetings reasonably requested by the United States Trustee" also constitutes cause for relief. 11 U.S.C. § 1112(b)(4)(H). Contending that Debtor has not filed timely and complete operating reports, the United States Trustee seeks relief under § 1112(b) as it is expressly charged to do under 28 U.S.C. § 586(a)(8).[2]
Although Debtor contends that the gist of the United States Trustee's Motion concerns the timeliness of his reporting and objects to any evidence relating to the accuracy of his reporting, I allowed that additional evidence at the hearing. To do otherwise would make a mockery of Debtor's reporting obligations. Filing a piece of paper is meaningless if the content is inaccurate, misleading, or wrong, thus the content of these documents is always relevant. See In re Kholyavka, 2008 WL 3887653. at *4 (Bankr.E.D.Pa. Aug. 20, 2008); In re Rey, 2006 WL 2457435, at *8-9 (Bankr.N.D.Ill. Aug.21, 2006) (Pre-BAPCPA).
Debtor's monthly operating reports are incomplete, misleading, and materially false in some respects. In Debtor's initial monthly operating report (Exhibit UST-6) and his most recent one (Exhibit UST-7), Debtor reports "zero" as the monthly and cumulative totals of household and business receipts and disbursements and also shows "zero" cash on hand for either household or business purposes. In the supporting schedule, he reports "zero" receipts in the categories salary, wages, interest or dividend, alimony or child support, Social Security, pension and retirement, sale of assets, loan/borrowing from outside sources, or "other." However, he shows monthly disbursements in June 2008 of $8,748.69 and *533 in April 2009 of $3,299.78.[3] This schedule also reveals how these expenses are paid: "Debtor's expenses are paid directly by non-filing entitiessee attachments." The source of each specific disbursement, however, is not revealed anywhere in the monthly operating report.[4] In addition, in the questionnaire which is attached to the monthly operating report, question five asks "have any post-petition loans been received by the debtor from any party?" Debtor marked the answer "no."
These entries in the monthly operating reports are materially false in the following respects.
1) Debtor testified that in the spring of this year, he borrowed $30,000.00 from a friend, Buddy Glawson, and that transaction is not revealed in the monthly operating reports.[5]
2) His schedules reveal no financial obligation to Southeast Timberlands or to Kings Ferry Plantation, and yet his testimony is that the disbursements made by one or both of those entities on his behalf for the payment of expenses as outlined above is not income to him but instead is a loan.[6]
Debtor's schedules are also inconsistent in other ways. For example, a personal financial statement delivered to Canpartners as part of the loan approval process for Vallambrosa, (Exhibit UST-2) shows a 73 acre tract on Interstate 75 near Warner Robins, Georgia, titled in the name of "Jewett Tucker" valued at $4.5 million. However, he did not list this tract in Schedule A or his response to the Statement of Affairs question 10(a). See Exhibits UST-1; UST-3. That question requires disclosure of real estate transfers within the past two years, a time frame which would encompass the date of the financial statement. See Exhibit UST-2. At the *534 hearing Tucker testified that the 73 acre tract was sold in May or June of 2008 for around $4.5 million but that it was owned by Southeast Timberlands. In his post-hearing response, Debtor argues that the 73 acres was included in his Schedule A as part of "222 acres in Oglethorpe County, Georgia ..." Response, Dckt. No. 72, p. 12-13. Despite his assertion, I take judicial notice of the fact that Warner Robins is located in Peach County, Georgia, over seventy-five miles and across five county lines from Oglethorpe County. Nowhere does Interstate 75 cross Oglethorpe County or indeed come within a seventy-five mile radius of it. I stand by my conclusion that this property was not listed in Schedule A.
In summary, when he filed this case, he failed to list a $4.5 million asset shown on a 2006 financial statement, and has now contradicted himself as to whether he sold it between 2006 and 2008, or whether it was owned by his LLC, or whether he still owns it, but identified it in his schedules in a locale far away from its actual location. See Supplemental Response, Dckt. No. 72, pgs. 12-13. Omission of either the ownership or the transfer of a $4.5 million dollar asset from schedules filed under oath or efforts at obfuscation of the truth of asset ownership cannot be excused.
In addition, Debtor has failed even at this stage to disclose assets which were discovered during the course of the testimony in this hearing:
1) He leases or owns a lake cabin on Lake Allatoona north of Atlanta, Georgia, which is not revealed anywhere in the schedules nor is any value assigned to it. See June 2008 Operating Report, Case No. 08-40791, Dckt. No. 205, pg. 3 (February 18, 2009).
2) He is the sole owner of Red Top Mountain, L.L.C., a limited liability company still registered with the Georgia Secretary of State, although he testifies that it no longer owns any real estate interests having divested itself sometime pre-petition.[7] Even the alleged lack of value of a concealed asset does not exculpate Debtor. See UST Exhibit 4; Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618-19 (11th Cir.1984).
3) According to his testimony and reports, Southeast Timberlands also advanced the retainers of $100,000.00 for his case and the Vallambrosa case which were paid to counsel, has paid his medical bills, and advanced a $20,000.00 fee for certain experts in the Vallambrosa case. See Exhibit UST-1, Statement of Financial Affairs, Question No. 9. Yet he asserts in his monthly operating reports that his income is zero, he shows no receipt of these funds and reports no account payable obligation for them. At the hearing, Debtor took the position that these sums represent loans by Southeast Timberlands to him. These loans were presumably taken in addition to the monthly household expenses referenced earlier which vary month-to-month but have been in the thousands of dollars. He testified he was unsure of the total amount owed to Southeast Timberlands, and though Southeast Timberlands would probably be one of his largest unsecured creditors, he did not list Southeast Timberlands as a creditor on his schedules or on any of *535 his monthly operating reports. See Exhibits UST-1, 6 and 7.
I sum, I agree with Debtor's contention that the delay in filing his initial schedules and operating reports was justified by the severe and life-threatening medical problems which he suffered from during the pendency of this case. However, comparison of his monthly operating reports, his schedules, his statement of affairs now on file, and his testimony from the June 22, 2009, hearing with the financial statement delivered to a major lender in 2006 in the Vallambrosa Chapter 11, a debt for which he has personally guaranteed repayment, reveals that Debtor has failed to adhere to the high standards required of a Chapter 11 debtor-in-possession who holds fiduciary responsibility to his creditors by providing accurate and complete monthly operating reports
Furthermore, Debtor's late filing of his monthly operating reports after February 18, 2009, is not excusable. However unlikely it might seem that he would have entrusted the complexities and the details of maintaining business records to his spouse from whom he is now estranged and whose lack of cooperation is blamed for certain deficiencies in his filings on February 18, 2009, he has since hired an administrative assistant and clearly has used well-compensated professionals to handle his tax and legal matters for years. As a result, especially after being alerted to the obvious-that filing timely reports was essentialhis delays in filing the January 2009 through April 2009 monthly operating reports are unacceptable and his excuses are not justified. "Operating reports and the financial disclosures accompanying them are the life-blood of the Chapter 11 process." In other words, "[t]hey are the means by which creditors can monitor debtor's post-petition operations and as such, are an important obligation of a debtor-in-possession." Debtor's inability to timely file these reports, or to insure their accuracy after hiring an assistant, evidences "habitual noncompliance [which] calls in to question a debtor's ability to effectively reorganize." In re 210 West Liberty Holdings, LLC, 2009 WL 1522047, at *7 (Bankr.N.D.W.Va. May 29, 2009).
Indeed, with a net worth shown on his schedules of $44,932,723.53 and with direct or indirect land ownership in the thousands of acres, it requires a complete suspension of disbelief to accept his explanation for the tardiness or the inaccuracies in these monthly operating reports. Nevertheless, accepting that testimony as a sufficient explanation for the earlier delays, the current filings reveal that Debtor either cannot or will not file his obligations timely and disclose fully to the Court, to the United States Trustee, or the creditors in his case the full extent of the assets that he holds, the debt that he owes, and the nature and source of income he receives. I find that his most recent delays and the inconsistencies and omissions outlined supra constitute a failure to timely provide information within the meaning of 11 U.S.C. § 1112(b)(4)(H) & (F). As a result, it is clear that "cause" exists and that the case must either be dismissed or converted to Chapter 7, whichever is in the best interest of creditors and the estate. See § 1112(b)(1).
I conclude that conversion to Chapter 7 is in the best interest of creditors and the estate because:
1) The case has been pending for over a year during which time Debtor has benefitted from the automatic stay and creditors have been held at bay. Debtor chose this forum to deal with his creditors and cannot now be permitted the luxury of an unfettered right to simply dismiss. This is especially true *536 in light of the objections of a substantial creditor and the United States Trustee who as of now have the right or duty to employ federal bankruptcy law for its lawful purposes and should not lose that right at the whim of Debtor.
2) Debtor has not fully and completely adhered to his duties as a debtor-in-possession and should not, in the context of late, incomplete, or misleading disclosures be permitted to dismiss even if bankruptcy jurisdiction had not been invoked for such an extended period of time.
3) While dismissal would subject Debtor to a full range of state law creditor remedies, no dismissal could irrevocably preclude him from seeking bankruptcy relief in the future should adverse collection efforts by his creditors in state court later prove onerous or unpleasant to him.
ORDER
Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER OF THIS COURT that the case is converted to Chapter 7.
NOTES
[1] This Court had an initial hearing on February 2, 2009 on the Trustee's motion. That hearing was then continued to February 19, 2009. On February 18, 2009, Debtor filed seven months of operating reports, several of his schedules, and his statement of financial affairs. See Case No. 08-40791, Dckt. Nos. 198-211.
[2] The Bankruptcy Abuse Prevention and Consumer Protection Act added to that section that "in any case in which the. United States trustee finds material grounds for relief under Section 1112 of Title 11, the United States trustee shall apply promptly after making that finding to the court for relief." 28 U.S.C. § 586(a)(8).
[3] These two monthly operating reports contain the same information, though the expenses vary in amount, as all the other monthly operating reports filed with this Court.
[4] Debtor does note that expenses are paid by Southeast Timberlands, Inc., and Kings Ferry Plantation, Inc., but Debtor does not provide any information regarding which expenses are paid by which entity nor any breakdown of the specific amounts.
[5] In Debtor's response filed several weeks after the hearing, Debtor argues that this payment was a gift and not a debt owed by him thus he did not need to reflect this as income or post-petition debt on his monthly operating reports. See Response, Dckt. No. 72, pgs. 17-18. Leaving aside for the moment the fact that Debtor now attempts to introduce new evidence, at the hearing, Debtor testified that this was a loan. Regardless, no matter how one characterizes the payment, $30,000.00 should have been reported as a cash receipt on his monthly operating report.
[6] This fact alone is a ground for dismissal under 11 U.S.C. § 1112(b)(4)(B). Section 1112(b)(4)(B) provides that "cause" is present to convert or dismiss a case where there has been "gross mismanagement" of the estate. Debtor has reported that third parties have been advancing money to pay for his expenses, all the while reporting that he has not received any income during the course of this bankruptcy case. No court approval was sought to authorize Debtor to borrow funds. Despite Debtor's assertions these advances are loans at the hearing, it is still unclear whether the sums advanced to Debtor are gifts, capital contributions to Debtor, or loans made with the expectation of repayment, especially in light of the fact that Debtor has not produced any documentation describing these specific transactions. "The point here is only that these sums of money are being transferred by third parties to the debtor without full, timely disclosure to the court and parties in interest, or, if required, approval by the court for engaging in some form of post-petition financing." In re 210 West Liberty Holdings, L.L.C., 2009 WL 1522047, at *6 (Bankr.N.D.W.Va. May 29, 2009). In this Court's view, the above is sufficient to constitute cause to convert or dismiss this case under 11 U.S.C. § 1112(b)(4)(B).
[7] In his response after the hearing, Debtor asserts that the company does not currently own any property and that the confusion arose because his "assistant was unaware that Red Top Mountain, L.L.C., was [a] single asset company, which assets were sold off in 2000; and during February 2009, [his assistant] processed a computer generated corporate renewal invoice ... without understanding that it was a dormant company." Response, Dckt. No. 72, pgs. 14-15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585113/ | 147 Mich. App. 438 (1985)
382 N.W.2d 793
PELLENZ
v.
KNIGHTS OF COLUMBUS
Docket No. 79803.
Michigan Court of Appeals.
Decided December 2, 1985.
Anthony M. Damiano, for plaintiff.
Peter Patrick, P.C. (by Philip A. Costello), for defendant.
Before: GRIBBS, P.J., and CYNAR and P.J. DUGGAN,[*] JJ.
P.J. DUGGAN, J.
Plaintiff was designated the beneficiary on her husband's life insurance policy with defendant Knights of Columbus. Following her husband's death, plaintiff submitted a claim for life insurance proceeds which was denied by defendant Knights of Columbus on the basis that her husband, Glenn Pellenz, had made false statements on his application for life insurance. Following the denial, plaintiff filed suit. Defendants sought summary judgment pursuant to GCR 1963, 117.2(1), claiming that plaintiff's complaint failed to state a cause of action, and pursuant to GCR 1963, 117.2(3), claiming that it was undisputed *440 that the applicant made false statements and therefore, as a matter of law, defendants were entitled to summary judgment.
Although defendants' motion was brought pursuant to both GCR 1963, 117.2(1) and 117.2(3), it is clear that the parties and the trial judge essentially treated defendants' motion as one brought pursuant to GCR 1963, 117.2(3). In granting defendants' motion for summary judgment, the trial judge relied significantly on information outside of the pleadings. In particular, he relied on deposition testimony, and, based on such information, the trial judge concluded that there was no genuine issue of fact. We shall therefore review the trial court's decision as a grant of summary judgment pursuant to GCR 1963, 117.2(3). Lawrence v Dep't of Treasury, 140 Mich App 490, 494; 364 NW2d 733 (1985); Huff v Ford Motor Co, 127 Mich App 287, 293; 338 NW2d 387 (1983).
The life insurance application specifically inquired as to whether or not the applicant had ever received treatment, attention, or advice from any physician for any lung disease or for any disorder of the lymph glands. The applicant answered these questions in the negative. The deposition testimony of the physicians indicates that these answers were false. The deposition testimony clearly shows that Mr. Pellenz consulted with at least two physicians and was advised by these physicians that he had possible lung cancer or a tumor in the lymph nodes. We agree with the trial court's conclusion that Mr. Pellenz knowingly caused false information to be placed on the application for insurance and that those misrepresentations materially affected the insurer's acceptance of the risk.
Plaintiff argues that, even if her husband gave false information on the application, the agent for defendant Knights of Columbus knew that such *441 information was false and that knowledge of the true facts on the part of the agent is imputed to the principal, thereby estopping defendant Knights of Columbus from denying coverage. See Hughes v John Hancock Mutual Life Ins Co, 351 Mich 302; 88 NW2d 557 (1958).
Defendant Knights of Columbus denies that full disclosure was made to the agent. Defendant Knights of Columbus further contends that, even if full disclosure had been made to its agent, the imputation of such knowledge to the principal is vitiated because plaintiff's deposition testimony reveals that her husband connived with its agent.
In Kane v Detroit Life Ins Co, 204 Mich 357, 364; 170 NW 35 (1918), the Court quoted from Ketchum v American Mutual Accident Ass'n, 117 Mich 521, 523; 76 NW 5 (1898), stating the general rule regarding "connivance" as follows:
"The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents." (Emphasis supplied.)
The Kane Court held that, because there was persuasive proof of the assured's fraudulent intent, the factual issue of whether defendant insurance agent had actual knowledge that the statements were false became immaterial.
The Court in Hughes, supra, while recognizing the general rule that information conveyed to the *442 insurer's agents will constitute information to the insurer and estop the insurer from denying coverage, did recognize that a different principle will be involved where there has been connivance between the agent and the insured:
"True, and as in the law of fraud generally, evidence tending to establish that the party accused of fraud has pertinently connived with the agent will, if believed by the trier and triers of fact, automatically vitiate such rule of imputation." Hughes, supra, p 310.
Generally, the applicant has a right to assume that information conveyed to the agent will be communicated to the insurer. In order for defendant to be entitled to a summary judgment, the evidence must show (1) that Mr. Pellenz knowingly made material misrepresentations of fact despite disclosure of true facts to the agent, (2) that Mr. Pellenz expected and intended the false information to be submitted to the insurer, and (3) that Mr. Pellenz expected that the insurer would rely on such false information in providing insurance coverage.
The trial court held that reasonable minds could not differ as to the fraudulent intent on the part of Mr. Pellenz. We agree. Plaintiff testified that Mr. Pellenz knew that the answers recorded were false. She further testified that the agent told Mr. Pellenz that they would not indicate, on the application, the medical problems he was having (which had yet to be positively diagnosed) because "if it's something serious I hope you make it for two years". The testimony of plaintiff further supports the trial court's conclusion that Mr. Pellenz was aware of the fact that the insurer would not know that the information on the application was false, but that he believed that the false statements would not make any difference if he lived for two *443 more years.[1] A party is bound by his deposition testimony. Hollowell v Career Decisions, Inc, 100 Mich App 561; 298 NW2d 915 (1980). Taking all the evidence in a light most favorable to plaintiff, reasonable minds could not differ as to the fact that plaintiff's husband knowingly made false answers on the insurance application with the intent to deceive the insurance company.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The policy provided that, if it remained in effect for two years, it would be incontestable except for nonpayment of premiums. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585117/ | 147 Mich. App. 312 (1985)
382 N.W.2d 778
TRUSSELL
v.
DECKER
Docket No. 81640.
Michigan Court of Appeals.
Decided November 19, 1985.
William R. Thompson, for plaintiff.
Miller, Canfield, Paddock & Stone (by Thomas C. Phillips and Timothy S. Knowlton), for defendants.
Before: M.J. KELLY, P.J., and ALLEN and R.M. SHUSTER,[*] JJ.
PER CURIAM.
In this matter of first impression *314 we are asked to decide the sufficiency of notice given plaintiff of a proposed special assessment district for a water improvement project to be constructed by the township under MCL 41.721 et seq.; MSA 5.2770(51) et seq. On June 8, 1984, the trial court found the notice to be insufficent and issued an order enjoining defendants from proceeding with the project, the preparation of the assessment roll based upon the creation of a special assessment district, and declaring the resolution establishing the special assessment district void. From the order so issued, defendants appeal as of right.
Defendant Keith M. Decker is the township supervisor of defendant Union Township, a township of more than 2,000 persons in Isabella County. On April 4, 1984, defendant township initiated proceedings under 1954 PA 188, as amended, MCL 41.721 et seq.; MSA 5.2770(51) et seq., by adopting a resolution to design and build a water system in the eastern portion of the township, which district included the property owned by the plaintiff, the cost of which water system would be paid through a special assessment levied against the properties located in the district. On the same date, after receiving their engineer's report, the township adopted a resolution to hold a public hearing on the proposed plan.
On May 4, 1984, plaintiff received notice of the proposed improvement and assessment district and the fact that a public hearing would be held on May 15, 1984. However, the notice did not inform plaintiff of her right to referendum under MCL 41.723(1)(b); MSA 5.2770(53)(1)(b). Under that section the proposed improvement could not be made "if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections *315 thereto with the township board at or before the hearing".
Plaintiff attended the public hearing on May 15, 1984, and objected to the proposed improvement. At the meeting plaintiff for the first time learned of the right to a referendum on the proposed project. At the meeting the township board adopted a resolution to proceed with the improvement and directed defendant supervisor to prepare a special assessment roll. Thereafter, plaintiff contacted an attorney who advised her that the right to referendum could only be effective if the written objections of 20% of the property owners were filed at or before the public hearing of May 15, 1984.
On May 29, 1984, plaintiff filed her complaint to enjoin the township and the township supervisor from creating a proposed special assessment district for water improvements and from preparing a special assessment roll. The complaint alleged both that the notice sent to property owners in the proposed district, including plaintiff, did not comply with the applicable statutory requirements and that the notice of the proposed district and improvements denied plaintiff due process of law under the federal and state constitutions.
On June 5, 1984, a hearing was held on plaintiff's order to show cause why an injunction should not be issued, restraining defendants from proceeding with the water improvement project. At the hearing plaintiff testified and the parties stipulated to the facts hereinbefore recited. On June 8, 1984, the trial judge issued an opinion enjoining defendants from proceeding with the project. The basis of the court's decision was that the notice given plaintiff was misleading and denied plaintiff due process of law. At the same time the court found that the notice complied with the requirements *316 for notice set forth in §§ 4 and 4a of the statute. MCL 41.724a; MSA 5.2770(54a). As explained by the court:
"In the case here under consideration, plaintiff would have had to file her written objections at or before the May 15, 1984 public meeting, and she would have had to have had sufficient co-objections (record owners of land) to constitute `more than 20%' of the total land area in the special assessment district. Was there anything any wording whatsoever contained in the Notice she was mailed which told her either of those things? The answer is obvious. Not only was she not told of these two requirements, but the statutory language contained in the notice is so inherently deceptive and misleading as to lead her to believe to the contrary: `All objections and comments pertaining to said improvement will be heard at said hearing.' Like the taxpayer in Alan v Wayne County, 388 Mich 210, 331 (1972) she was `lulled to sleep' by being told that `all objections * * * will be heard.' Plaintiff in the case here under consideration could no more make an informed judgment about the fact that her objections needed to be in writing and about whether she should start organizing her friends and neighbors to file such objections `to prevent the imposition of a potentially enormous additional tax buden' than the Plaintiffs in the Alan case." (Emphasis supplied by the trial court.)
One issue is raised on appeal, viz.: Was plaintiff denied due process of law by the notice informing her of the right to object to proposed water improvements because the notice did not include information not legislatively mandated to be included in the notice? Shortly before October 2, 1985, the date set for oral argument on appeal, plaintiff's trial counsel filed a "Motion to Dismiss Appeal as Moot" together with a supporting brief. At the request of this Court, plaintiff's counsel appeared at oral argument. Counsel argued that the case was rendered moot because Union Township, *317 by two resolutions adopted August 7, 1985, proposed a different special assessment district which did not include plaintiff's property and set August 22, 1985, as the date for hearing thereon.
Attached to counsel's brief was a copy of the resolutions establishing a new proposed district, the last paragraph of which stated that "all resolutions and parts of resolutions insofar as they conflict with the provisions of this resolution be and the same hereby are rescinded". Counsel argued that the township board's action on August 7, 1985, effectively cancelled the water improvement district proposed on April 4, 1984. Furthermore, counsel noted that the notice of the public hearing given residents of the proposed new district contained all of the information which plaintiff contended should have been included in the notice of the public hearing of May 15, 1984.[1]
In response defendants' counsel argued, and at the request of the Court subsequently filed a brief, that the resolution adopted August 7, 1985, was expressly worded as "a tentative determination" and that no final decision had yet been made by the township board to abandon the special accessment district created by the board's resolution of May 22, 1984. Counsel explained that the reason why the first proposed assessment district had not been abandoned was because 20% of the record property owners had filed objections to the project at the public hearing and the board was waiting to see if a petition containing signatures of 51% of *318 the proposed district petitioning the township to proceed with the project would be filed. Attached to defendant's brief as Exhibit A was a copy of the township board's resolution adopted October 2, 1985, reading in relevant part:
"NOW THEREFORE, BE IT RESOLVED THAT:
"1. No final decision has been made by the Township Board to abandon the special assessment district created by this Board's `Resolution No. 3' adopted on May 22, 1984. Depending on the outcome of the appeal concerning this special assessment district, and whether owners of land constituting at least 51% of the special assessment district created by adoption of `Resolution No. 2' by the Township Board on August 7, 1985, petition the Township to proceed with the proposed improvements, the Township Board may elect to prepare an assessment roll and proceed with the water improvement project created by `Resolution No. 3', adopted on May 22, 1984.
"2. The Township Board instructs Miller, Canfield, Paddock and Stone to continue to prosecute the Township's appeal concerning whether the special assessment district created by `Resolution No. 3' on May 22, 1984, was created in a lawful manner.
"3. All resolutions and parts of resolutions insofar as they conflict with the provisions of this resolution be and the same hereby are rescinded."
Based on the above facts we conclude that a final decision has not yet been made to abandon proceeding with the water project initially proposed and involved in the instant case. Accordingly, we hold that the present appeal is not moot and deny plaintiff's motion.
The establishment of township special water improvement districts is governed by 1954 PA 188 as amended, MCL 41.721 et seq.; MSA 5.2770(51) et seq. Under § 3(b) of the statute water main improvements may be instituted in two ways: (1) *319 by petition signed by owners of 51% of the land area in the proposed district, (2) in townships exceeding 2,000 in population, on the township board's own initiative, "but an improvement shall not be made without petition if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the township board at or before the hearing described in section 4 of this act". MCL 41.723; MSA 5.2770(53).
Section 4 of the statute requires: (1) that a notice fixing a time and place for a meeting to hear objections to the improvement and special assessment district be prepared; (2) publication of the notice of the hearing as to the proposed district two times before the hearing; (3) a statement in the notice that plans and estimates for the project are on file with the township clerk for public examination; and (4) that a description of the proposed assessment district be included in the notice. In addition, § 4a of the act, MCL 41.724a(2); MSA 5.2770(54a)(2), mandates that the notice of the proposed improvement district be mailed by first class mail to owners of properties to be included in the assessment district at least ten days prior to the hearing on whether the district should be established.
The published and mailed notice of the public hearing to be held May 15, 1984, advised plaintiff and the other affected property owners within the proposed district of the proposed special assessment district and of the time and place of the public hearing at which objections could be heard but did not contain any reference to the fact that the improvement could not be made "if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the township *320 board at or before" the hearing May 15, 1984. The notice sent to plaintiff and other residents within the district read as follows (emphasis added):
"NOTICE OF HEARING ON SPECIAL ASSESSMENT IMPROVEMENT BY UNION
TOWNSHIP BOARD
_________________________________________________________
"TO THE OWNERS OF ALL LOTS AND PARCELS OF PROPERTY ABUTTING THE
FOLLOWING DESCRIBED IMPROVEMENT:
* * *
"WHEREAS, the Union Township Board has tentatively determined to make certain water improvements consisting of water mains together with necessary attachements and appurtenances thereto; and
"WHEREAS, this Board having tentatively declared its intention to make such improvement and tentatively designated the above described premises as a special assessment district against which the cost of said improvement is to be assessed; and
"WHEREAS, this Board has caused to be prepared plans showing the improvement, the location thereof and an estimate of the costs thereof which have been filed with the Union Township Clerk, Union Township, Isabella County, Michigan, for public examination.
"Public notice is hereby given that this Board will meet on May 15, 1984, at 8:00 p.m., Eastern Standard Time, at the West Intermediate School, 440 S. Bradley, Mt. Pleasant, Michigan, to hear objections to the petition, to the improvement and to the special accessment district therefore.
"All objections and comments pertaining to said improvement will be heard at said hearing.
"/s/ Marion L. McDonald
Union Township Clerk"
The thrust of plaintiff's argument at the hearing of June 5, 1984, was that the notice was deficient in that it failed to include a specific reference to *321 the statutory provision that the proposed improvement could not be made if objections of 20% of property owners within the district were filed on or before the date set for the public hearing. Without such notice, counsel argued, his client was shut off and her attendance at the meeting was without avail:
"Mrs. Trussell went out there, ready, willing and able to object, unfortunately for her, she either didn't go to law school, or hadn't talked to a lawyer, or wasn't sophisticated enough to read the Public Acts of this State, so she didn't know that her objections had to be in writing, had to be signed by owners of more than 20 per cent of the area involved, and of those objection [sic] had to be filed at or before that meeting, 8:00 p.m., May 15th because if they weren't your Honor, then her appearance at that hearing and every man, woman and child who owned that property showed up and said we don't want it, the Board could of, in fact, in substance did say, `We don't care.'
"Because her rights and the rights of all her neighbors were then shut-off, they have no further recourse.
* * *
"The most critical factor, that it must state, is that the Township is proceeding by it's own Resolution and that is Mrs. Trussell and other persons in the affected area want to object then their objections must be in writing and must be filed at or before the meeting and signed by, oh, 20 per cent owners of the record of 20 per cent of the area involved. Now, had the notice set forth that information, Mrs. Trussell would have then been armed as would her neighbors with the information necessary to know that it's not the attendance at the meeting that makes any difference, it's getting the objections in the proper form." (Emphasis supplied.)
In effect, counsel's argument is that the only way plaintiff could object to the improvement was to file petitions of 20% of the property owners of the proposed district at or before the public hearing, *322 and, accordingly, without an express reference in the notice to the remedy available to plaintiff in § 3(b) of the statute,[2] plaintiff was deprived of due process of law, or the statute itself was unconstitutional. In reply, defendants contend that the statute requires notice of a public hearing not notice that an organized minority of affected property owners could halt the proposed project and that the Michigan Supreme Court has never held that the citizenry is entitled to special notice of all of its rights arising out of a given governmental action.
We decline to hold that notice of hearing is insufficient and a denial of due process unless the notice contains a reference to other statutory provisions available to the person affected. With the possible exception of Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972), plaintiff cites no authority, nor have we found any, which requires a notice to contain a cross-reference to other remedies. Municipal authorities have enough trouble implementing needed public improvements without the Court's further complicating the process.
Further, we disagree with plaintiff's argument that if Mrs. Trussell wanted to object, her objections "had to be in writing, had to be signed by more than 20% of the area involved" and "had to be filed at or before 8:00 p.m., May 15" because if they were not, she was shut off. Plaintiff's right to object at the hearing was not dependent upon the filing of a written petition. Under the statute she was entitled to appear and voice objections. This she did and apparently with some success since two of the five-member township board changed their votes to "No" on going ahead with the proposed improvement.[3]
*323 However, our conclusion in the above respect does not necessarily indicate that the trial court erred. For the trial court's decision does not rest solely upon the lack of a specific reference to the 20% written objection provision in § 3(b). The trial court also found that the notice actually given contributed to the plaintiff's and other property owners' not pursuing all of their statutory rights. In any proceeding involving notice, due process requires that the notice given be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections", Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950).
In Ridenour v Bay County, 366 Mich 225, 242; 114 NW2d 172 (1962), a special assessment project was set aside on grounds that the notice was insufficient because it was not given by mail but only by publication. Recently, in Alan, supra, notice that the county proposed to raise $371,000,000 through the issuance of revenue bonds for the construction of a downtown stadium was found insufficient because it misrepresented how and from what sources the funds to pay the bondholders would be raised. Although Alan is factually different from the instant case, primarily because it involved a situation where the local government misrepresented the nature of the issue rather than, as here, an omission of what could be done at or before the public meeting to delay or defeat the proposed improvement, the Alan Court stressed that a notice must be worded in a manner which would not mislead a taxpayer or voter in deciding how to respond to the notice given:
*324 "In giving notice to taxpayers regarding public securities, to comport with due process the notice must be phrased with the general legal sophistication of its beneficiaries in mind. As phrased it must not make any misleading or untrue statement; [sic] or fail to explain, or omit any fact which would be important to the taxpayer or elector in deciding to exercise his right. In short, the notice may not be misleading under all the circumstances." 388 Mich 353.
Applying the above case law to the instant situation, we now inquire whether notice given plaintiff was sufficient. We think it was not for two reasons. First, the notice published in the newspaper and sent to plaintiff and other residents did not clearly state that the proposed project was a township board initiated project rather than a project undertaken following receipt of a petition signed by 51% of the landowners in the area.[4] Without definitely knowing under which of the two ways authorized under § 3(b) of the statute the improvements were being instituted, the property owner would not know the manner in which he or she should respond prior to the date set for public hearing.
Second, the final sentence in the notice indicates that all objections and comments pertaining to the water project would be heard at the hearing. Not only did it not inform plaintiff that her objections should be presented in writing at or before the hearing in order to preserve her right under the statute to join with 20% of the landowners in stopping the project, the notice implied that the only available forum for objections to the water *325 project was to be present at the May 15 hearing and voice objections.
Although persons sophisticated in the law, such as lawyers, judges and elected officials, might well realize, or at least suspect, that they have rights under statutes other than those set forth in a public notice, the average resident of Union Township reading the notice might well conclude that his only right, at least until the date and time of the public hearing, was to attend the public hearing and voice his objections. This is particularly so because of the last sentence in the notice which stated that all objections and comments concerning the proposed project would be heard at the meeting.
Accordingly, we conclude that the trial court correctly determined that the notice given in the instant case denied due process and was insufficient. Not only must the notice comply with the requirements of the statute, it must not be worded in such a way that it precludes the people affected from discovering or exercising other rights they may have under other applicable statutes.
Affirmed. No costs, a question of public importance being involved.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] "The foregoing improvements may be made by the township board without petition providing that the record owners of lands constituting more than 20% of the total land area described above do not file written objections thereto with the township board at or before the hearing to be held August 22, 1985. In the event of the filing of such petition, the foregoing improvements may not be undertaken without a petition signed by the record owner of lands constituting at least 51% of the special assessment district as finally thereafter established by the township board."
[2] MCL 41.723; MSA 5.2770(53).
[3] All five members of the township board approved the proposed assessment district on April 4, 1984. Following the public hearing on May 15, 1984, the board voted three to two to proceed.
[4] While the notice did state that the township board had "determined to make certain water improvements", and had "declared its intention to make such improvements", it is unclear whether such decision was made on the board's own initiative or in response to petitions received from 51% of the district's landowners. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586333/ | 3 Wis.2d 591 (1958)
KORPELA, Respondent,
vs.
REDLIN and others, Appellants.
Supreme Court of Wisconsin.
March 5, 1958.
April 8, 1958.
*595 For the appellants there was a brief by Vaudreuil & Vaudreuil of Kenosha, and oral argument by Leo E. Vaudreuil.
For the respondent there was a brief and oral argument by Donald F. Boyle of Kenosha.
FAIRCHILD, J.
The principal questions raised by appellants are: (1) That as a matter of law Redlin was not negligent as to speed, (2) that if negligent, his speed was not causal, (3) that the court should not have granted a new trial in the interest of justice, and (4) that the damages found by the jury are excessive. We conclude that the finding as to speed is supported by the evidence as well as the finding that it was causal and that the trial court did not abuse its discretion in granting a new trial in the interests of justice and in limiting the new trial so as to permit the finding on damages to stand. Accordingly, we reach the conclusion that the order granting a new trial is to be affirmed.
(1) Negligence as to speed. There are two reasons why the evidence presented a jury question as to excessive or dangerous speed. Redlin testified several times that when he was 500 feet north of the intersection, Johnson was 500 feet south of it. This testimony would lead to the conclusion that Redlin and Johnson were traveling at approximately the same average speed. Redlin also testified, however, that when he was 500 feet north of the intersection, Johnson was entering the intersection. Johnson's speed while in the intersection was placed at from 10 to 15 miles per hour. On the basis of this testimony, Johnson would have traveled a relatively few feet while Redlin was traveling 500 feet, and the jury could properly find that Redlin was traveling more than 40 miles per hour and thus exceeding the legal limit at that place.
In addition sec. 85.40 (2) (a), Stats. 1955, prohibits a speed greater than is reasonable and prudent in view of the conditions and hazards existing and requires an appropriate *596 reduced speed when approaching an intersection and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions. The testimony was that the highway was "slick" and apparently Redlin understood for some period prior to reaching the intersection that Johnson was contemplating a left turn. The tractor-trailer unit weighed 32,000 pounds. Thus it was a jury question whether even the speed of 28 or 30 miles per hour, admitted by Redlin, was negligent.
(2) Excessive speed was causal. If the speed were excessive the jury could find that it was causal because it made it more difficult for Redlin to slow down or stop in time to avoid the collision. Heagney v. Sellen (1956), 272 Wis. 107, 112, 74 N. W. (2d) 745, 75 N. W. (2d) 801, citing Thelen v. Machotka (1954), 268 Wis. 1, 66 N. W. (2d) 684.
(3) Order for new trial discretionary. The jury found plaintiff negligent in failing to keep a proper lookout and that this negligence was a cause of the accident. The evidence presented a jury issue on these questions. The jury also found him negligent in failing to give proper warning; and that this negligence was a cause. Perhaps the jury failed to make a distinction between failure to warn because of lack of lookout and failure to warn after he saw the tractor-trailer unit. It appears that when he first saw the unit both vehicles were so close to the point of collision that failure to warn then could not have been a cause. In any event, the jury found that the excessive speed of Redlin and the lack of lookout and warning by plaintiff contributed equally to the accident. Plaintiff was a passenger. A left turn is essentially a momentary operation. It is not surprising that the trial court felt that the jury's comparison was against the great weight and clear preponderance of the evidence. The trial court has discretionary power to order a new trial in the interest of justice when a jury's comparison of negligence *597 is against the great weight of the evidence. Bolssen v. Heenan, ante, p. 110, 88 N. W. (2d) 32; Guptill v. Roemer (1955), 269 Wis. 12, 19, 68 N. W. (2d) 579.
(4) Damages not excessive. A trial judge who has seen and heard the witnesses and observed the injured party has a better opportunity than we to determine whether damages are excessive. Koepp v. National Enameling & Stamping Co. (1912), 151 Wis. 302, 322, 139 N. W. 179. It is primarily the trial judge who should determine whether a new trial should be limited to issues other than damages. "He is in much better position than are we to ascertain whether it would be unjust to require a party to relitigate the question of damages." Leonard v. Employers Mut. Liability Ins. Co. (1953), 265 Wis. 464, 470, 62 N. W. (2d) 10. We have in mind the fact that proving damages entails some considerable expense where doctors are to be witnesses, and unless the record discloses a substantial reason for reversing the trial court's determination that the damage question should not be retried, we should not do so.
While Korpela was able to return to his home by taxi after the accident, he suffered severe pain and stayed in his room until he saw his doctor December 27th. X rays then showed a fracture of the left transverse process of the third lumbar vertebra. He was in the hospital from December 31st to January 16th, treated with hot packs and sedatives to relieve pain. He tried to work on February 17th, suffered pain, and an X ray then showed the process had not healed. He had been fitted with a brace while in the hospital and wore it until he returned to work on March 30th. He testified he could not work before March 30th. He had been earning $97.20 per week and thus could have earned $1,263.60 in thirteen weeks. The jury allowed $1,200 for loss of earnings.
Korpela's work has generally been on construction jobs. He was a carpenter helper at the time of the accident and *598 worked as such after March 30, 1956, and until the time of trial. He testified that he has slight pain at all times with some stiffness; some days are good and some are not; at the end of a full day his back gets tired. He can't bend to the right as much as to the left.
An orthopedic surgeon had been called in while Korpela was in the hospital and treated him thereafter. He testified that the transverse process is a place for attachment of the muscle structure that supports the spinal column. A fracture of the transverse process is primarily a muscle injury and the muscle spasm is so great that it pulls the ridge of bone over and there is a lot of pain. It leaves scar tissue that causes restricted motion, stiffness, and soreness. Shortly before trial, May 2, 1957, he examined Korpela and found a moderate amount of muscle spasm in the right lumbar region, found him able to bend normally to the left and backward, but only 50 per cent to the right. It was the doctor's opinion that Korpela will continue to have discomfort and some restriction of motion; that he will be able to do heavy work at times, but will be unable to do heavy work continuously; that Korpela has seven or eight per cent permanent disability. Korpela had never had back trouble before the collision and was forty-three years of age at the time of trial, with a life expectancy of approximately twenty-six years. The jury allowed $12,500 for personal injuries in addition to the $1,200 for loss of earnings. In our opinion, the award is sustained by the evidence and the record discloses no reason to overrule the trial court's determination that the damage award was fair and need not be retried.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585332/ | 508 So.2d 289 (1987)
Cornelius RICHARDSON
v.
STATE.
1 Div. 271.
Court of Criminal Appeals of Alabama.
January 13, 1987.
Rehearing Denied February 10, 1987.
Arthur J. Madden III, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
TYSON, Judge.
Cornelius Richardson was indicted for capital murder in violation of § 13A-5-31(a)(2), Code of Alabama 1975 (repealed by Acts 1981, No. 81-178, § 20 effective July 1, 1981). The jury found the appellant "guilty of the capital offense as charged in the indictment." He was sentenced to "life in prison without the possibility of parole."
Since the appellant did not raise the issue of the sufficiency of the evidence, the facts of this case will be only briefly stated.
On April 21, 1981 a security guard was shot and killed outside Van's Photo in Mobile, Alabama. Later, on December 13, 1984, this appellant was indicted for this offense. He was tried for this offense on December 9-11, 1985.
The identity of the assailant was the central issue at trial. The bulk of the State's case against the appellant consisted of testimony from several of his acquaintances, three of whom were convicted felons. The one eye-witness to the homicide was unable to identify this appellant as the assailant.
*290 Mrs. Rosemary Leatherwood Chambers testified that she had used drugs with the appellant during 1981 and that, prior to the shooting, she had told him that the Van's Photo security guard carried a lot of money in his wallet.
Ms. Wanda Jackson testified that she also had told the appellant, prior to the shooting, that the security guard at Van's Photo carried a lot of money in his wallet. She also said that sometime following the shooting the appellant told her that he had a gun which a friend of his had used to kill someone and that he needed to get rid of same.
Percy Dennis, a convicted felon, testified that, following the shooting, the appellant told him that he had shot and stabbed a security guard at Van's Photo.
Douglas Parker, Jr. testified that he and the appellant had planned to rob the security guard and that, after the shooting, the appellant told him that he had shot the security guard twice and taken his gun.
Jimmy Lee Clemmons testified that he had given the appellant some drugs "on credit" on the night of the homicide and, when he saw the appellant later, the appellant had two pistols and had asked him if "that man" had died after Clemmons told him that he had been questioned by the police about the shooting.
I
The only issue raised on appeal by the appellant concerns the trial judge's handling of the jury deliberation process. The appellant contends that the trial judge erred to reversal in polling the deadlocked jury as to their numerical division.
He also asserts as erroneous the judge's actions in determining through a show of hands whether the jury regarded being able to review the testimony of a particular witness as essential to achieving a verdict and allowing the jury to take the transcripts of the testimony of three government witnesses with them into the jury room.
The pertinent portion of the record reveals the following:
"(The jurors began their deliberations at 10:55 a.m. and returned to the courtroom with questions at 11:22 a.m.)
"JUROR: Do I presume and I understand you to say that if we requested that a replay of a certain individual's testimony while he was under oath during the trial could not be replayed?
"THE COURT: It's very difficult. The law doesn't like me to do that, or the Supreme Court doesn't like me to do that for the reason that it says that it gives undue emphasis to the weight of a particular witness. However, under certain circumstances I might do that. It's not easy to transcribe the testimony of a witness. I mean, it takes her I forget how many hours doing it out of court for every hour in court of testimony that it takes. But which particular witness were you talking about.
"JUROR: The one known as Big Bobby.
"THE COURT: Big Bobby. I don't know how long he testified.
"MR. COPELAND: I'm sorry, Judge?
"THE COURT: I'm trying to figure out how long he was on the witness stand.
"MR. COPELAND: He wasn't one of the longer witnesses.
"THE COURT: Is there something in particular in that testimony that you were looking for? I mean, I might be able to find a particular portion of it. We might be able to get the whole thing. I don't know how long it was.
"JUROR: He had a conversation with the defendant that we were interested in. Each one of them testified to a conversation and it's kind of running together as to which one said what.
"THE COURT: We might get inwell, let me think about that. Go ahead and try to reach a verdict based on the evidence you have and let me give that some thought.
"(The jurors leave the courtroom and resume their deliberations at 11:31 a.m.)
* * * * * *
"(The jurors return to the courtroom at 12:10 p.m.)
*291 "Ladies and Gentlemen, you now have the case for your deliberation. I just want to say this to you before you go to lunch. Although you have it for your deliberations you're still not at liberty to discuss it among yourselves or with anyone else until all twelve of you are back in the juryroom. So please don't discuss it over lunch. And when you get back from lunch you may then resume your deliberations.
"(A luncheon recess was had, after which the jurors resumed their deliberations and returned to the courtroom at 4:05 p.m.)
"THE COURT: Ladies and Gentlemen, do I understand the jury has a question?
"JUROR: I'm sorry?
"THE COURT: Do you have a question?
"JUROR: Your Honor, we've been unable to reach a unanimous decision for or against the defendant.
"THE COURT: Is there any particular point of law that I might help you with which might assist you in reaching a verdict?
"JUROR: I believe the biggest problem that we had was in determining the credibility of the witnesses in order to accept their testimony, Your Honor.
"THE COURT: All right. I don't want to know which way you're hung, but would you tell me your numerical division of numbers?
"JUROR: We're at seven and five as it stands.
"THE COURT: Is there any juror who has a question that I might be able to answer which might assist you in arriving at a verdict? (No response.) You don't feel that further deliberation would be helpful to you?
"JUROR: I think we've reached a decision that, no, sir, it's an individual thing that this person has got to satisfy himself as to the credibility of the evidence presented by some of the witnesses.
"THE COURT: The question that you asked me for earlier, is the answer to that question important to your decision?
"JUROR: It could lend to it, Your Honor; yes, sir. This area is one of the areas as to the credibility of that particular person's testimony as to whether we accept it or to not accept it.
"THE COURT: All right, Are you referring to the facial hair or the other?
"JUROR: Oh, no, sir, the one about giving the transcript of the testimony.
"THE COURT: You mean that you believe that if you had the transcript of the testimony of Big Bobby or whatever his name was that you might be able to reach a verdict?
"JUROR: Yes, sir. As to whether we accept the credibility of his testimony.
"THE COURT: All right. Let me think about that a moment. Ask that you step back to the juryroom.
"(Jury out)
* * * * * *
"(The jurors return to the courtroom at this point.)
"THE COURT: Ladies and Gentlemen, the best information that I can get is that it will take us about three hours to transcribe this testimony. If you believe that it's important to your decision then I'm going to do that and I'm going to submit it to you in the morning.
"How many of you think with that testimony you can arrive at a verdict?
"JUROR: It's a possibility.
"THE COURT: Let me put it this way. How many of you think you cannot reach a verdict with that testimony?
"I don't want you to place any undue emphasis on this testimony in the sense that the Supreme Court tells us that if I submit this to you that there is a danger that you might overly emphasize the testimony of the other witnesses. And I want you to think about it, and I want you to think about it tonight and I want you to think about it in terms of whether or not you need any more testimony transcribed and report that fact to me in the morning when you get back.
"You have the case for your deliberation. You're still not at liberty to discuss it until you return in the morning. Ask that you step back to the juryroom and we'll bring you back down here in the morning and you may resume your deliberations *292 and hopefully we'll have the testimony by that time.
"MR. COPELAND: Judge, before you release them may we approach the bench?
"THE COURT: Sure.
"(An off the record discussion was had at the bench.)
"THE COURT: Thank you very much, Ladies and Gentlemen. Please retire to the juryroom.
"(Jury out.)
* * * * * *
"(End of proceedings on the 11th day of December, 1985.)
"(On the 12th day of December, 1985, Court was called to order and the following proceedings were had with the jury present:)
"THE COURT: Ladies and gentlemen, yesterday I had a message that you wanted the testimony of two additional witnesses and my Reporter has transcribed their testimonyand they are who? Who are the witnesses?
"REPORTER: Demming, Dennis and Leatherwood.
"THE COURT: And are those the two additions that you wanted?
"I just want to caution you once again. I'm going to give you this testimony but I want you to still consider all of the evidence in the case and not give undue weight to this testimony simply because it's been transcribed. I understand there may be a few points you want to consider, so I'm going to deliver it to you right now and you may consider it. You may resume your deliberations.
"Any other questions? (No response.) Okay. Thank you very much.
"MR. CLARK: Judge, before youmay we approach the bench?
"THE COURT: Sure.
"(An off the record discussion was had at the bench.)
"THE COURT: Let me say this to you, Ladies and Gentlemen, the attorneys want to tell you some more about the law before you resume your deliberations and I'm going to do that.
"The State of Alabama has the burden of proving the guilt of the defendant beyond a reasonable doubt. The defendant has no burden whatsoever. The burden never shifts to him to prove his innocence.
"Some of the witnesses in the case, there was evidence that they had been convicted of felony crimes. The law says that that evidence is admissible because you may consider that as a factor in determining what weight you will give their testimony and whether or not they are credible.
"In weighing a witness' testimony you should consider his bias, his prejudice or his motivation for gain in giving such testimony, including any promises of leniency or favorable treatment made by police or prosecutors.
"I charge you, members of the jury, that you should consider as a factor in weighing the credibility of a witness whether he had previously testified or given statements inconsistent with his trial testimony.
"Okay. You may resume your deliberations.
* * * * * *
"(The transcripts sent to the juryroom were marked as Court's Exhibits.)"
(The jurors returned to the courtroom at 11:21 a.m. with a verdict of guilty.) (R. 431-441).
A
The appellant insists that we follow the United States Supreme Court's lead in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), and hold that the trial court's inquiry into the numerical division of the deliberating jury was, per se, reversible error. This we cannot and need not do.
In Ex Parte Showers, 407 So.2d 169 (Ala. 1981), the Alabama Supreme Court specifically rejected the strict application of Brasfield in the courts of Alabama. The court held that the rule announced in Brasfield, prohibiting inquiry into the numerical division *293 of the jury was a rule of procedure and, therefore, was not binding on Alabama courts. The Showers court stated,
"At least one court has specifically addressed this question. In Sharplin v. State, 330 So.2d 591 (Miss.1976), there was an inquiry by the trial judge into the numerical division of the jury. The defendant in Sharplin, as in the present case, cited Brasfield for the proposition that the request was per se reversible error. The court stated that, `We conclude that Brasfield was not grounded in a specific constitutional provision that has subsequently been applied to the states through the Fourteenth Amendment, but was announced as a rule of procedure to be followed in the federal courts.' Sharplin v. State, 330 So.2d 596. We agree."
Showers, supra, at 171. See Ellis v. Reed, 596 F.2d 1195 (4th Cir.1978) (rule in Brasfield "is one of judicial administration based on the supervisory powers of the Supreme Court over the federal court system" and "is not applicable per se to the state courts.")
The Showers court implicitly adopted a "totality of the circumstances" approach in determining the propriety of such an inquiry by the trial judge. We do so explicitly here.
This court stated in Showers,
"While the trial judge is vested with large discretion in the conduct of the trial and may admonish the jury as to the desirability and importance in agreeing on a verdict, he may also urge jurors to make every effort consistent with their consciences to reach such verdict. He may request jurors to lay aside mere pride of judgment and listen to what the other jurors believe from the evidence. The judge may ask the jurors to reason together in a spirit of fairness and candor and talk over their differences and, if possible, harmonize them. However, it is not proper to give an instruction censuring jurors for not agreeing with the majority. Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913); Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)."
Showers v. State, 407 So.2d 167, 169 (Ala. Crim.App.), rev'd on other grounds, 407 So.2d 169 (Ala.1981).
In its opinion the Alabama Supreme court stated,
"It is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used. Phoenix Insurance Co. v. Moog, 81 Ala. 335, 1 So. 108 (1886); Strickland v. State, 348 So.2d 1105 (Ala.Crim.App.), cert. denied, 348 So.2d 1113 (Ala.1977); Jones v. State, 56 Ala.App. 444, 322 So.2d 735, cert. denied, 295 Ala. 408, 322 So.2d 741 (Ala.1975)."
Showers, supra, at 171 (emphasis added).
A totality of the circumstances or case-by-case approach thus best serves the underlying purpose here: to protect the jury deliberation process from undue influence or coercion.
When viewed as a whole, the circumstances surrounding the judge's inquiry into the numerical division of the deadlocked jury in this case did not amount to coercion.
In Showers, the lone hold-out on the 11-1 jury was essentially admonished to vote with the majority. The court stated at one point, "And, I simply ask the person who is the one that does not agree with the others to remember, that those 11 others on the jury are fair, and reasonable people, and if they were not so, they wouldn't be on the jury." Showers, supra p. 168.
The conduct in that case would have been error to reversal without an inquiry as to numerical division. In Gidley v. State, 19 Ala.App. 113, 95 So. 330 (1923), cited by the appellant, an inquiry as to whether or not a verdict could be reached was made. A juror responded, "No, sir, we haven't been able so far. Judge, we stand 11 to 1." Gidley, supra, at 114, 95 So. 330. With this knowledge the judge proceeded to give a modified "Allen charge" which *294 contained patently coercive language. At one point the judge stated, "The business of the courts cannot be disposed of by mistrials." Gidley, supra at 114, 95 So. 330.
In the case at bar, the court gave no "Allen charge" and did not admonish the jury to reach a verdict. The judge's inquiry in this case was made for the purpose of determining the practicability of allowing the jury, which had requested a review of some of the testimony, more time for deliberation. We find no reversible error here. See also, Orr v. State, 269 Ala. 176, 111 So.2d 639 (Ala.1959) (holding that several coercive statements made in combination required reversal); Ex Parte Morris, 465 So.2d 1180, 1183-84 (Ala.1985) (judge's "knowledge of the serious misgivings of one juror in acquiescing in the guilty verdict, coupled with the judge's express determination to get a unanimous verdict from these twelve jurors, made his final words of `encouragement' coercive."), Channell v. State, 477 So.2d 522 (Ala.Crim. App.1985) (where judge sent deadlocked jury back to deliberate on two occasions but did not indicate to the jury that he "expected" a verdict, admonish the hold-out juror to agree with the majority or inquire about or mention the 11-1 numerical division, reversal was not required).
B
The appellant also contends that the trial judge's actions in determining, through a show of hands, whether the jury regarded the testimony of Percy Dennis as essential to achieving a verdict constituted grounds for a mistrial. He argues that this type of inquiry is much more coercive than that condemned in Gidley, supra. We do not agree.
In Wells v. State, 378 So.2d 747 (Ala. Crim.App.), writ denied, 378 So.2d 756 (Ala. 1979), this court was presented with a similar situation. There, the trial judge individually polled the jurors to determine how many believed that a verdict was reachable. Holding the judge's actions to be permissible, we said,
"... All the trial judge did was to ask how many jurors thought a verdict could be reached and how many felt that one could not be reached. The answer given in no way revealed how many people in either group stood for or against a conviction.... In addition, there is no indication that any attempt was made to urge an agreement upon the jury or to coerce or influence them in any manner...."
....
"The trial court is under a duty not to discharge a jury and declare a mistrial if there is any reasonable probability that they can agree. Parham v. State, 47 Ala.App. 76, 250 So.2d 613 (1971). The trial court by being present is in a much better position than an appellate court to determine the jury's ability to decide a defendant's fate fairly and justly. Franks v. State, 45 Ala.App. 88, 224 So.2d 924 (1968)."
Wells, supra at 753.
Although there was no mention of the specific point on which the jury disagreed in Wells, we do not consider this distinction fatal. As we note below, the revelation of the point of disagreement among the jurors and the fact that they were allowed to reconsider previous testimony did not unfairly influence the jury's deliberations.
C
The appellant contends, specifically, that the trial judge erred in allowing the transcripts of three of the witnesses' testimony to be taken into the jury during deliberations. We disagree.
It is true, as the appellant notes, that § 12-16-14, Code of Alabama 1975 provides that only exhibits which have been admitted into evidence and depositions which have been read to the jury may be taken into the jury room. We disagree, however, with the appellant's contention that the actual, physical transcripts of testimony given in court are not "evidence". Although the documents themselves had not been (and as a practical matter, could not have been) formally introduced during the trial, the fact remains that the testimony *295 itself had. The formal introduction of the transcripts was unnecessary for the purpose of allowing it to go to the jury. See Jolly v. State, 405 So.2d 76 (Ala.Crim. App.1981).
Furthermore, the fact that the testimony was allowed in the jury room in written form did not jeopardize the jury's consideration of the other evidence presented in the case. The trial judge repeatedly admonished the jury that they should not place undue emphasis on the testimony contained in the transcripts. In addition, the testimony being reviewed by the jury was not that of one particular person. The jury was allowed to review and compare the testimony of three of the witnesses.
We find no abuse of discretion here. See Fitchard v. State, 424 So.2d 674 (Ala.Crim. App.1982); Hammes v. State, 417 So.2d 594 (Ala.Crim.App.1982).
For the above-stated reasons, this cause is due to be and is, hereby, affirmed.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2398631/ | 365 S.W.2d 21 (1963)
Madge W. CROCKER, Appellant,
v.
CLARK-McDAVITT PROPERTIES, INC., Appellee.
No. 14074.
Court of Civil Appeals of Texas, San Antonio.
January 16, 1963.
Rehearing Denied February 20, 1963.
*22 Vaughan & Vaughan, San Antonio, for appellant.
Groce & Hebdon, Charles L. Smith, San Antonio, for appellee.
BARROW, Justice.
This is an appeal from a summary judgment granted to defendant, Clark-McDavitt Properties, Inc. Plaintiff, Madge W. Crocker, filed suit for personal injuries sustained by her in a fall at a skating rink. The trial court granted the defendant's motion for summary judgment and plaintiff has perfected her appeal from this take-nothing judgment. The motion was granted upon plaintiff's deposition and affidavit, an affidavit of the vice-president of defendant corporation, an affidavit of the architect who designed the building, and photographs of the area involved.
There is a question as to the status in which the defendant, Clark-McDavitt Properties, Inc., is sued. The petition alleged that it was the owner and operator of a roller skating rink. Defendant alleged, however, that it had leased the premises to Northporte-Rolercade, Inc., a Texas corporation, and that at the time of the accident plaintiff was an invitee of the lessee. Plaintiff filed a supplemental petition and alleged that Northporte-Rolercade, Inc., was a subsidiary corporation of defendant and was operating the skating rink as manager for defendant corporation. In its motion for summary judgment, defendant filed an affidavit by its vice-president to support its allegation of non-control of the premises, and attached a copy of the lease contract to the motion for summary judgment. This contract places sole control of the operation in the lessee, Northporte-Rolercade, Inc. The plaintiff did not file a counter-affidavit or other evidence, or justify her inability to do so. She, therefore, did not raise a genuine issue of fact on this point. Allen v. Western Alliance Insurance Co., Tex., 349 S.W.2d 590; McDonald, Texas Civil Practice, Vol. 4, § 17.26.3.
The status of defendant is of little importance in view of the theory of liability upon which this suit was brought by plaintiff. She does not allege that the fall was caused by a foreign substance on the floor, defective construction, or improper supervision *23 of the premises. She predicates liability upon improper design of the premises for the purpose of operating a skating rink. The skating area was on a wooden floor raised about two inches above the concrete floor, enclosed with a solid wall about three feet high. There are two openings in the wall through which skaters enter and leave the skating area. At such openings the skaters go up or down an incline about five inches long, which is covered with a metal strip. The openings are located so that the walls may be held when a skater enters or leaves the skating area. All of these conditions were admittedly known by plaintiff prior to her fall. At the time of the fall she was leaving the skating area through one of the openings; she was holding to the wall with her right hand, but slipped and fell on the metal strip. Plaintiff alleged that the building was not designed as a skating rink, but was converted by adding the wooden floor and that this created a hazard. Further, that the design of the premises required skaters to go on and off the area.
The owner of leased premises is liable to the public or to third persons for injuries resulting from a defective structure on the premises, when the defect existed at the time the lease was made. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; Perez v. Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620. Here the premises were leased for the specific purpose of operating a skating rink.
The uncontroverted affidavit shows that the premises were constructed according to plans and specifications prepared by a competent and qualified architect, for the specific purpose of a skating rink. The wooden floor was raised to keep dirt off the skating area. The openings in the wall were designed so as to provide a handrail for skaters entering and leaving the skating area. The five-inch metal incline was designed to eliminate injury by a fall on the sharp corner of the skating floor. The fault alleged was in the plan or design of construction. There was no allegation of a nuisance per se. Further, the design complained of was known to plaintiff prior to the injury.
This case comes within the rule set forth in Hamblen v. Mohr, Tex.Civ. App., 171 S.W.2d 168, writ ref., want of merit. It was there held that, in the absence of a nuisance per se, the duty of the owner of a building in providing for its safe construction is satisfied by the use of ordinary care to engage a competent architect and builder. See, also, Renfro Drug Co. v. Lewis, supra; Acme Laundry Co. v. Ford, Tex.Civ.App., 284 S.W.2d 745, writ ref., n. r. e.; San Antonio Hermann Sons Home Ass'n. v. Harvey, Tex.Civ.App., 256 S.W.2d 906, writ ref., n. r. e.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2398635/ | 365 S.W.2d 354 (1963)
James Wesley ISENHOWER et al., Petitioners,
v.
G. D. BELL, Respondent.
No. A-9068.
Supreme Court of Texas.
February 20, 1963.
Rehearing Denied March 20, 1963.
*356 Runge, Marschall & Hall, San Angelo, for petitioners.
Davee & Davee, Brady, for respondent.
GREENHILL, Justice.
The judgment heretofore entered is set aside; and the opinion heretofore rendered is withdrawn, and the following is substituted therefor.
G. D. Bell and W. L. Jackson, as partners, owned the Bell Feed Store in Brady, Texas. Bell desired to sell, and he ultimately entered into a written agreement to convey his interest to W. L. Jackson and J. W. Isenhower. The parties soon fell into disagreement, among other things, as to how much Bell and the store owed and who was obligated to pay the outstanding debts. This suit was brought by Jackson and Isenhower against Bell for damages for fraud and for rescission. In particular, Jackson and Isenhower alleged that Bell had wrongfully represented that the debts of the store did not exceed $8,500. After a trial by jury, judgment was entered against Bell, and for Jackson and Isenhower for damages. That judgment was reversed and the cause was remanded for a new trial by the Austin Court of Civil Appeals, 356 S.W.2d 485. Jackson and Isenhower applied to this Court for writ of error. Bell filed no application. The case has been handled on appeal in an unorthodox fashion, and our disposition of the case is limited by the points of error which have been preserved and presented.
The only point of error which Jackson and Isenhower have in this Court is that "The Court of Civil Appeals erred in reversing the judgment of the district court * * * because such action is not founded on fundamental error or on any assigned error."
We have examined the points of error of Bell in the Court of Civil Appeals and agree that the Court of Civil Appeals, in its opinion, did not reverse the case on any assigned error. It did, however, reverse the case and remand it for a new trial. Under those circumstances, this Court will review the points of error in Bell's brief in the Court of Civil Appeals to see if there was error assigned which would support the judgment of the Court of Civil Appeals. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383 (1952); Calvert, "Supreme Court Review," 21 Texas Bar Journal 75 at 112.
*357 As stated, Bell did not bring an application for writ of error to this Court complaining of the failure of the Court of Civil Appeals to sustain his points which would require a reversal and rendition of the judgment.
Bell had six points in the Court of Civil Appeals. His points two and three, assuming them to be properly preserved and presented, did present points which, if sustained, would require a remand of the cause. They will be discussed below. Bell's points one, four, five, and six, if sustained, would have required a rendition of the judgment. They deal with the failure to sustain special exceptions, which would result in rendition of the case if sustained, failure to grant an instructed verdict, failure to grant Bell's motion for judgment notwithstanding the verdict of the jury, and similar matters. We do not regard these points as being before us.
Bell's third point deals with special issues requested by Bell and refused by the trial court. This point has 10 parts or subpoints, lettered (a) through (j), complaining of the trial court's failure to submit his requested issues 1 through 10. The issues which were refused are not set out. The first subpoint reads: "The trial court erred in overruling and not submitting to the jury appellant's special requested charge No. 1, same being amply raised by the evidence." The other subpoints are the same except the number of the requested special issue is changed.
Rule 418, Texas Rules of Civil Procedure, deals with the requirements of briefs in the Court of Civil Appeals. Section (b) of Rule 418, regarding points of error, says, "Such points will be sufficient if they direct the attention of the court to the error relied upon * * *." Section (c), which deals mainly with argument, provides in part, "If complaint is made of any charge given or refused, such charge shall be set out in full." This was not done either in the point of error or in the argument.
The substance of the requested special issue No. 6 is set out in the argument under that point; and we shall here assume that the point is therefore preserved. Assuming that the point is preserved, it does not present error. Subpoint (f) of Point 3 complains of the error of the trial court in refusing to submit Bell's special requested issue No. 6. Examining the transcript, we find the requested issue reads, "Do you find * * * that the plaintiff Isenhower knew or should have known by use of reasonable diligence, the amount of the indebtedness owed by Bell Feed Store at the time of purchase."
As pertinent here, this was a suit for fraud. It was alleged, and the jury found, that Bell represented that the debts of the store did not exceed $8,500; that the representation was of a material fact; that Isenhower relied thereon; and that it was untrue. Where one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based upon a plea that the party defrauded might have discovered the truth by the exercise of proper care. Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888); Moore v. Beakley (Tex.Com.App.1919), 215 S.W.2d 957. An affirmative answer to the requested special issue based upon what Isenhower should have known would not, therefore, have constituted a defense to the alleged fraud. The trial court did not err in declining to submit the requested issue.
Bell's requested issue No. 7 would have inquired whether Isenhower was negligent in not ascertaining the amount of indebtedness owed by the feed store. The trial court properly refused to submit this issue for the same reason.
Bell's requested issue No. 1 would have inquired whether Bell guaranteed that the indebtedness of the store did not exceed $8,500. Special issue No. 3 which was given by the court inquired whether Bell represented to Isenhower that the debts *358 owed by the store did not exceed $8,500. The issue given, therefore, submitted the substance of Bell's requested issue No. 1 and was no more onerous on him. The court did not err in refusing to submit the issue.
Bell's requested issues 2 and 3 (inquiring whether such representation induced Bell to enter into the agreement) were conditioned upon an affirmative answer to his requested issue No. 1. The court therefore did not err in refusing to submit those issues.
Subpoint (d) of Bell's third point of error says that the trial court erred in refusing to submit his requested issue No. 4. The issue is not set out. The entire argument under the point is:
"(d) S.F. P. 132, P. 139, P. 141, and P. 143."
One of the main purposes of Rule 418 is to require counsel to put before the Court of Civil Appeals in the brief at least the substance of the point relied upon for reversal and to relieve the appellate court from having to piece together a point for the appellant from an examination of the transcript and the statement of facts. A bare reference to a requested issue No. 4 and a reference to four pages in the statement of facts, without stating the substance of any of the material referred to, is not enough. The point was, therefore, not preserved. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The same is true of Bell's requested special issues 5, 8, 9 and 10.[1]
Bell's second point of error dealt with the admissibility of evidence. On October 2, 1958, Bell and Isenhower entered into a preliminary agreement whereby Isenhower would purchase Bell's interest in the store for $12,000 and the assumption of accounts and notes owed by Bell. The agreement, which is set out in full in 356 S.W.2d at pages 486 and 487, states that the parties will execute, by October 15, 1958, a detailed contract consummating the sale; and that if no such contract is executed by that time, the preliminary contract would be of no effect. The final paragraph reads, "It is agreed that the debts of Bell Feed Store including open accounts and notes, will not exceed the amount of $8,500.00."
On October 4, 1958, a contract was entered into whereby Bell sold his interest to Isenhower and Jackson. This instrument, which is set out in full in 356 S.W.2d at pp. 487 and 488, says that "[w]hereas on October 2, 1958, the said G. D. Bell and James Wesley Isenhower entered into a preliminary sales agreement * * *; now, therefore to terminate said partnership and consummate said sale, the parties agree as follows * * *." Then follow the terms of the sale. This contract does not have an *359 agreement, contained in the preliminary contract of October 2, that the debts will not exceed $8,500.
Upon the trial of the case, Bell's counsel objected to the introduction of the agreement of October 2 mainly on the ground that it had been merged into the final agreement of October 4 and because of the parol evidence rule.
When the issue of fraud is raised, competent evidence that has a reasonable bearing on the issue is admissible and may be considered by the jury. All the facts and circumstances leading up to and connected with the transaction are, ordinarily, admissible. 20 Am.Jur. 320, Evidence § 345.[2]
It is our opinion that the trial court correctly admitted the agreement in evidence as part of the circumstances to prove Isenhower's cause of action for fraud. He was attempting to prove that Bell had represented to him that the debts would not exceed $8,500, and that he was induced to enter into the agreement thereby. The fact that such a representation had been put in writing in the agreement of October 2 would strengthen Isenhower's case in this regard, and would be an admissible circumstance for the jury to consider in passing upon the fraud issue. This being so, it is unnecessary for us to consider Isenhower's arguments that the two instruments, executed in close proximity to each other, were all part of the same transaction and should be considered together.
The final portion of Bell's second point of error complains of the admission in evidence of testimony from Isenhower as to the amount owed by the feed store to Ralston-Purina Company, and what the status of that account was. The argument under the point does not refer the court to the place in the two-volume statement of facts where such testimony may be found or the objections thereto made on the trial. Be that as it may, the amount of the debts and to whom they were owed were a legitimate inquiry in the suit; and the trial court did not err in admitting the testimony.
Finally, there is the question as to whether there was fundamental error requiring a reversal of the case. We find none. The suit was properly brought in a court having jurisdiction of the subject matter. Assuming, without deciding, that lack of indispensable parties is fundamental error, the creditors mentioned in the Court of Civil Appeals are not such as to prevent the court from deciding the case between the people who were parties to the litigation. The Court of Civil Appeals concedes this by saying, "Our statement that all creditors of the Feed Store should be made parties was suggestive only, and was made in order to prevent a multiplicity of suits." 356 S.W.2d at 489. Nor is there any error which directly and adversely affects the interest of the public generally. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; St. Paul Fire & Marine Insurance Co. v. Murphree, Tex., 357 S.W.2d 744 (1962).
Having examined the points of error of Bell in the Court of Civil Appeals upon which the judgment of reversal and remand could be sustained, and having found no such reversible error, our duty is to reverse the judgment of the Court of Civil Appeals, and to affirm the judgment of the trial court. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). It is so ordered.
The Respondent Bell is granted 15 days in which to file a motion for rehearing.
NOTES
[1] Subpoint (e) of point 3 is that the trial court erred in not submitting his special requested issue No. 5, same being amply raised by the evidence. The issue is not set out. The argument under the point is, "The pleadings and the evidence raised this issue of fact S.F. P. 37, P. 140. We believe the jury would have answered this special issue in favor of appellant."
Subpoint (h) of point 3 is that the trial court erred in not submitting his requested issue No. 8. It is not set out. The argument under the point is: "There was considerable evidence on the egg money, S.F. P. 165, P. 166, and P. 167, and the same was very much in dispute and raised by both the pleadings and the evidence. The jury was entitled to have this Special issue submitted by the Trial Court. We believe the jury would have answered favorable to the Appellant."
Subpoint (i) likewise says the court erred in failing to submit his requested issue No. 9. It is not set out. The argument under the point is: "We believe that Appellees assumed payment of this account as set out in Exhibit `B' and being the final sales contract dated Oct. 4, 1958 and acknowledged Oct. 20, 1958."
Subpoint (j) complains of the failure to submit his requested issue No. 10. It is not set out. The argument under the point is: "It is appellant's position that Appellee agreed to pay this amount as set out in the final sales contract dated Oct. 4, 1958 and acknowledged Oct. 20, 1958."
[2] The section of American Jurisprudence deals with other subjects than fraud, including duress and undue influence. Those matters are not before us, and the citation to the section is as to the question of fraud. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585069/ | 147 Mich. App. 297 (1985)
382 N.W.2d 726
PEOPLE
v.
MARTIN
Docket No. 80922.
Michigan Court of Appeals.
Decided November 19, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellant Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Kavanagh & Kavanagh (by Thomas G. Kavanagh, Jr.), for defendant.
Before: M.J. KELLY, P.J., and ALLEN and R.M. SHUSTER,[*] JJ.
PER CURIAM.
In this appeal by the people we are asked to decide whether the respected trial court *299 erred by declining the prosecution's motion for a one week continuance of arraignment in circuit court. We answer in the affirmative and reverse.
On October 3, 1983, defendant was charged with armed robbery. Preliminary examination was held in district court on November 2, November 22, and December 16, 1983, and the case was adjuourned for the filing of briefs on a motion brought by defendant. Defendant posted bond and was released from custody on the pending charge.
Decision on defendant's motion was made on July 10, 1984, and defendant was bound over as charged to circuit court. Arraignment in circuit court was set for July 26, 1984. In June, 1984, defendant, who had been out on bond, was arrested in Macomb County. On the date set for arraignment, all parties except defendant were present. While the Oakland County Sheriff's Department was aware of defendant's arrest and that a writ had been issued for defendant's custody in Macomb County, those facts had not been communicated to the prosecution. The assistant prosecutor requested a one week adjournment so that defendant could be returned by habeas corpus to Oakland. Defense counsel objected and asked dismissal of the case. The trial court responded simply: "My reaction is, case dismissed. So ordered."
The prosecution promptly moved to set aside the order of dismissal. Hearing was held on the motion at which time defense counsel argued that statutes and case law required "arraignment without unnecessary delay". On August 29, 1984, the trial judge denied the motion, stating:
"Well, the Court is of the opinion that in days gone by the reason for the case law and the statute are that they used to put a respondent on the merry-go-round so his lawyer couldn't talk to him. Now, I guess it's so a *300 prosecutor can't talk to him. But it seems to me that the State for purposes of a criminal case are (sic) one person and the State has an obligation to produce a body at the time and have a prompt arraignment. There was no prompt arraignment.
"The Court is of the opinion that the cause should remain dismissed."
From an order dismissing the cause "for the failure of the People to arraign defendant in a timely fashion", plaintiff appeals an of right.
Board discretion is given trial judges in ruling upon motions for continuances. People v Taylor, 110 Mich. App. 823, 832; 314 NW2d 498 (1981). A trial judge's decision to deny a continuance will not be overturned absent a clear abuse of discretion. People v Drossart, 99 Mich. App. 66, 83; 297 NW2d 863 (1980). Older cases adopted the "abuse of discretion" test presecribed for civil cases in Spalding v Spalding, 355 Mich. 382, 384-385; 94 NW2d 810 (1959).[1] The Spalding standard has been modified for criminal proceedings. People v Charles O Williams, 386 Mich. 565, 575; 194 NW2d 337 (1972); People v Merritt, 396 Mich. 67, 80-81; 238 NW2d 31 (1976). Those cases employed a weighing of competing interests involved standard.[2] As was stated in Merritt:
*301 "However, even under Williams, whether the choice was an appropriate one varies with the facts of each case, and must inevitably involve a weighing of the competing interests involved. Where the preclusion sanction is involved these issues become: do the possible risk of false testimony and the interruption in the orderly administration of justice justify this intrusion on defendant's right?
"Obviously, there may be occasions when defendant's delaying tactics or clear disregard for the rules leave the trial court no other choice. At times, however, perhaps because of late discovery of witnesses despite a diligent search or other circumstances beyond the control of defendant and his or her counsel, the interest of the state in fullest discovery and a fair trial for defendant might well outweigh any negative effects on the trial process." 396 Mich 82-83. (Emphasis supplied; footnote omitted.)
In the instant case, the trial judge gave no reasons for his ruling of July 26, 1984, dismissing the case. He simply stated: "My reaction is, case dismissed." Thus, even under the Spalding standard it appears that the ruling was more an exercise of pique than an exercise of discretion. Certainly it is difficult for an appellate court to decide if discretion has been properly exercised when no reasons have been assigned for the decision under review.
However, the trial judge's ruling on August 29, 1984, following the hearing on the prosecution's motion to set aside the order of dismissal, was an exercise of discretion. We do not agree with the court's concusion that "there was no prompt arraignment". The trial judge's order dismissing the case "for failure of the People to arraign defendant in a timely fashion" is not supported by precedent. While it is true that the state has an obligation to provide a prompt arraignment, it does not follow that a one week continuance would *302 make the arraignment untimely. Arraignment was acheduled for July 26, 1984, just ten days after defendant was bound over to circuit court. Furthermore, the prosecution had requested no prior delays. Infact, the record discloses that the arraignment was the first time at which the case had been called in circuit court.
Under the balancing standard in Williams, supra, and Merritt, supra, a one week delay would appear justified. There would be no prejudice to the defendant who already was incarcerated in the Macomb County jail. Balanced against that minor inconvenience is the major inconvenience to the state in reinstating the proceedings against the defendant. The preliminary examination had lasted three days, involved the presentation of eight witnesses, and required the briefing of complex issues and the preparation of a transcript. Because of these problems 269 days had elapsed before the defendant had been bound over to the circuit court on the charge. To force the prosecution to repeat this process would result in an obvious waste of judicial resources and inevitably would raise questions concerning defendant's right to a speedy trial. Indeed, reinstatement of the charges not only would be detrimental to the state, it would be more prejudicial and detrimental to defendant than a one week delay in arraignment.
Although the delay in arraignment was attributable to the prosecutor, bad faith was not involved. Administrative inadvertence on the part of the Oakland County Sheriff's Department which did not inform the prosecutor's office that defendant was confined in jail in Macomb County was the primary reason for the delay. Finally, we note that no statute prescribes a specific time by which arraignment on the information (as distinguished *303 from trial) must occur. Rather, statutes prescribing the right to a speedy trial govern the time frame. MCL 768.1; MSA 28.1024; US Const, Am VI. Under the stautes and constitution, dismissal for lack of a speedy trial is granted only if trial is unreasonably delayed. People v Collins, 388 Mich. 680, 687; 202 NW2d 769 (1972). Nothing in the instant case persuades us that a delay of one week was unreasonable. In fact, a much greater delay will result by dismissal and reinstatement of the charges.
Judgment reversed and the case remanded for reinstatement of the information with instructions to proceed to arraignment.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] "The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but pervisity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."
[2] In Bosak v Hutchinson, 422 Mich. 712, 737; 375 NW2d 333 (1985), the Supreme Court referred to the Spalding standard but arguably diluted its recent endorsement of that standard (see Mar's v Board of Medicine, 422 Mich. 688; 375 NW2d 321 [1985]) by quoting Justice LEVIN'S concurring opinion in People v Tally, 410 Mich. 378, 399; 301 NW2d 809 (1981). The Court thus continues to send out conflicting signals as to that much-criticized standard of appellate review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585078/ | 382 N.W.2d 668 (1986)
ARCON CONSTRUCTION CO., INC., A Minnesota Corporation with its principal place of business at Mora, Minnesota, Plaintiff and Appellant, (No. 15092)
v.
SOUTH DAKOTA CEMENT PLANT, et al., Defendants and Appellants. (No. 15091)
Nos. 15091, 15092.
Supreme Court of South Dakota.
Argued January 15, 1986.
Decided February 26, 1986.
*669 Ronald G. Schmidt, Schmidt, Schroyer, Colwill & Zinter, Pierre, for plaintiff and appellant.
Wayne F. Gilbert, Banks & Johnson, Rapid City, for defendants and appellants.
HERTZ, Acting Justice.
This is a discretionary appeal from an interlocutory order, denominated "omnibus order" entered by the trial court on July 19, 1985. Defendants (Cement Plant) appeal from certain portions of the order which is herein designated as Appeal # 15091. Plaintiffs (Arcon) also appeal from the same order, which is Appeal # 15092. Both of these appeals were consolidated for disposition.
This case has been on remand pursuant to our decision on May 2, 1984. See: Arcon Const. Co. v. S.D. Cement Plant, 349 N.W.2d 407 (S.D.1984). (For a more detailed factual statement, the reader is referred to our decision directing remand.) The issues raised will be addressed in the order argued before this court.
Appeal # 15092 (Arcon):
Our remand directed a retrial on the issue of damages only. There has been considerable activity since our remand, all were based on petitions for rehearing, including the trial court dated April 1, 1985. We have denied Arcon's request for reinstatement of the jury verdict, as well as the trial court's request.
Arcon, at the omnibus hearing, renewed its request for reinstatement of the verdict at the trial court level. The trial court denied this request and this appeal followed. Arcon also moved for permission to amend its complaint prior to the retrial. This motion to amend was also denied and is properly before us on appeal.
This court, under the present posture of this case, has no authority or power to reinstate the jury verdict as requested by Arcon. It has long been the rule in this court that when a case is finally decided and the remittitur has been returned to the lower court, which occurred here on June 7, 1984, this court cannot recall it except in case of fraud, mistake or inadvertence. Lesmeister v. Dewey County, et al., 75 S.D. 360, 65 N.W.2d 136 (1954); Bahlkow v. Preston, 62 S.D. 36, 251 N.W. 299 (1933). While Arcon claims there was a mistake of fact in our previous decision in this case, we do not perceive it as such, and therefore find no reason to deviate from our well-established rule. Furthermore, beyond the *670 remittitur rule just stated, we are of the opinion the trial court was without jurisdiction to entertain Arcon's motion to reinstate the verdict via the omnibus hearing. This may well have been the reason for the trial court's denial of Arcon's motion. It is clear that the omnibus hearing was scheduled for the purpose of clarifying the damage evidence, motion to amend complaint, and other retrial-related matters. The matter of reinstatement of the original verdict had previously been disposed of under appropriate rehearing petitions. The retrial of the damage issue as directed by our remand simply does not provide a jurisdictional basis for the renewal of this reinstatement motion. It is fundamental, of course, that if the trial court was without jurisdiction to entertain the motion, the appellate court is likewise without jurisdiction to hear it. Ward v. Viborg School Dist. No. 60-5, 319 N.W.2d 502 (S.D.1982); Darnall, et al. v. State, et al., 79 S.D. 59, 108 N.W.2d 201 (1961).
We, accordingly, affirm the trial court with respect to Arcon's reinstatement motion.
Arcon has, as early as August 9, 1984, motioned to amend its complaint concerning damages for increased costs of materials, for 1979 idle time, and for lost profits and overhead. This motion to so amend was again denied by the trial court at its omnibus hearing and as demonstrated by its "omnibus order" dated July 19, 1985.
We conclude that in order for the parties to conform with the directives of our previous decision, it is necessary that the trial court allow Arcon's amendment of its pleadings as requested. A reading of our discussion in this regard as found on page 415 of our decision provides ample support for Arcon's amendment. We, accordingly, reverse the trial court and direct the allowance of the amendment as embodied in Arcon's motion.
Appeal # 15091 (Cement Plant):
The Cement Plant appeals from the trial court's omnibus order in the following three particulars.
1. The order's denial of Cement Plant's motion to disqualify the trial judge.
2. The order's denial of Cement Plant's motion to preclude averaging.
3. The order's sua sponte reinstatement of all damages items not related to the Blue Book.
THE ORDER'S DENIAL OF CEMENT PLANT'S MOTION TO DISQUALIFY THE TRIAL JUDGE
As noted previously, this case has been remanded for "retrial on the damage question in accord with the guidelines set forth in the opinion." Arcon Const. Co., supra, at p. 417.
Following the remand on damages, Arcon petitioned for rehearing on May 11, 1984. On May 22, 1984, the Cement Plant also petitioned for rehearing. On June 7, 1984, we entered an order denying both petitions for rehearing. On this same date, a remittitur of the case was made to the trial court. On April 1, 1985, the trial court filed its own petition for rehearing. Arcon joined in this petition on April 18, 1985. We denied the trial court's petition for rehearing, as well as that of Arcon. On May 8, 1985, Arcon motioned for relief pursuant to SDCL 15-6-60(b). We denied this motion on May 16, 1985. The omnibus order was entered by the trial judge on July 19, 1985. On September 19, 1985, we granted the petition for allowance of appeal from this intermediate order.
The Cement Plant claims the trial court should have disqualified itself on the remand from the Supreme Court on the grounds that the court's impartiality might reasonably be questioned based on the court's statements at various post-remand hearings, and on the court's own petition for rehearing as previously mentioned.
It appears from the May 2, 1985 omnibus hearing, that the trial court's primary reasons for filing its own petition for rehearing were: (1) its conviction that this court did not adequately review the record of the original trial; and (2) its belief that the original verdict will be reinstated on retrial, and is in any event a reasonable verdict.
At the May 2, 1985 omnibus hearing, the trial court also announced its intention not *671 to have a retrial on those items of damages not related to the idle time claim.
Cement Plant urges the trial judge should be disqualified pursuant to Canon 3C of the Code of Judicial Conduct. This canon is found at the appendix to Chapter 16-2 and in relevant part states: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned ..."
Cement Plant specifically refers to the trial court's gratuitous filing of its petition for rehearing requesting the Supreme Court reinstate the original jury verdict. Cement Plant contends that the trial court, in filing its own petition for rehearing, adopted all of the arguments and positions of Arcon and thereby destroyed its impartiality on the retrial. As noted above, Arcon did in fact join in the trial court's petition for rehearing.
A review of the trial court's statements at the various hearings, as well as its petition for rehearing, indicates the trial court's petition was based on an honest conviction and belief that this court had not adequately reviewed the original trial record. Furthermore, the trial judge's statements throughout the hearing transcript on May 2, 1985, indicate that the trial judge intended to faithfully apply the standards and guidelines of this court as laid down in its appellate decision. Further, that he had not predetermined any issues, and that when these matters come back before him on retrial, both sides will have their theories properly presented to the jury. The trial judge further indicated that he would attempt to "do a better job" with the jury instructions on retrial. The trial judge further indicated that while he has some differences of opinion with this court concerning the interpretation of the Uniform Commercial Code, (UCC), that nevertheless:
The Supreme Court has decided that the ownership costs will be the measure and I am bound by that on the retrial.
It is further apparent from the May 2, 1985 transcript, that the trial judge believed he had dealt fairly with both parties at the initial trial and that he had acted professionally throughout the entire trial and pledged to continue to do so at the retrial. Absent a specific statute requiring it, the removal of a trial judge on retrial after a remand from this court should be exercised sparingly, and only where the remedy by an appeal would be wholly inadequate.
In this case, the trial judge has expressed opinion based on the evidence he heard at the first trial. However, this alone should not disqualify him from presiding at the retrial required by our remand on the damage issue. It must be remembered that the jury, as the ultimate fact finder, will make the decisive judgment as to the credibility of the witnesses and the weight of the evidence. Where the trial judge is sitting as the fact finder, the circumstances here would no doubt require a recusal of the trial judge. We, however, are not confronted with this dilemma in these proceedings.
This was a long and complicated trial. For a new judge to now be called in to hear the retrial on damages, and for him to achieve the necessary familiarity with the case would require wasteful delay and duplicated effort. Considering the trial court's pledge to follow the law and the dictates of our decision on remand, as well as additional directives set out in this opinion, we conclude Cement Plant will be fairly treated at the retrial, and therefore the request for removal of the trial judge should be and is denied.
THE ORDER'S DENIAL OF CEMENT PLANT'S MOTION TO PRECLUDE AVERAGING
We conclude that our decision previously entered effectively disposes of Cement Plant's claim of error here. We stated in our decision as follows:
Blue Book figures may be admitted by the trial court in its discretion if the court determines that this evidence would aid the jury on the issue of damages under the facts of this case.
Arcon Const. Co., supra, at p. 414.
If Arcon presents a satisfactory foundational showing that its actual ownership *672 cost records are inadequate, then, under our decision, averaging and the Blue Book rental rates may be used as secondary evidence of such ownership costs as an aid to the jury in its damage determination.
We point out that damages on the remand must be premised on the allocation of the cost of the equipment for the period involved, and we so construe our previous decision in this regard.
We, accordingly, affirm the trial court's denial of Cement Plant's motion to preclude averaging.
THE ORDER'S SUA SPONTE REINSTATEMENT OF ALL DAMAGES ITEMS NOT RELATED TO THE BLUE BOOK
Our initial decision clearly requires a "retrial on the damage question." We interpret this to mean a retrial of all of the elements of damages claimed by Arcon, including those provided for in the amended complaint. We, accordingly, reverse the trial court's omnibus order in this regard.
Therefore, pursuant to Appeal # 15092, we affirm the trial court in regard to Arcon's reinstatement motion, and we reverse with directions to allow amendment of the complaint as embodied in Arcon's motion. Pursuant to Appeal # 15091, we deny Cement Plant's request for removal of the trial judge; we affirm the trial court's denial of Cement Plant's motion to preclude averaging; and we reverse the omnibus order's reinstatement of all damages items not related to the Blue Book, and hold that upon retrial, all the elements of damages claimed by Arcon including those provided for in the amended complaint, may be properly considered.
FOSHEIM, C.J., and MORGAN and HENDERSON, JJ., concur.
WUEST, Justice, concurs specially.
WUEST, Justice (concurring specially).
I concur, except with the rule of damages pronounced in Arcon I and this opinion relating to idled machinery. The damages, if any, are the increased costs over and above the allocation for machinery costs bid in the contract. Simply stated, by way of explanation, assume an hourly rental rate or ownership cost of $15.00 per hour on a particular piece of machinery as bid or figured in the contract, and assume the breach of contract delays the project for two years and the rental rate or ownership cost increases to $20.00 per hour, then Arcon is entitled to $5.00 per hour for the hours allocated to the project for that piece of equipment. It should not be any great accounting feat to re-compute those rental rates or ownership costs. The increased costs may be shown by the current Blue Book rental rates at the time the work was done, or by expert testimony.
In addition, Arcon may recover additional damages resulting from the idled equipment. For example, the equipment remains on the job for two years because of the breach to complete a function of the construction process. Arcon recovers its damages in the preceding example for time allocated to the project, but in addition, they are entitled to the reasonable rental value of the machinery for the time it remains on the project site waiting to complete the project. However, ordinary depreciation and the cost of repairs must be deducted from the reasonable rental value, as those would be a cost to Arcon if the machine was rented or being used on a project. Also, Arcon had an obligation to mitigate damages by using the machine on other jobs or renting it to other contractors, if practicable. Nor would they be entitled to damages when the machine is idled by climatic facts. Again, the Blue Book rental rates may be used as a guide if the proper foundation is laid, or expert testimony may be used of people knowledgeable of rental rates in the industry.
In Arcon I, the court indicated a recovery may be had for security, maintenance, etc. I agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585084/ | 382 N.W.2d 576 (1986)
222 Neb. 136
ConAGRA, INC., Appellee and Cross-Appellant,
v.
CARGILL, INCORPORATED, Cargill Holdings, Incorporated, and MBPXL Corporation, Appellants and Cross-Appellees.
No. 83-849.
Supreme Court of Nebraska.
March 7, 1986.
*577 Fredric H. Kauffman and David R. Buntain, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellants.
John E. North and Leo A. Knowles, of McGrath, North, O'Malley & Kratz, P.C., Omaha, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, SHANAHAN, and GRANT, JJ., and RIST, District Judge, and COLWELL, District Judge, Retired.
PER CURIAM.
This appeal from the district court for Douglas County arises out of a corporate takeover battle between the plaintiff, ConAgra, Inc., and the defendant Cargill, Incorporated, to acquire a "target company," MBPXL Corporation. The following facts surrounding this litigation are uncontroverted by the parties. Further facts will be discussed in greater detail as they are applicable to individual assignments of error.
The plaintiff, ConAgra, is a publicly owned corporation with its stock listed on the New York Stock Exchange. Cargill and its wholly owned subsidiary, Cargill Holdings, Incorporated, are privately held corporations. Prior to its acquisition, the target company, MBPXL, was also a publicly held corporation with its stock traded on the New York Stock Exchange. All three corporate parties are corporations organized under the laws of the State of Delaware.
In July 1978 ConAgra and MBPXL management representatives met to discuss a potential stock merger between the two companies. On August 11, 1978, management representatives of MBPXL and ConAgra signed a "letter of intent" proposing a merger of the two companies. On August 16, 1978, the board of directors of MBPXL rejected this letter of intent. A second letter of intent, approved by the respective boards of ConAgra and MBPXL *578 and setting forth the terms of the proposed merger, was executed by the presidents of MBPXL and ConAgra on September 28, 1978. From September 28 through October 17, 1978, representatives of ConAgra and MBPXL conducted negotiations of the proposed merger. In September 1978 representatives of Cargill met with MBPXL representatives to discuss a possible acquisition of the company by means of a cash purchase of MBPXL stock. On October 11 and 12, 1978, Cargill representatives toured MBPXL's major plant facilities. On October 16, 1978, ConAgra's board of directors, pursuant to its resolution, approved an "Agreement and Plan of Reorganization and Merger." On October 17, 1978, the board of directors of MBPXL approved the agreement, and a copy was duly executed by both parties.
On November 14 Cargill Holdings entered into 14 separate agreements with certain shareholders of MBPXL, who included Messrs. Howard N. Marcus and Jerome D. Marcus, officers and directors of MBPXL. Pursuant to these contracts, Cargill Holdings acquired outright 21.9 percent of MBPXL's outstanding shares of common stock and agreed to acquire another 4.5 percent on January 3, 1979. On November 16 and 27, and December 5, 1978, the board of directors of MBPXL met to discuss the ConAgra merger agreement, the proposed Cargill tender offer, and related matters. On December 7, 1978, Cargill Holdings commenced its tender offer in which it agreed to begin purchasing shares on December 27, 1978. By January 24, 1979, Cargill had acquired approximately 92.5 percent of the outstanding MBPXL common stock. Upon the merger's becoming effective the separate corporate existence of Cargill Holdings terminated. On March 1, 1979, Cargill Holdings was merged into MBPXL corporation and has since operated as a wholly owned subsidiary of Cargill, Incorporated.
The record reveals that on November 21, 1978, ConAgra commenced an action in equity to restrain Cargill and Cargill Holdings from alleged tortious interference with the ConAgra-MBPXL merger agreement. On that same day the district court judge entered a temporary restraining order against the defendants. Following a full hearing on the matter, the district court entered a preliminary injunction enjoining the defendants "from tortiously interfering with the contractual relations between the Plaintiff and MBPXL Corporation." Nothing in the temporary injunction prevented the defendants from proceeding with a proposed tender offer for the stock of MBPXL; however, the district court enjoined the defendants from "selling, disposing of, encumbering or otherwise transferring said stock, until further order of this Court."
ConAgra later amended its petition, joining MBPXL as a party defendant and alleging that MBPXL was part of a conspiracy to interfere with the merger agreement and that MBPXL had breached that agreement. The defendants demurred to the amended petition on the grounds of improper joinder of contract and tort claims and parties defendant. The defendants' special demurrers were overruled.
Following extensive discovery, in November of 1979 the parties moved for partial summary judgment with respect to the issue of liability. After examining the pleadings, voluminous depositions, and exhibits, the district court, on April 10, 1980, concluded that no genuine issue of fact with respect to liability existed, entered a partial summary judgment in favor of the plaintiff, and denied the defendants' motion for partial summary judgment. The defendants subsequently moved the court to reconsider or make specific findings of fact, which motion was overruled. On September 30, 1981, the court determined that the case should proceed to trial as an equitable action, thereby denying the defendants' request to transfer the case to the law docket. Prior to trial, the case was transferred to a different district court judge, and the defendants renewed their motion to vacate the partial summary judgment or make specific findings of fact. These motions were again denied. Beginning on August 16, 1982, the district court held a 4-week *579 trial on the issues of proximate cause and damages. On October 3, 1983, the district court entered its decree and judgment against the defendants Cargill and MBPXL and awarded ConAgra $15,996,000 in damages. The defendants' subsequent motion for new trial was overruled on October 21, 1983.
The defendants appeal to this court and have assigned numerous errors relating to the pretrial rulings, partial summary judgment, and final decree rendered by the district court. For our purposes we need only discuss whether the district court was in error when it found that the respective corporations were liable to ConAgra because of MBPXL's failing to use its best efforts to bring about the proposed merger with ConAgra.
The "target" of two corporate bidders in this case was MBPXL, an integrated slaughterer and fabricator of beef products and byproducts. The corporation was formed in 1974 through the merger of Missouri Beef Packers, Inc., of Amarillo, Texas, and Kansas Beef Industries, Inc., of Wichita, Kansas. Since the merger of these two companies with their combined slaughter and fabrication facilities, MBPXL grew to be the second largest processor in the boxed beef industry, behind Iowa Beef Processors, the recognized leader in this highly competitive industry.
ConAgra is an Omaha-based, diversified, basic foods company with both domestic and international operations. As of its fiscal year ending May 29, 1977, ConAgra and its subsidiaries had total assets of $143,259,373, and stockholders' equity of $66,136,678. The consolidated net earnings of ConAgra for its fiscal year ending May 29, 1977, were $12,831,140.
Cargill is headquartered in Minneapolis, Minnesota, and is a privately held company engaged principally in the warehousing, transporting, merchandising, and processing of agricultural commodities. As of its fiscal year ending May 31, 1978, Cargill and its subsidiaries had total assets of approximately $3,252,315,000 and stockholders' equity of approximately $1,177,763,000. For the fiscal year ending May 31, 1978, the consolidated net income of Cargill was approximately $121,429,000.
ConAgra and Cargill are competitors. Approximately 90 percent of ConAgra's products are in competition with those of Cargill. In 1978, after careful study and evaluation, both ConAgra and Cargill concluded that MBPXL was the most attractive merger candidate for entrance into the boxed beef industry. In early 1978 ConAgra began contemplating entrance into the boxed beef industry and retained Lehman Brothers Kuhn Loeb, Incorporated, an investment banking firm, to discover potential merger candidates. However, it was not until July 1978 that officials from ConAgra initially met with representatives of MBPXL to discuss the possibility of a merger with ConAgra. Following this meeting, Messrs. Charles M. Harper and David La Fleur, the respective presidents of ConAgra and MBPXL, met again in Omaha.
On August 9, 1978, Messrs. Harper and La Fleur, along with Messrs. Melvin Rolf and Erving Priceman, the chairman and vice chairman of the board of MBPXL, held another meeting and agreed to meet in Kansas City within a few days with their lawyers and investment bankers to attempt to draw up an agreement in principle. On August 10, 1978, the executive committee of MBPXL's board of directors met and authorized Messrs. Rolf, La Fleur, and Priceman "to continue discussions with Con Agra" toward reaching such agreement. On August 11, 1978, an initial letter of intent was signed by Messrs. Harper and La Fleur, outlining the terms of agreement in principle. Under this initial agreement each shareholder of MBPXL was to receive, in exchange for one share of MBPXL common stock, seven-eighths of one share of ConAgra common stock plus one thirty-second of one share of ConAgra preferred stock. On August 14, 1978, the proposed merger was publicly announced by the parties.
On August 16, 1978, the board of directors of ConAgra met and approved the *580 "Letter of Understanding" executed on August 11, 1978, between ConAgra and MBPXL. That same day, the board of directors of MBPXL also met and resolved "that MBPXL Corporation not pursue further negotiations with ConAgra, Inc. and to terminate any and all such merger negotiations immediately," and that the company would publicly announce the same.
Since November 1976, Cargill had been studying the U.S. beef processing industry. Cargill became particularly interested in MBPXL after the publicity that ensued following the breakdown in negotiations between ConAgra and MBPXL. On August 24, 1978, two internal memos were circulated among top Cargill executives, expressing an interest in acquiring MBPXL and recommending possible contact with the company through its lead bank, Chase Manhattan, to Mr. Samuel Marcus, a retired former officer and director of MBPXL.
However, in mid-August and early September 1978 negotiations began again between ConAgra and MBPXL. Pursuant to these revived negotiations, ConAgra increased its offer for MBPXL and proposed an exchange offer of MBPXL common stock one-for-one for ConAgra stock.
On September 14, 1978, the merger and acquisitions committee of MBPXL met and agreed to recommend to the corporation's executive committee that an investment banking firm be hired to determine the comparative value of the corporation were it to be sold in its entirety. Following this recommendation, the executive committee met the same day and resolved to retain the investment banking firm of Blyth Eastman Dillon & Co., Incorporated (hereafter referred to as BEDCO).
On September 21 representatives of BEDCO contacted Cargill and inquired whether it would be interested in MBPXL. In the notes of Mr. Benjamin S. Jaffray, vice president-finance and treasurer of Cargill, it appears that the September 21 conversation with BEDCO was in response to Cargill's inquiry of MBPXL's bank, Chase. During the conversation, it was conveyed to Mr. Jaffray that MBPXL was "not for sale" but that its president, Mr. La Fleur, considered it his responsibility to talk with anyone who might be interested in the company. Mr. Jaffray's notes also indicate that he was informed that the MBPXL board of directors would be meeting in a week, apparently to discuss the ConAgra proposal, and that if Cargill was truly interested, it would have to act quickly. Notes from the conversation also evince that certain MBPXL shareholders would be amenable to a "cash deal."
On September 25 BEDCO representatives again talked with Mr. Jaffray and indicated that it would be better if Cargill officials met with MBPXL prior to September 28. Accordingly, on September 26, 1978, Cargill officials met in Wichita with Messrs. La Fleur and Rolf of MBPXL and Mr. Stanton of BEDCO. At that meeting Cargill officials expressed their interest in the boxed beef industry, and the parties generally discussed its strengths and weaknesses. During the meeting, the parties apparently discussed "what Cargill would do for MBPXL or could do for MBPXL," but Cargill officials "left that meeting with no real feeling about whether or not it would be appropriate or even possible for Cargill to proceed with any kind of attempted acquisition." Again, before the conclusion of the meeting, Mr. Stanton told Cargill officials that if they were interested, they should take action before September 28, the scheduled date of MBPXL's next board meeting.
On September 27 Messrs. Jaffray and Stanton had another phone conversation about the possible acquisition of MBPXL. Mr. Stanton indicated that Mr. La Fleur was favorably impressed with Cargill but that a $27- to $30-per-share cash tender offer "won't fly," versus a "$25 stock tax free transaction."
That same day, MBPXL officials met informally with their BEDCO advisers. Although not all the MBPXL directors were present, those present, including Messrs. Howard Marcus and Jerome Marcus, were informed of the meeting with Cargill and of *581 that company's possible interest in MBPXL.
However, as stated earlier, on September 28, 1978, ConAgra and MBPXL entered into a second letter of intent, confirming "the general understanding reached concerning the possible combination" of ConAgra and MBPXL. The letter was executed jointly by Mr. Harper, ConAgra's chief executive officer, and Mr. La Fleur, president of MBPXL, and contemplated the further negotiations of a "Definitive Agreement and Plan of Reorganization and Merger." The second letter of intent was duly approved by both boards of directors. The signing of the second letter of intent was also well publicized.
Following the signing of the second letter of intent, however, Cargill's interest in MBPXL did not abate. On September 28 Mr. Nau from BEDCO telephoned Mr. Jaffray. Mr. Nau indicated at that time that Mr. Stanton had been unable to delay MBPXL board action and that if BEDCO were to do anything on Cargill's behalf, any offer by Cargill would have to be above $25 per share.
In late September or early October, Cargill retained both the investment banking firm of The First Boston Corporation and the New York law firm of Skadden, Arps, Slate, Meagher & Flom for financial and legal advice concerning the possible acquisition of MBPXL.
On October 5, 1978, Cargill's interest in MBPXL was formalized through a letter from Mr. Cargill MacMillan, Jr., Cargill's senior vice president, to Mr. La Fleur. The letter was evidently a followup to a phone conversation the two men had had earlier that day. During their phone conversation, Mr. La Fleur told Mr. MacMillan that, in his opinion, an offer of $27 per share would not "draw flies" and also that he felt that because MBPXL had signed a letter of intent with ConAgra, the company had an obligation to carry it out. Mr. MacMillan's letter stated that he and Cargill's president, Mr. M.D. McVay, were prepared to recommend to Cargill's board of directors that it approve the acquisition of MBPXL at $27 per share in cash if Mr. La Fleur indicated to Cargill that the MBPXL board would support the proposal. The letter further indicated that if there was mutual interest, Cargill would expect to be in a position to make a formal proposal no later than October 17, 1978, and also requested a tour of MBPXL facilities.
In the meantime, on October 5, 1978, a memo was circulated among MBPXL and ConAgra officials setting forth the timetable for the merger. The memo set the date of October 17, 1978, for distribution of the merger agreement to MBPXL's and ConAgra's directors.
By October 5, 1978, both ConAgra and Cargill were keenly aware of the other's interest in MBPXL. An internal memo circulated at Cargill on October 5 to its board of directors indicates that Cargill was aware of the ConAgra-MBPXL agreement. This memo also indicated that, in Cargill's view, MBPXL could be acquired based on a competing offer of $27 to $30 per share. Another internal memo, captioned "MBPXL Tactics," was circulated at Cargill on October 10, 1978, outlining the presumed ConAgra selling points to MBPXL and detailing Cargill's counterpoints. A portion of this memo was specifically entitled "Strategy to cause Con Agra to drop out of the bidding." In part the memo stated: "The range of any competing offer on our part is so narrow that presumably we will only be able to make one bid. As a consequence, it should be high enough to force Con Agra out of the bidding, but should be no more than necessary to get the job done."
Throughout early October, ConAgra and MBPXL engaged in negotiations concerning the language of the merger agreement. Of particular concern to MBPXL in the drawing of the final agreement was the language concerning the right of MBPXL to consider other offers of more substance if they were to appear. The initial draft prepared by ConAgra's counsel and presented to MBPXL's general counsel contained language which "appeared to obligate the MBPXL Board to recommend a *582 merger with ConAgra, irrespective of whether MBPXL received any other offer to merge or be acquired." Concerned about this language, Mr. Williams, MBPXL's counsel, consulted with a law firm in Houston, Texas, experienced with similar merger agreements, for suggestions on possible language which would achieve MBPXL's purpose. Using modifying language suggested by the Houston firm, Mr. Williams sent the following proposed provisions to ConAgra's counsel:
From the date hereof until the effective time of the merger, MBPXL will not, without the prior written consent of ConAgra, approve or recommend to the holders of any shares of its capital stock, any merger, consolidation, disposition of all or substantially all of its business properties or assets, any tender offer, acquisition, or other business combinations, or furnish or cause to be furnished any information concerning its business properties or assets to any party in connection with any tender offer or `other takeover' transaction involving it, except insofar as may be required by law, or necessary in the opinion of its counsel, Messrs. Vincent, [sic] Elkins, Houston, Texas, to avoid possible liability of its directors or officers to the holders of its capital stock.
(Emphasis supplied.) Messrs. La Fleur and Harper discussed this language and agreed that the emphasized provision be deleted so as not to make MBPXL's obligations rest on the determination of the Houston law firm.
Around October 14, 1978, ConAgra's counsel prepared another draft, which contained the following "no merger" clause:
No Merger. From the date hereof until the Effective Time of the merger, MBPXL will not, without the prior written consent of ConAgra, approve or recommend to the holders of any shares of its capital stock, any merger, consolidation, disposition of all or substantially all of its business, properties or assets, any tender offer, acquisition or other business combination, or furnish or cause to be furnished any information concerning its business, properties or assets to any party in connection with any tender offer or other "takeover" transaction involving it, except insofar as may be required by law.
This provision was inserted because of ConAgra's desire to avoid becoming involved in a "bidding contest" for MBPXL. However, by deleting the emphasized language, the revised provision completely altered MBPXL's purpose in seeking to avoid binding its directors in the event a better offer appeared.
During the afternoon of October 16, Mr. Williams met with Messrs. Olson and Bacon of MBPXL's counsel, Shook, Hardy & Bacon. The three gentlemen agreed that the "no merger" clause was unacceptable to MBPXL. Mr. La Fleur was informed of his counsel's opinion and related it to Mr. Harper. The next day, negotiations between ConAgra and MBPXL continued. ConAgra's counsel ultimately agreed to delete the "no merger" clause and substitute instead a "best efforts" clause which read in part:
Best Efforts. The respective Boards of Directors and principal officers of each of ConAgra and MBPXL shall take all such further action as may be necessary or appropriate in order to effectuate the transactions contemplated hereby including recommending to their respective shareholders that the merger be approved; provided, however, nothing herein contained shall relieve either Board of Directors of their continuing duties to their respective shareholders.
(Emphasis supplied.) After these changes were made in the draft of the agreement, Mr. Williams went into a specially convened MBPXL board meeting. Following some discussion, the MBPXL board unanimously approved the definitive merger agreement. After the meeting Messrs. Williams and La Fleur flew from MBPXL headquarters to Omaha, where the final agreement was signed and executed.
Besides this change, the final agreement further provided:
The Board of Directors of MBPXL will duly call and use its best efforts to cause *583 to be held a special meeting of the shareholders of MBPXL on December 15, 1978, or the earliest practicable date thereafter, and has directed that this Agreement and the Merger Agreement be submitted to a vote at such meeting, and will recommend that the shareholders of MBPXL vote in favor of approval of this Agreement and the Merger Agreement.
During the negotiations leading up to the signing of the merger agreement, Cargill remained interested in MBPXL. On October 11, 1978, several Cargill officials toured a part of MBPXL's plant facilities. Cargill also had several discussions with its investment bankers, First Boston, regarding the acquisition. Basically, Cargill developed two strategies by which to acquire MBPXL: (1) negotiate with the major groups of MBPXL's shareholders (e.g., Marcus, Fulton, and Brown); or (2) make a cash tender offer for any and all outstanding shares.
On or about October 16, 1978, Mr. Stanton of BEDCO informed Cargill that it should be prepared to make an offer within the next 2 days, before the merger agreement with ConAgra was signed. Cargill representatives, through Mr. Weiksner, conveyed a proposal to Mr. Stanton of $30 per share if MBPXL would assume the liability, if any, for pending antitrust litigation.
This proposal, along with the October 5 letter of Mr. MacMillan to Mr. La Fleur, was considered by MBPXL's board at the October 17 special meeting. However, on the advice of Mr. Stanton and legal counsel, the board concluded that at that time it had no firm offer from Cargill to consider.
On October 18, 1978, BEDCO released its opinion to the MBPXL board of directors that the terms of exchange for MBPXL common stock as set forth in the agreement and plan of reorganization and merger were fair and equitable to MBPXL's stockholders. On October 20 an internal memo was circulated among Cargill directors outlining "key considerations of acquiring an interest in MBPXL Corporation." The memo set forth a timetable by which Cargill would approach the major shareholders to purchase their shares; help them with potential tax problems; inform MBPXL's board, through a letter, of Cargill's interest; and shortly thereafter make a public announcement of the proposed tender offer. The memo does not, however, mention the signing of the MBPXL-ConAgra merger agreement, although it does mention as a variable to be considered in its own offer a "price which realistically preempts a competing bid by Con Agra."
Nevertheless, on October 23, 1978, Cargill's board of directors met and decided to "make no effort to acquire MBPXL at this time." This decision was not communicated to MBPXL.
Meanwhile, that same afternoon, Mr. Howard Marcus, a director and stockholder of MBPXL, called Mr. Cargill MacMillan and left a message indicating that he was a "stockholder of MBPXL." When Mr. Marcus later reached Mr. MacMillan, he told him that he was calling in his capacity as a stockholder and inquired whether Cargill still had any continuing interest in "acquiring MBPXL." Mr. Howard Marcus, his father, Samuel, and brother, Jerome, aside from their respective roles as officers and directors, were significant shareholders in MBPXL.
While Mr. MacMillan testified that, during their phone conversation, Mr. Marcus said he was representing the Marcus family, Mr. Marcus himself maintained that he was only speaking for himself and for no other member of the family. In deposition testimony Howard Marcus did not recall indicating to Mr. MacMillan that a definitive agreement between MBPXL and ConAgra had been executed. However, Mr. Marcus did agree that the merger agreement was "public knowledge." Further, Mr. MacMillan's notes, taken during the conversation, contain a notation that read, "60 day Mid to late Dec." According to Mr. MacMillan, this note referred to "the date or the time when the ConAgra MBPXL merger would be completed." Mr. Marcus then suggested that the two get *584 together. The purpose of such a meeting, according to Mr. MacMillan's deposition, was Cargill's acquisition of MBPXL.
Their interest in MBPXL now rekindled, four Cargill representatives met on November 1 in Wichita, Kansas, with Messrs. Howard, Jerome, and Samuel Marcus and their attorney. At this meeting Cargill's general counsel announced that the sole purpose of the meeting with the Marcus family members was "as shareholders" and not in their capacity as directors or officers of MBPXL. The Marcuses indicated that this would not present any problems inasmuch as they apparently believed the proviso to the "best efforts" clause allowed them to enter into such discussions. The parties then discussed, according to Mr. Howard Marcus, "the attributes of MBPXL as a company and the direction we were going and why we thought the company was worth buying." (Emphasis supplied.) The parties also discussed a selling price for the shares of stock held by the Marcuses and the possible ramifications of that price in the antitrust litigation pending against MBPXL. At the conclusion of the meeting, Cargill's representatives said they would take this latest information back to their board for further discussion.
Meanwhile, throughout late October and early November, the ConAgra-MBPXL merger continued on schedule. On October 25, 1978, MBPXL's board met to determine its representatives on the combined board of directors. From October 25 through October 29, MBPXL representatives, including Messrs. Howard and Jerome Marcus, toured ConAgra plants in Alabama and Puerto Rico as part of the "due diligence" investigation. On October 26, 1978, however, ConAgra's board, still concerned about competition, authorized the purchase of MBPXL common stock "as a hedge against a cash tender offer by a third party."
On November 7 Messrs. Calvin Anderson and Heinz Hutter of Cargill phoned Mr. Howard Marcus and said that Cargill had "agreed in principle" to make an offer in the lower range of the price figures discussed on November 1. On November 8 a telephone conversation was held between Mr. Anderson and Mr. Blaes, the Marcus family attorney, with Mr. James Moe, counsel for Cargill, present but not participating in the conversation. During this conversation, Cargill representatives questioned Mr. Blaes about whether Mr. Howard Marcus was "uneasy about being emissary to get major shareholders together." Mr. Blaes responded affirmatively.
On November 10 attorneys for the Marcuses and Cargill met to draft agreements for the sale of MBPXL stock by the Marcuses, their relatives, and close associates. On November 13 Cargill received a copy of a list of MBPXL shareholders from the Marcuses' attorney.
On November 14 the board of directors of Cargill Holdings, Incorporated, authorized its officers to execute contracts for the purchases of MBPXL stock at $27 a share. On that same day 13 individuals, including the Marcus families, Mr. Joe Kirk Fulton, another MBPXL director, and several of their associates met with Cargill representatives and executed agreements for either the immediate or deferred purchase of their shares of MBPXL. Through these agreements, Cargill acquired outright 21.9 percent of MBPXL's outstanding shares and agreed to acquire another 4.5 percent on January 3, 1979. Cargill was prevented from acquiring through purchase agreements the entire 26 percent of stock due to limitations imposed by federal law under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. See 15 U.S.C. § 18a. (1982). The purchase agreements provided in part that Cargill would "use its best efforts to make, as promptly as practicable and in accordance with all applicable laws, a tender offer (the `proposed tender offer') for any and all MBPXL Common not then owned by Cargill, at a price of $27.00 per share, net to the Seller in cash."
On the evening of November 14, Messrs. McVay and La Fleur met, at which time Mr. La Fleur expressed his commitment to pursue the agreement between MBPXL and ConAgra. On November 15 Cargill *585 publicly announced the stock purchase transaction and its intention to make a tender offer to acquire the balance of MBPXL stock.
The following day, November 16, the MBPXL board of directors met in Wichita. At this meeting the board ratified its executive committee's appointments of members to a proxy committee for the stockholders' meeting to be held concerning the ConAgra merger. The board further decided to consider Cargill's announced intention to make a $27-per-share tender offer, and toward that purpose retained BEDCO for an analysis of the two proposals. By an 11-to-1 vote the board also suspended the Marcus brothers "of all duties and responsibilities as ... officer[s] and employee[s] of the Corporation ... pending further investigation of their participation in activities regarding the Merger Agreement with ConAgra, Inc. and the recent proposed tender offer by Cargill, Inc."
On November 20 MBPXL representatives met with Cargill representatives and generally discussed Cargill's intent regarding the future of MBPXL, its management, and control. On November 21, as previously stated, ConAgra commenced legal action against Cargill.
On November 27 the MBPXL board met again. Mr. Stanton of BEDCO advised the board that, in his opinion, the $27 offer from Cargill was superior to the ConAgra proposal. At the direction of one of the MBPXL attorneys, the board reviewed its various options:
1) proceed to recommend ConAgra, Inc. merger; 2) recommend Cargill, Inc. proposed tender offer; 3) proceed with proxy, etc. and shareholders meetings and present facts of both proposals; 4) a no action position by not proceeding with the ConAgra, Inc. merger and make no recommendation regarding the Cargill proposed tender offer at this time; 5) a continued review of the Cargill, Inc. proposed tender offer because of the financial and legal advice now before the Board and in view of the present market situation.
MBPXL's board decided to pursue the fifth option.
The board also discussed its potential liability under the merger agreement to ConAgra. Following this meeting, MBPXL's officers and directors were advised by their legal counsel not to communicate with ConAgra unless the discussions concerned an increased offer from ConAgra. Mr. La Fleur called Mr. Anderson of Cargill that day and informed him that MBPXL had "agreed to more positively pursue Cargill offer."
On November 29, just prior to the full hearing on ConAgra's request for a preliminary injunction, Cargill's investment bankers and legal advisers met with MBPXL representatives Dods, Olson, and Stanton in Minneapolis. Notes taken at this meeting reveal that the participants discussed stock options, management positions, expansion of operations, the Marcus family, indemnification, the upcoming MBPXL board meeting on December 5, and the defense of lawsuits brought by ConAgra against the Marcuses and Cargill.
On December 1 these individuals again met with Messrs. McGrory and Anderson of Cargill. The Cargill memo of this meeting stated: "Again, at the end of the discussions it was reiterated that Cargill had not made an offer nor negotiated any type of agreement with MBPXL but had merely advised the gentlemen representing MBPXL of Cargill policies and practices with respect to a number of issues."
As previously stated, on December 4, 1978, a temporary restraining order was issued against Cargill, Incorporated, and Cargill Holdings, Incorporated. Also on December 4, Mr. Harper met with MBPXL representatives to discuss ConAgra's offer vis-a-vis that of Cargill. This same day, BEDCO issued its opinion to MBPXL that the Cargill offer was superior to ConAgra's and that "the proposed tender offer of $27.00 per share affords a higher present financial benefit to MBPXL shareholders than do the proposed merger terms offered by ConAgra."
*586 On December 5, 1978, the MBPXL board of directors met and, upon further consideration of the options presented by legal counsel, unanimously approved the following resolutions:
"RESOLVED, that as a result of the intensive investigation undertaken by management and its financial and legal advisors and in view of the fiduciary obligation of this Board to its shareholders, this Board of Directors cannot recommend to its shareholders that they vote in favor of the proposed merger with ConAgra, Inc.;
"FURTHER RESOLVED, that in view of this decision that the shareholders meeting originally scheduled for December 15, 1978 be cancelled;
"FURTHER RESOLVED, that management and legal counsel be authorized to negotiate with ConAgra and its legal counsel a mutual termination of the Merger Agreement dated as of October 17, 1978;
"FURTHER RESOLVED, that this Board of Directors recommend to its shareholders that they accept the offer of $27.00 per share net to seller which Cargill, Inc. has indicated it would make in the immediate future, subject to the approval of the final terms of this offer being acceptable to a committee of the Board consisting of Messrs. Rolf and La Fleur with legal consultation."
Messrs. Howard and Jerome Marcus participated in this vote. The remaining pertinent facts are as stated in the introduction of this opinion.
To determine whether the district court correctly found the defendants MBPXL and Cargill liable to ConAgra for breach of contract or tortious interference with a contract, or both, we must, at the threshold, determine what obligation, if any, a board of directors has pursuant to a merger agreement prior to its approval by the shareholders. The resolution of this question turns upon a delicate interplay of principles of both contract and corporate law, neither wholly controlling the outcome.
The appellants assert that ConAgra has no claim to the "benefits" of the bargain because consummation of the merger agreement was dependent upon and subject to the approval of the shareholders of MBPXL and ConAgra. Applicable Delaware law provides that "[t]he board of directors of each corporation which desires to merge ... shall adopt a resolution approving an agreement of merger or consolidation" and that the agreement adopted "shall be submitted to the stockholders of each constituent corporation ... for the purpose of acting on the agreement." Del. Code Ann. tit. 8, § 251(b) and (c) (rev.1974). Appellants further assert that the merger agreement was an executory contract "specifically drafted to permit the MBPXL Board to fulfill its fiduciary duty to the company's shareholders." Brief for Appellants at 16. We believe that the appellants are correct in that regard.
A corporate director must act in the best interests of shareholders and is obligated to the duties of "fidelity, good faith, and prudence with respect to the interests of security holders, as well as the duty to exercise independent judgment with respect to matters committed to the discretion of the board of directors and lying `at the heart of the management of the corporation.'" Gt.West.Prod. v. Gt. West.United, 200 Colo. 180, 186, 613 P.2d 873, 878 (1980). These duties are applicable to a director's acts in recommending a proposed merger. See Smith v. Van Gorkom, 488 A.2d 858 (Del.1985). In the context of a proposed merger, a director has a duty under Del.Code Ann. tit. 8, § 251(b), to act in an informed and deliberate manner.
In Jewel Companies v. Pay Less Drug Stores Northwest, 741 F.2d 1555, 1564 (9th Cir.1984), the court of appeals recognized that "after the merger agreement is signed a board may not, consistent with its fiduciary obligations to its shareholders, withhold information regarding a potentially more attractive competing offer." See, also, Finklea v. Carolina Farms Co., 196 S.C. 466, 13 S.E.2d 596 (1941).
*587 The Securities Exchange Act of 1934 places affirmative disclosure obligations on directors in a case such as this. See, e.g., 15 U.S.C. §§ 78j(b) and 78n(d) (1982) (commonly §§ 10(b) and 14(d)).
This court should not sanction "agreements which have the effect of removing from directors in a very substantial way their duty to use their own best judgment on management matters." Abercrombie, et al. v. Davies, et al., 35 Del. Ch. 599, 611, 123 A.2d 893, 899 (1956), rev'd on other grounds 36 Del. Ch. 371, 130 A.2d 338 (1957). See, also, Chapin v. Benwood Foundation Inc., 402 A.2d 1205 (Del.Ch. 1979). A danger inherent in a merger agreement which prevents submission of competing offers to the shareholders pending submission of a merger proposal is that a director might feel "bound to honor a decision rendered under the Agreement even though it was contrary to his own best judgment." Abercrombie, supra, 35 Del.Ch. at 610, 123 A.2d at 899.
The MBPXL board recognized the difficulty in such an agreement when it insisted upon replacing ConAgra's "no merger" clause with its own "best efforts" clause which was intended to allow MBPXL to consider competing offers. Specifically, the "best efforts" clause read:
The respective Boards of Directors and principal officers of each of ConAgra and MBPXL shall take all such further action as may be necessary or appropriate in order to effectuate the transactions contemplated hereby including recommending to their respective shareholders that the merger be approved; provided, however, nothing herein contained shall relieve either Board of Directors of their continuing duties to their respective shareholders.
(Emphasis supplied.)
While the language before the proviso and the language after the proviso may be somewhat in conflict, it is clear that the parties recognized that there was a continuing fiduciary duty owed by each board of directors to its respective shareholders which could not be contracted away. In that regard we cannot imagine a greater duty owed to shareholders than advising them of the existence of a higher offer for their stock before asking them to approve a lower offer. The directors of MBPXL could not agree to assist ConAgra by pledging their best efforts if by doing so the directors of MBPXL violated their legal duties to the MBPXL shareholders. See Gt.West.Prod., supra. To hold otherwise would be to place innocent shareholders of a company at the mercy of corporate directors whom the shareholders rely upon for candor and fair dealing.
A director's duty to inform himself or herself in preparation for a decision derives from the fiduciary capacity in which he or she serves the corporation and its shareholders. See Lutz, et al. v. Boos, et al., 39 Del. Ch. 585, 171 A.2d 381 (1961). Since a director is vested with the responsibility for the management of the affairs of the corporation, he or she must execute that duty with the recognition that he or she acts on behalf of others. Such obligation does not tolerate faithlessness or self-dealing. See Smith v. Van Gorkom, 488 A.2d 858 (Del.1985). Even if the board of directors enters into a contract containing a lockup provision, the agreement must not infringe on the voting rights of shareholders or chill the bidding process. See Thompson, et al. v. Enstar Corp., et al., No. 7641, slip op. (Del.Ch. June 20, 1984, rev. July 5 & Aug. 16, 1984) (Hartnett, V.C.).
Whether the directors of MBPXL may have breached an enforceable agreement between ConAgra and themselves which might result in their personal liability to ConAgra is a matter we do not decide. That matter is not before us. But the directors could not enter into an agreement to violate their fiduciary obligations to their shareholders and then render the company and ultimately the shareholders liable for failing to carry out an agreement in violation of the directors' duty to the shareholders. To so hold, it would seem, would be to get the shareholders coming and going.
*588 When the MBPXL board resolved to cancel the shareholders' meeting at which the ConAgra merger proposal was to have been submitted and instead recommended shareholder acceptance of the cash-out Cargill offer, that was not a breach of the ConAgra merger agreement. Once the directors of MBPXL learned of the competing Cargill offer, the "best efforts" clause in the ConAgra proposal could not relieve the MBPXL directors of their duties to act in the shareholders' best interests. They had an obligation at that point to investigate the competing offer, and if, in the exercise of their independent good faith judgment, they found that the Cargill offer was a better offer for the MBPXL shareholders, they were bound to recommend the better offer. Gt. West. Prod. v. Gt. West. United, 200 Colo. 180, 613 P.2d 873 (1980).
The MBPXL board's decision to investigate the Cargill tender offer was not a ratification of the Marcuses' acts as independent shareholders in seeking a better price for their shares. The board was obligated by its fiduciary duties to the shareholders to investigate the Cargill tender offer. Gt. West. Prod., supra.
The MBPXL board was without statutory power to bind the corporation to the proposed ConAgra merger absent shareholder approval. Del.Code Ann. tit. 8, § 251(c). Several courts have held that analogous agreements are without binding legal effect absent shareholder approval. In Finklea v. Carolina Farms Co., 196 S.C. 466, 13 S.E.2d 596 (1941), the court denied specific performance of an option agreement, which was subject to shareholder approval, to purchase the defendant company's land. The shareholders indicated that they would not approve the plaintiff's offer after they received information of a better offer from the defendant company's management. The court denied relief after concluding that the option agreement was not binding absent shareholder approval and that the agreement had not relieved management of its fiduciary obligation to inform the shareholders of a better offer.
Similarly, in Masonic Temple, Inc., et al. v. Ebert, 199 S.C. 5, 18 S.E.2d 584 (1942), the court denied specific performance to the plaintiff corporation which had contracted to sell substantially all of its property to the defendant, subject to shareholder approval. The defendant sent a letter canceling the transaction prior to the shareholder meeting, after learning that misrepresentations had been made about the property. Shareholder approval of the sale was obtained nevertheless. The court held that absent shareholder approval the agreement was a mere offer to sell, and that defendant, therefore, had a right to withdraw the offer until a contract was formed by shareholder acceptance. See, also, American Cyanamid Co. v. Elizabeth Arden Sales Corp., 331 F. Supp. 597 (S.D.N.Y.1971); Smith v. Good Music Station, et al., 36 Del. Ch. 262, 129 A.2d 242 (1957).
In holding that the plaintiff had enforceable rights in the October 17 agreement even without shareholder approval, the appellee relies on Mid-Continent Telephone Corp. v. Home Telephone Co., 319 F. Supp. 1176 (N.D.Miss.1970). The Mid-Continent court held that the merger agreement between the plaintiff and the defendant was valid and binding. Damages for breach of the contract were awarded. The Mid-Continent case is, however, distinguishable. The court in Mid-Continent recognized that the defendant corporation was closely held and that informal shareholder approval had been obtained. In effect, the court held that the formal requirements had been waived by the shareholders. Also, none of the conditions which the defendant claimed were precedent to the formation of a binding contract involved shareholder approval. In the present case the ConAgra merger agreement was never formally or informally approved by the shareholders.
Under the circumstances in this case, the MBPXL board's fiduciary duties obligated it to withdraw its recommendation of the ConAgra proposal. Gt. West. Prod., supra.
*589 Furthermore, it would appear that the evidence, such as it is, would have required the trier of fact to engage in speculation regarding the question of whether any action not taken by the board of directors of MBPXL could have been the proximate cause of any loss sustained by ConAgra. It is difficult to imagine that, presented the facts, the stockholders of MBPXL would have accepted the offer. Because, however, we have determined there was no liability, we need not address that issue further.
The plaintiff's motion for summary judgment should have been overruled, the defendants' motion for summary judgment sustained, and the petition dismissed.
REVERSED AND REMANDED WITH DIRECTIONS.
WHITE, J., dissenting.
The majority opinion ignores basic principles of contract law which, if properly integrated with statutory corporate law, would have resulted in a partial affirmance of the district court's order. A "suitor" corporation now has no contractual rights with respect to actions by the board of a "target" corporation, despite agreements, as here, pledging only that the target's board of directors will use its best efforts to promote the merger with its shareholders. Because I do not agree with the majority's selective application of the law, I dissent.
At the height of negotiations between ConAgra and MBPXL, the latter proposed a "best efforts" clause for inclusion in the agreement. This clause reads:
The respective Boards of Directors and principal officers of each of ConAgra and MBPXL shall take all such further action as may be necessary or appropriate in order to effectuate the transactions contemplated hereby including recommending to their respective shareholders that the merger be approved; provided, however, nothing herein contained shall relieve either Board of Directors of their continuing duties to their respective shareholders.
(Emphasis supplied.)
The agreement also states:
The Board of Directors of MBPXL will duly call and use its best efforts to cause to be held a special meeting of the shareholders of MBPXL on December 15, 1978, or the earliest practicable date thereafter, and has directed that this Agreement and the Merger Agreement be submitted to a vote at such meeting, and will recommend that the shareholders of MBPXL vote in favor of approval of this Agreement and the Merger Agreement.
The MBPXL Corporation breached the promises contained in both paragraphs. The majority holds that the promisee is afforded no relief for those breaches. The majority mentions an inconsistency between the language before and after the proviso in the "best efforts" clause; however, a balanced application of contract and corporate law yields no inconsistency, and it respects the viability of both the business judgment rule and the duty of due care.
The language of the agreement allows the boards of both corporations seeking to merge or reorganize to enter into a binding contract governing the conduct of the parties pending submission of the agreement to the shareholders for approval. To view the language as the majority does circumscribes the role of corporate boards of directors in contravention of their traditional management function, the exercise of their business judgment. There is nothing unique about the decision to enter into a negotiated merger transaction that would warrant its removal from the realm of ordinary business affairs of the corporation, the management of which is entrusted to the board of directors. Indeed, consistent with its fiduciary duties, a board of directors is in the best position to provide guidance for shareholders of a corporation considering a buy-out or merger.
To adhere to the majority's position also ignores principles of contract law. A contract of this sort is properly interpreted as *590 a binding agreement indicating a present undertaking, with the parties contemplating the satisfaction of certain further conditions before a duty to perform arises. Mid-Continent Telephone Corp. v. Home Telephone Co., 319 F. Supp. 1176 (N.D. Miss.1970). The critical distinction between this interpretation and that of the majority is the difference between a condition precedent which must be performed before the agreement of the parties becomes a binding contract and one which must be fulfilled before the duty to perform an existing contract arises. Mid-Continent, supra. See, also, Omaha Public Power Dist. v. Employers' Fire Insurance Co., 327 F.2d 912 (8th Cir.1964); Restatement (Second) of Contracts §§ 224-226 (1981).
The majority's interpretation does not agree with the language of the agreement at issue. Paragraph 9 of the "Agreement and Plan of Reorganization and Merger" provides:
Conditions Precedent to Obligation of ConAgra. The obligation of ConAgra to perform and observe the covenants, agreements and conditions hereof to be performed and observed by ConAgra at or before the Effective Time of the Merger, and to effect the Merger, shall be subject to the satisfaction of the following conditions, which conditions may be waived in writing by ConAgra:....
One of the conditions listed below this clause was the following: "MBPXL Shareholder Approval.... [T]he Merger Agreement shall have been approved by the shareholders of MBPXL, as provided in the Delaware General Corporation Law." I interpret the conditions precedent in this agreement to mean those conditions which must be satisfied before the duty to perform on an existing contract arises, and not as conditions which must be satisfied before a binding contract exists at all.
The majority relies on case law either quoted out of context or entirely inapposite to the facts and law at issue. The majority uses Gt. West. Prod. v. Gt. West. United, 200 Colo. 180, 613 P.2d 873 (1980), in support of the proposition that a corporate director must act in the best interests of shareholders and is obligated to the duties of "fidelity, good faith, and prudence with respect to the interests of security holders, as well as the duty to exercise independent judgment with respect to matters committed to the discretion of the board of directors and lying `at the heart of the management of the corporation.'" Gt. West. Prod., supra at 186, 613 P.2d at 878. The majority also relies on that case for the proposition that directors of a target company cannot agree to assist the suitor company by pledging their best efforts if by doing so the directors of the target company violate their legal duties to target's stockholders. Finally, the majority asserts that Smith v. Van Gorkom, 488 A.2d 858 (Del.1985), makes these duties applicable to a director's acts in recommending a proposed merger.
In Gt. West. Prod., supra, the Supreme Court of Colorado was required to interpret the obligations imposed by a "best efforts" clause. Great Western Producers Co-operative had agreed to buy all the stock of Great Western Sugar Company, a wholly owned subsidiary of Great Western United Corporation. Pursuant to lengthy negotiations, United and the co-op executed a purchase agreement, which was unanimously approved by United's board of directors. Because the sugar company was United's major asset, Delaware law required that the sale be approved by the corporation's stockholders. A clause in the agreement stated that "United will use its best efforts to obtain the approval of its shareholders and debentureholders whose approval is solicited." Gt. West. Prod., supra, 200 Colo. at 182, 613 P.2d at 875.
During the interval between the execution of the agreement and the shareholders' meeting, the price of sugar, the seller's principal commodity, rose dramatically. Considering the effect of this price change on the value of the corporation, United's board of directors informed its shareholders that it could no longer recommend the sale at the agreed price. The shareholders' *591 meeting was held, and the sale failed due to insufficient votes. The co-op then sued for breach of the "best efforts" clause.
The Colorado Supreme Court concluded that the parties
did not intend that the "best efforts" clause would impose on United's board of directors any obligation which would conflict with the directors' legal duties to the corporation's security holders. These duties include fidelity, good faith, and prudence with respect to the interests of security holders, as well as the duty to exercise independent judgment with respect to matters committed to the discretion of the board of directors and lying "at the heart of the management of the corporation."
(Citations omitted.) Gt. West. Prod. v. Gt. West. United, 200 Colo. 180, 186, 613 P.2d 873, 878 (1980). The court affirmed the decision of the state court of appeals, which had held:
(1) the purchase agreement required United to exercise only its "best lawful efforts" to obtain security holder approval of the sale of the Sugar Company; (2) both federal and state law obligated United and its board of directors "to inform the security holders that, because of the change of circumstances [i.e., the increases in sugar prices and profits and the corresponding increase in the value of the Sugar Company], they believed the terms for the sale of the Sugar Company were no longer fair and equitable"; and (3) the September 14, 1974, reversal in the recommendation of United's board of directors to its security holders could not therefore constitute evidence of a breach of the "best efforts" clause.
Id. at 184-85, 613 P.2d at 877. In determining that United's board of directors had not breached the "best efforts" clause, the Colorado Supreme Court reasoned:
The "best efforts" obligation required that United and its board of directors make a reasonable, diligent, and good faith effort to accomplish a given objective, viz., security holder approval of the purchase agreement. The obligation, however, must be viewed in the context of unanticipated events and the exigencies of continuing business development and cannot be construed to require that such events and exigencies be ignored or overcome at all costs. In short, the "best efforts" obligation was tempered by the directors' overriding duties under sections 141(a) and 271(a) of the "General Corporation Law of the State of Delaware."
(Emphasis supplied.) Id. at 186-87, 613 P.2d at 878-79. The court further found that the directors had "inquired into changed circumstances and determined, pursuant to the exercise of their independent good faith judgment, that the terms of the purchase agreement were no longer in the security holders' best interests." Id. at 187, 613 P.2d at 879.
Smith v. Van Gorkom, 488 A.2d 858 (Del.1985), is inapposite on its facts alone. Van Gorkom was a corporate director engaged in negotiating a merger agreement without the knowledge or participation of the other board members. After the buy-out, which was recommended by the board and approved by a majority of the shareholders, the shareholders brought a class action suit, originally seeking rescission of the merger. The class sought alternative relief in damages against individual members of the board, the new corporation, and owners of the parents of the new corporation.
At issue in Van Gorkom was the liability of individual directors who failed to inform themselves and the stockholders of all information available and relevant to the proposed merger. The directors relied on the business judgment rule to validate their actions. Nevertheless, the court found that, under the circumstances, the directors were individually liable because they failed to inquire into the particulars of Van Gorkom's merger and because they failed to disclose, and in fact were not able to disclose, all material information that a reasonable stockholder would consider important in deciding whether to approve the offer. In an exacting look at the business *592 judgment rule, the court determined that the directors had not fulfilled their fiduciary duty of due care and had failed to satisfy virtually every element of the business judgment defense.
A board of directors blindly following the lead of one director to the ultimate detriment of all shareholders is a far cry from the facts in this case. Van Gorkom dealt with a board wholly uninformed and apparently uninterested in the terms of the merger agreement. Nevertheless, it recommended the merger to the shareholders, and the shareholders followed the advice.
In this case all MBPXL directors were aware of the ConAgra proposal and participated in constructing the final agreement. The MBPXL board deprived its shareholders of the opportunity to decide which was the superior offer when it canceled the promised shareholders' meeting. Had the MBPXL board used its best efforts to hold the meeting, then, as required by Delaware law, the shareholders could have compared the merger terms and selected the superior arrangement. Indeed, even if the MBPXL directors, pursuant to their fiduciary duties and statutory obligation to determine in an informed and deliberate manner whether to recommend the merger before submitting the proposal to stockholders, Del.Code Ann. tit. 8, § 251(b) (rev. 1974), had ultimately recommended Cargill's terms over ConAgra's, the board still would have been adhering to the terms of the "best efforts" clause.
This was precisely the situation in Gt. West. Prod. v. Gt. West. United, 200 Colo. 180, 613 P.2d 873 (1980), and in another case cited by the majority, Jewel Companies v. Pay Less Drug Stores Northwest, 550 F. Supp. 770 (N.D.Cal.1982), rev'd 741 F.2d 1555 (9th Cir.1984). In Jewel the plaintiff, Jewel Companies, Inc., and its subsidiary, Jewel Acquisition Corporation, entered into a merger agreement with Pay Less Drug Stores of Oakland, California (Pay Less Oakland). The agreement in Jewel, as in the instant case, provided for a tax-free exchange of stock and for the directors of Pay Less Oakland to use their "best efforts" to complete the merger. After the Jewel-Pay Less Oakland agreement was publicly announced, Pay Less Drug Stores Northwest (Pay Less Northwest) sought to acquire Pay Less Oakland through a competing cash tender offer. Because the Pay Less Northwest offer was worth more per share, $24 versus $14.75, Pay Less Oakland signed an agreement with Pay Less Northwest. Jewel failed to increase its offer, and Pay Less Oakland's board of directors unanimously recommended to its shareholders that they accept Pay Less Northwest's tender offer. The board's recommendation was placed before its shareholders along with a complete history of the two offers and relevant factors in the board's decision. Jewel then brought an action against Pay Less Northwest for tortious interference with contract.
The federal district court rejected the plaintiff's claims and granted the defendant's motion for summary judgment, commenting:
While it is true that the Oakland Board of Directors agreed to use their best efforts to complete the merger, it is also true that Jewel and its shareholders did not have then, and do not have now, an unequivocal right to the benefits of the merger. The power to approve the merger rested with the Oakland shareholders, and the Jewel agreement imposed no duty on those shareholders to ratify the merger agreement.
Jewel, supra, 550 F.Supp. at 772. The court went on to find that the merger agreement itself was not a binding contract, since the shareholders, as offerees, were the only parties with the power to accept the contract. Jewel, supra, 550 F. Supp. 770. The court further commented that "[t]he marketplace is the proper forum to resolve competing tender offers." Jewel, supra, 550 F.Supp. at 773.
The ninth circuit reversed the holding of the district court in Jewel. In its decision the court of appeals first held that under the California Corporate Code the boards of directors of two corporations seeking to *593 merge or reorganize "may enter into a binding merger agreement governing the conduct of the parties pending submission of the agreement to the shareholders for approval." (Emphasis supplied.) Jewel, supra, 741 F.2d at 1561. California's corporate code is quite similar in this regard to that of Delaware, the only difference being that board approval of the agreement need not necessarily precede shareholder approval. Cal.Corp.Code § 1001(a)(2) (West 1977). See Del.Code Ann. tit. 8, § 251.
The ninth circuit also held that, pending shareholder approval, a board may bind itself in limited areas to exert its best efforts to consummate a merger. Without delineating the full scope of a board's "best efforts" obligation, the court determined that the term does "include at a minimum a duty to act in good faith toward the party to whom it owes a `best efforts' obligation." Jewel, supra, 741 F.2d at 1564 n. 11. According to the court:
The board can bind the corporation temporarily with provisions ... which essentially require the board of the target firm to refrain from entering any contract outside the ordinary course of business or from altering the corporation's capital structure. Such provisions are intended, essentially, to preserve the status quo until the shareholders consider the offer.
Jewel, supra, 741 F.2d at 1564 n. 12.
Like Cargill and MBPXL, the appellees in Jewel argued that any contractual obligations a board of directors may have are always subject to its higher fiduciary duties to the shareholders of the corporation. The district court in Jewel had held that California corporate law mandated that corporate directors observe high standards of fiduciary duty with respect to shareholders, and when presented with another offer, the directors had a duty to compare the two offers and recommend the more attractive offer to the shareholders. Jewel, supra, 550 F. Supp. 770. However, the district court specifically reserved the question of whether the board of directors' fiduciary obligation required it to "affirmatively seek out other offers." Jewel, supra, 550 F.Supp. at 773 n. 1.
In reversing the district court's decision, the ninth circuit acknowledged the validity and importance of fiduciary duties but concluded that a board may bind itself in a preapproval merger agreement without violating those duties. At the outset the circuit court recognized that a corporate board of directors "may not lawfully divest itself of its fiduciary obligations in a contract." Jewel, supra, 741 F.2d at 1563 (citing Gt. West. Prod. v. Gt. West. United, 200 Colo. 180, 613 P.2d 873 (1980)). The court also acknowledged the fact that "[e]ven after the merger agreement is signed a board may not, consistent with its fiduciary obligations to its shareholders, withhold information regarding a potentially more attractive competing offer." (Emphasis supplied.) Jewel, supra, 741 F.2d at 1564 (citing U.S. Smelting, Refining, and Mining Co. v. Clevite Corp., [1969-1970 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 92,691 (N.D.Ohio 1968)). The circuit court also recognized:
The shareholders retain the ultimate control over the corporation's assets. They remain free to accept or reject the merger proposal presented by the board, to respond to a merger proposal or tender offer made by another firm subsequent to the board's execution of exclusive merger agreement, or to hold out for a better offer.
Jewel, supra, 741 F.2d at 1564. Nevertheless, the circuit court concluded that, consistent with its fiduciary duties and pending shareholder approval, a board may bind itself in limited areas to exert its best efforts to consummate a merger.
The majority further suggests that the record would not support an award of damages to ConAgra in any event because there was no evidence of proximate cause. ConAgra brought its cause of action against Cargill under a theory of tortious interference with the ConAgra-MBPXL contract, an intentional tort. To find Cargill liable for intentionally interfering with *594 the ConAgra-MBPXL merger agreement, it must be shown that the actions of Cargill caused the interference and the loss. Prosser and Keeton on the Law of Torts, Economic Relations § 129 (5th ed. 1984) (interference with contractual relations). Causation with respect to intentional torts does not involve considerations of foreseeability or reasonableness, as is the case with proximate cause. See Restatement (Second) of Torts § 870, comments c. and d. (1979). As a general principle, liability for intended consequences will be found if the conduct of the party who intentionally causes the injury or loss is generally culpable and not justifiable under the circumstances. The Restatement, supra § 870.
Whether a defendant's actions will be considered the legal cause of a plaintiff's loss turns on more than the mere fact that the defendant has reaped the advantages of the broken contract. The defendant must have played a material and substantial role in causing the plaintiff to lose the benefits of the contract. Prosser and Keeton, supra. A defendant is considered to have actively participated in causing the breach of contract and the resulting damages when the defendant holds out to the third party incentives suggesting a better price or better terms. Pure Milk Ass'n v. Kraft Foods Co., 8 Ill.App.2d 102, 130 N.E.2d 765 (1955); Cumberland Glass Mnf'g Co. v. DeWitt, 120 Md. 381, 87 A. 927 (1913), aff'd 237 U.S. 447, 35 S. Ct. 636, 59 L. Ed. 1042 (1915).
Normally, it is a question of fact whether a defendant has played a material and substantial role in causing a plaintiff's loss of benefits of a contract. Prosser and Keeton, supra. Following the district court's entry of the partial summary judgment, a pretrial conference was held, and the district court concluded that the question of causation was among those issues remaining for trial.
The evidence presented at trial on this issue is enlightening, considering that it consisted in part of testimony from Cargill's own expert witness. When asked by plaintiff's counsel to assume that the merger agreement had been executed and recommended by the boards and that no other party had made an intervening tender offer, whether the merger agreement would have gone through, Cargill's expert responded, "In my opinion it would have been overwhelmingly approved and would have gone through."
This testimony is consistent with that of ConAgra's expert witness, Mr. Peter Kennedy, and MBPXL's president, Mr. David La Fleur. Mr. Kennedy testified that, in his opinion, had the MBPXL shareholders been presented in December 1978 with the choices of tendering their shares for $27 each, exchanging their shares for shares of ConAgra stock pursuant to the agreement, or retaining their stock and doing nothing, the stockholders would have opted for ConAgra's terms because they offered the highest economic value. Similarly, Mr. La Fleur testified that, in his independent judgment, ConAgra's terms were better than Cargill's, in part because of tax ramifications of a cash deal. Mr. La Fleur also testified that in his discussions with other board members, none seemed to believe that Cargill's cash arrangement was worth more to MBPXL shareholders than the ConAgra shares would be after the merger with MBPXL.
In a de novo review where evidence is in conflict, this court gives weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts over the other. Chalupa v. Chalupa, 220 Neb. 704, 371 N.W.2d 706 (1985). Here, there is ample evidence to support the district court's finding that Cargill's interference in the contractual relations of ConAgra and MBPXL caused the breach and ConAgra's damages.
Based upon the majority's sweeping declaration of a board's fiduciary duties to its stockholders, it now appears that merger agreements, no matter how carefully drawn, are at best mere formalities, with no legal effect.
I agree with the statement in Jewel Companies v. Pay Less Drug Stores Northwest, *595 741 F.2d 1555, 1568-69 (9th Cir.1984), which reads:
It is nowhere written in stone that the law of the jungle must be the exclusive doctrine governing sorties into the world of corporate mergers. The legitimate exercise of the right to contract by responsible boards of directors can help bring some degree of much needed order to these transactions.
SHANAHAN and GRANT, JJ., join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585105/ | 815 F. Supp. 507 (1992)
Floyd V. HENO, Esther Capoccia, and Heidi Heno Mahr, Plaintiffs,
v.
FEDERAL DEPOSIT INSURANCE CORP., Defendant.
Civ. A. No. 91-12693-K.
United States District Court, D. Massachusetts.
June 1, 1992.
*508 Robert G. Wilson, Law Offices of Robert G. Wilson, III, Boston, MA, for plaintiffs.
Russell Frank Conn, Conn, Kavanaugh, Rosenthal & Peisch, Boston, MA, for defendant.
Memorandum and Order
KEETON, District Judge.
This is an action against the Federal Deposit Insurance Corporation ("FDIC") in its capacity as assignee of the receiver of the failed Home National Bank of Milford. Defendant's motion to dismiss the action under Fed.R.Civ.P. 12(b) (Docket No. 6, filed January 21, 1992) is now before the court. In conjunction with its motion, defendant has filed a memorandum of law (Docket No. 7) and the affidavit of Fred A. Raish (Docket No. 8). Plaintiffs have filed a memorandum in opposition (Docket No. 11) and two affidavits (Docket Nos. 12 and 13). Defendant has also filed a motion for leave to file a reply (Docket No. 14), which is hereby granted, and the reply is also before the court. For the reasons that follow, defendant's motion to dismiss is granted.
I. Background
For the purposes of addressing defendant's motion, I assume as true the facts stated in plaintiffs' submissions. Those facts are summarized below.
Plaintiff Floyd V. Heno engaged in a series of transactions with Balcol Corporation concerning a real estate development project known as "Prospect Heights." The now defunct Home Savings Bank of Milford participated in the financing of that project. Balcol was to pay a fixed sum to Heno upon the sale of each unit in the development. Heno took a second mortgage on the units in the development, and the bank, which provided construction financing, took a first mortgage. Under an arrangement that emerged, a portion of the proceeds of the sales were placed in escrow with the bank for use in financing the construction and for making interest payments owed the bank.
As part of their real estate transactions, Heno conveyed to Balcol the land on which Prospect Heights was to be developed and Balcol conveyed to Heno (for his daughters, co-plaintiffs herein) title to two subdivisions in Prospect Heights. Although the bank agreed to release its mortgage interests in those two subdivisions, it never did so. On a separate date, Balcol conveyed to Heno two *509 additional subdivisions. Once again, the bank agreed to release its mortgage interests, but failed to do so.
Also on a separate date, Heno conveyed to Balcol title to certain property ("Lot 53") for the construction of an access road, with the understanding that only a sliver of the property was required for the construction of the access road and that the majority of the property would be conveyed back to Heno after a permit to build the access road was obtained. Balcol did, in fact, convey title in Lot 53 to the extent not used for the access road back to Heno. However, due to mistake, Lot 53 had been encumbered by a first mortgage interest in favor of the bank that was not released. Heno did not discover that mistake until January 1991.
On June 1, 1990, the bank became insolvent and was taken over by the FDIC. The FDIC applied the escrowed funds to the principal amount owed by Balcol in violation of the bank's agreement to apply the funds only to construction costs and interest payments. The FDIC also refused to release the mortgage interests in the four subdivisions conveyed to Heno despite the bank's obligation to do so. Finally, the FDIC refused to release the mortgage in Lot 53 that had been erroneously recorded.
Despite discussions between the FDIC and plaintiffs' counsel in which the FDIC assured plaintiffs' counsel that it would determine whether to release its mortgage interests after an appraisal was performed, the FDIC to date has not satisfied the obligations undertaken by the bank. Plaintiffs served written requests for action upon the FDIC on December 13, 1990 and February 19, 1991. Those requests have gone unheeded.
In this action, plaintiffs urge the court to provide the following relief:
1. If the FDIC commences foreclosure proceedings on the four Prospect Heights subdivisions, that a short order of Notice be issued to show cause why a preliminary injunction should not be issued;
2. That a preliminary injunction issue prohibiting the FDIC from selling Lot 53 at foreclosure;
3. That a preliminary injunction issue ordering the FDIC to place back into escrow the funds improperly removed;
4. That a permanent injunction issue prohibiting the FDIC from foreclosing on the four contested subdivisions of Prospect Heights;
5. That the court order the FDIC to release its mortgage interests in the contested pieces of property; and
6. That the court issue judgment against the FDIC on each of plaintiffs' claims.
II. Injunctive Relief
This court is precluded from providing injunctive relief by 12 U.S.C. § 1821(j). That section provides:
(j) Limitation on court action
Except as provided in this section, no court may take any action, except at the request of the Board of Directors [of the FDIC] by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation [FDIC] as a conservator or a receiver.
Id. Plaintiffs contend that this prohibition does not apply to this case because they seek an injunction with respect to equitable interests owned by plaintiffs that are not "assets" of the FDIC. Plaintiffs' argument depends on their assertions that (a) § 1821(d)(13)(D) only limits judicial review over claims respecting "the assets of any depository institution" and (b) the plaintiffs own the equitable interests in the contested properties which therefore do not constitute "assets of any depository institution."
I conclude that both of plaintiffs' contentions are invalid. Plaintiffs argue that § 1821(j) ought to be "read narrowly" to conform to the limitations of § 1821(d)(13)(D), which plaintiffs argue is limited to bank assets. That argument is flawed in at least two respects. First, § 1821(j) prohibits the court from restraining or affecting "the exercise of powers or functions of the Corporation as a conservator or a receiver." This prohibition is quite broad, and cannot be "read narrowly" as plaintiffs suggest. Among other rights and powers, the FDIC has succeeded to "all rights, titles, powers, and privileges of the insured depository *510 institution," § 1821(d)(2)(A), and has plenary powers to operate the bank, § 1821(d)(2)(B). This court may not enjoin the exercise of those powers. Second, § 1821(d)(13)(D) states that "no court shall have jurisdiction over ... any claim relating to any act or omission of such [depository] institution or the Corporation as receiver." Thus, § 1821(d)(13)(D) is not limited to claims relating to the assets of depository institutions, but is much broader.
Furthermore, I conclude that plaintiffs' suggestion that this case does not concern the "assets of any depository institution" is incorrect. Plaintiffs contend that it holds all equitable interests in the assets, and that therefore the properties do not constitute assets of the bank. However, the bank holds mortgage interests in those properties. Even if the property itself is not an asset of the bank, the mortgage interests have an identifiable market value and constitute bank "assets." Plaintiffs seek to enjoin foreclosure pursuant to the first mortgages; however, such an injunction would affect the value of the mortgage assets held by the bank. Section 1821(j) prohibits such an injunction.
For all these reasons, the plaintiffs' first five requests for relief cannot be granted.
III. Exhaustion
Plaintiffs' sixth request for relief, that a determination be made on the merits of its claims, cannot be granted either because plaintiffs have failed to exhaust their administrative remedies as required. 12 U.S.C. § 1821(d)(13)(D); see Marquis v. Federal Deposit Ins. Corp., 965 F.2d 1148, 1151 & n. 3 (1st Cir.1992). Thus, this court lacks subject matter jurisdiction over plaintiffs' claims.
Plaintiffs claim that the exhaustion requirement does not apply to them, but that it only applies to creditors of a failed bank making claims to bank assets. For the reasons stated above, the five mortgage interests at issue are bank assets. Moreover, plaintiffs are incorrect that the claims procedure applies only to bank creditors. Section 1821(d)(13)(D) states, "Except as otherwise provided in this subsection, no court shall have jurisdiction over ... any action seeking a determination of rights with respect to[] the assets of any depository institution ... [or] any claim relating to any act or omission of such institution." Thus, jurisdiction to hear plaintiffs' claims must be explicitly granted within § 1821(d). See Marquis, supra, at 1152 & n. 5. Jurisdiction is granted only in cases where a claimant has first complied with the claims procedure.
Plaintiffs' assertion that they have satisfied the exhaustion requirement cannot be sustained. The exhaustion requirement is a jurisdictional requirement, the burden of pleading and proving which is on plaintiffs. Plaintiffs' written claims were mailed to the FDIC in December 1990 and February 1991. There is no allegation that any claim was filed with the FDIC before the bar date of September 6, 1990. Indeed, the Affidavit of Fred A. Raish (Docket No. 12) states that no such claims were filed before the bar date.
Plaintiffs assert, in the alternative, that they should be excused from the exhaustion requirement because their claims did not mature until after the bar date. More accurately, however, plaintiffs simply were unaware of or chose not to make their claims before the expiration of the bar date. Congress specifically decided under what circumstances to provide relief from the bar date for late-filed claims. 12 U.S.C. § 1821(d)(5)(C). Plaintiffs have not alleged reasons for failing to comply that fall within the exception set forth by Congress. Thus, this court has no jurisdiction to hear plaintiffs' claims as plaintiffs. In reaching this conclusion, however, I make no determination of what the result would be if plaintiffs were to make their present arguments in defense of a foreclosure action.
With respect to Heno's claims to the escrowed funds, Heno is a creditor rather than a debtor. (He contends that he is entitled to a share of the proceeds that the FDIC allegedly (mis)applied to reduce the amount of Balcol's outstanding indebtedness.) Thus, he had an obligation to present his claim before the bar date. 12 U.S.C. § 1821(d)(3). There is no allegation that § 1821(d)(5)(C) applies to grant him a reprieve. Therefore, defendant's motion to dismiss must be allowed unless plaintiffs' final claim that § 1821(d) *511 is unconstitutionalhas merit, a matter I turn to next.
IV. Constitutionality
Plaintiffs argue that § 1821 cannot constitutionally block judicial consideration of plaintiffs' state law claims. This argument is plainly without merit. Congress could certainly do so if it chose. The principles plaintiffs marshal in support of their contention are principles of statutory construction rather than constitutional law. However, I need not reach plaintiffs' arguments because § 1821 does not in fact bar judicial review of state law claims; all it requires is that plaintiffs first present their claims before the FDIC. Plaintiffs' failure in that regard strips this court of jurisdiction. Because judicial review would have been available following exhaustion of administrative remedies, plaintiffs' contentions regarding their Seventh Amendment right to a jury trial are insupportable.
Finally, plaintiffs contend that due process is denied them because § 1821 makes no provision for inchoate and after-discovered claims. However, this contention is to no avail. All of plaintiffs' claims are claims that could have been made within the time period allowed. Plaintiffs either chose not to do so or were unaware that the bank held any asset that plaintiffs would wish to claim.
Congress decided that to facilitate rapid wind-up of the affairs of a closed bank creditors could be limited to 90 days to evaluate and file their claims. Unless lacking actual knowledge that the bank has been placed in receivership, the creditor may be required to file within 90 days any claim the creditor may wish to press at any future time in any court. Marquis, supra, at 1151-52. That requirement is not unconstitutional.
ORDER
For the foregoing reasons, it is hereby ORDERED:
Defendant Federal Deposit Insurance Corporation's Motion to Dismiss Plaintiffs' Complaint (Docket No. 6) is allowed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585104/ | 508 So. 2d 216 (1987)
J. Michael COLEY, a minor who sues By and Through his father and next friend, Jerry M. COLEY; and Jerry M. Coley, individually
v.
G.T. HENDRIX.
85-814.
Supreme Court of Alabama.
January 30, 1987.
On Rehearing May 29, 1987.
Richard E. Browning, Mobile, for appellant.
Bert S. Nettles, Mobile, for appellee.
On Rehearing Ex Mero Motu May 29, 1987.
BEATTY, Justice.
Affirmed on the authority of Kent v. Sims, 460 So. 2d 144 (Ala.1984); White v. Law, 454 So. 2d 515 (Ala.1984); Allen v. Whitehead, 423 So. 2d 835 (Ala.1982).
AFFIRMED.
MADDOX, JONES, ALMON and HOUSTON, JJ., concur.
ON REHEARING EX MERO MOTU
PER CURIAM.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON, SHORES and BEATTY, JJ., concur.
JONES, ADAMS, HOUSTON and STEAGALL, JJ., dissent.
JONES, Justice (dissenting).
The majority, relying on Kent v. Sims, 460 So. 2d 144 (Ala.1984), White v. Law, 454 So. 2d 515 (Ala.1984), and Allen v. Whitehead, 423 So. 2d 835 (Ala.1982), is of the view that a change in our law would be required in order to reverse the summary judgment for the defendant in this dog-bite case. I respectfully disagree.
On December 7, 1983, a pit bulldog belonging to the defendant, G.T. Hendrix, attacked 8-year-old Michael Coley, causing him severe physical and emotional injury. This was the first time the 2-year-old dog had attacked anyone. The defendant's motion for summary judgment was countered by the plaintiffs' motion in opposition to summary judgment, supported by the affidavit of Dr. Randall Lockwood and by numerous documents, articles, and advertisements relating to the history and nature of pit bulldogs. The trial court also had before it the depositions of the defendant, the mother and father of Michael, and a neighbor of the defendant. The plaintiffs appeal from summary judgment entered in favor of the defendant.
Appellate review of the judgment below utilizes the same standard of testing the evidence that guided the trial court. Wright v. Robinson, 468 So. 2d 94 (Ala. 1985). That is, viewing all reasonable inferences from the facts most favorably to the nonmoving parties (the plaintiffs) (Cooper v. Elba Exchange Bank, 496 So. 2d 41 (Ala.1986)), and resolving any factual dispute or any doubt against the moving party (the defendant) (Cofield v. Smith, 495 So. 2d 61 (Ala.1986); Taylor v. Waters, 477 So. 2d 441 (Ala.Civ.App.1985)), we must determine whether there was any evidence offered by the plaintiffs to contradict the defendant's motion and create a triable issue of fact. See Horner v. First Nat. Bank of Mobile, 473 So. 2d 1025 (Ala.1985); Hart v. General Motors Acceptance Corp., 437 So. 2d 1255 (Ala.1983).
Applying this standard to the facts of this case, in light of the applicable substantive rule of law, I find that the evidence, and the reasonable inferences to be drawn from that evidence, did create a triable issue of fact. In my opinion, therefore, summary judgment was inappropriate.
I would not view a reversal of the trial court's ruling as a departure from the general rule of law that governs these "dog bite" cases. There is no merit to the oft-quoted maxim that a dog is "entitled to one free bite" before liability may be imposed upon the dog's owner. The law in Alabamaas *217 well as the general lawimposes liability on a dog owner for injury caused by the dog when the owner had knowledge or reason to know of the dangerous propensities of the dog. The owner's liability, however, is limited to the particular risk of harm which the owner knew or should have known to exist. Allen v. Whitehead, 423 So. 2d 835 (Ala.1982); Restatement (Second) of Torts, § 509 (1981).
Here, the defendant's motion for summary judgment required the trial court to determine whether there had been shown, either by positive proof or by inferences from the evidence, that the defendant had previous knowledge, actual or imputed, of his dog's propensity to cause the injury complained of here. The trial court held that the defendant was entitled to a judgment as a matter of law, "being of the opinion there [was] no genuine issue as to any material fact." This, in my opinion, was error.
The facts here do not present the "classic" dog-bite case. The trial court had before it documents which describe the history and nature of pit bulldogsanimals bred as tenacious attackers with a high tolerance for pain and with jaws capable of exerting 2,000 pounds of pressure per square inch. Reviewing this record, I cannot but find that the mere ownership of a pit bulldog may impute to the owner knowledge of the natural tendencies of that class of animalincluding an extreme aggressiveness toward other animals, a lack of external signs to warn of an impending attack, a refusal to cease an attack once it has begun, and a ratio of attack ten times greater than its proportionate representation in the canine population.
Other jurisdictions, in resolving the issue with which we are now faced, have held that the owner of a domestic animal is assumed to know the animal's general propensities and, therefore, is under a duty to use due care to prevent injury from the animal's reasonably anticipated behavior. Griner v. Smith, 43 N.C.App. 400, 259 S.E.2d 383 (1979). It has been held that evidence of a domestic animal's "vicious traits" is unnecessary when that animal has acted in accordance with its natural tendencies. Such action is reasonably foreseeable and, therefore, requires preventive control of the animal. Saldi v. Brighton Stock Yard Co., 344 Mass. 89, 181 N.E.2d 687 (1962). The general rule is aptly stated at 4 Am.Jur.2d Animals § 86 (1962) at 332, and § 90, at 337:
§ 86:
"[T]he owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and insofar as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them...."
§ 90:
"Even in the absence of any known viciousness in a domestic animal, its owner is obliged to exercise over it a certain degree of care depending upon the kind and character of the particular animal concerned, the circumstances in which it is placed, and the purposes for which it is employed or kept. The owner or keeper of a domestic animal is charged with knowledge of the natural propensities of animals of the particular class to which this animal belongs, and, if these propensities are of the kind that might cause injury he must exercise the care necessary to prevent such injuries as may be anticipated."
See, also, Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522 (1961); Pennyan v. Alexander, 229 Miss. 704, 91 So. 2d 728 (1957); Loftin v. McCrainie, 47 So. 2d 298 (Fla. 1950).
I would hold that whether this defendant knew or should have known of the likelihood that his pit bulldog would attack a human was a question of fact, not to be decided on a motion for summary judgment. Barrett v. Farmers & Merchants Bank of Piedmont, 451 So. 2d 257 (Ala. 1984); Comment to A.R.Civ.P. 56. I do not believe the defendant met the burden of *218 establishing the absence of evidence supporting the plaintiffs' claims of negligence; therefore, in my opinion, summary judgment was improperly granted and the judgment should be reversed. See Fountain v. Phillips, 404 So. 2d 614 (Ala.1981); A.R. Civ.P. 50, 56.
ADAMS, HOUSTON, and STEAGALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585102/ | 382 N.W.2d 421 (1986)
AMERICAN RIM & BRAKE, INC., Plaintiff and Appellant,
v.
James R. ZOELLNER, Defendant and Appellee. (Nos. 14982 and 15006)
AMERICAN RIM & BRAKE, INC., Plaintiff and Appellant,
v.
Douglas R. NORGAARD, Defendant and Appellee. (Nos. 14983 and 15007)
AMERICAN RIM & BRAKE, INC., Plaintiff and Appellant,
v.
James F. BUKREY, Defendant and Appellee. (Nos. 14984 and 15008)
Nos. 14982-14984 and 15006-15008.
Supreme Court of South Dakota.
Argued February 12, 1986.
Decided February 26, 1986.
*422 James R. Myers of Simons, Gibbs, Feyder & Myers, Sioux Falls, for plaintiff and appellant.
William C. Garry of Cadwell, Sanford & Deibert, Sioux Falls, for defendants and appellees.
MORGAN, Justice.
Plaintiff American Rim & Brake (American) appeals from a judgment entered by the circuit court on its plea for injunctive relief in which it asked that defendants James R. Zoellner (Zoellner), Douglas R. Norgaard (Norgaard), and James F. Bukrey (Bukrey) be permanently enjoined for a period of one year from accepting or continuing employment with any business that is in competition with American, and that defendants be enjoined from divulging confidential information obtained during the course of their employment with American. We reverse and remand.
Defendants were all employed as sales personnel by American. During their employment with American, defendants as part of their employment signed an agreement which contained the following restrictive covenant:
During the term of this Agreement and for a period of twelve (12) months from the date of the termination of this Agreement, for any cause whatsoever, the Salesman shall not, directly or indirectly, own, manage, operate, join, control, be employed by or otherwise participate or be connected in any manner with, any business that is in competition with the Company within any Territory assigned to the Salesman or within fifty (50) miles of the perimeter of any Territory assigned to the Salesman at any time within twelve (12) months from the termination of this Agreement. The parties acknowledge that the Company has invested substantially in the training of the Salesman and in the development of. (sic) The Salesman agrees that during the term of this Agreement and for a period of one (1) year from the date of the termination of this Agreement, for any cause whatsoever, the Salesman shall not directly or indirectly canvass, solicit or advise any customer or customers on whom he has called in behalf of the Company during the term of this Agreement. This restrictive covenant shall be construed as an agreement independent of any other provision contained herein and shall be enforceable in both law and equity[.]
In addition to its restrictive covenant, the employment agreement contained, in pertinent part, the following nondisclosure clause:
The Salesman agrees not to retain copies of any such information, papers, documents or records for any purpose whatsoever following the termination of his employment and will not, during his employment or thereafter, divulge to anyone confidential information obtained by *423 him during the course of his employment without the prior written consent of the president of the Company. The Salesman agrees that the use of or divulging of any such information, papers, documents or records or knowledge of Company policies or procedures for any purpose whatsoever would constitute an unfair trade practice and misuse of confidential information due to the disclosures and confidences involved in employment of the nature provided for herein ... The foregoing acknowledgments and agreement relating to confidential information received by the Salesman shall be construed as an agreement independent of any other provisions contained herein and shall be enforceable in both law and equity[.]
In March and April of 1985, defendants voluntarily terminated their employment with American and all entered employment with Power Brake & Wheel Inc. (P.B. & W.), a direct competitor of American. American then filed this action for injunctive relief. After a hearing, the trial court found, inter alia, (1) that none of the customers called upon by defendants while employed by American were exclusive customers of American. Some of these customers were also customers of American's competitors. (2) Since terminating their employment with American, defendants have not divulged to anyone confidential information obtained by them during the course of their employment with American. (3) American requires only its outside parts salesmen to sign employment agreements containing a covenant not to compete. American's managers have considerably more knowledge about documents and information considered confidential but are not required to sign such covenants.
Based upon these findings, the trial court concluded, inter alia, (1) that American demonstrated that the customer relationship developed by defendants is a legitimate business interest. (2) American failed to meet its burden of proving that enforcement of the restrictive covenant so as to bar defendants completely from employment with P.B. & W. is reasonably necessary to protect its business interests. (3) American's business interests would be adequately protected if defendants do not solicit or otherwise contact any customer that they contacted during their course of employment with American. (4) The covenant not to compete is unreasonable and unenforceable as a contract in restraint of trade to the extent that it would completely bar defendants from employment. (5) Defendants remain under a duty not to disclose to others or use for their own benefit confidential information obtained during the course of employment with American.
During oral argument before this court, counsel for all defendants and American admitted that defendant Zoellner was no longer employed by P.B. & W. Counsel conceded that Zoellner's present employer is not in competition with American. Thus, the noncompetition clause in the employment agreement is inapplicable. American seeks injunctive relief to prohibit Zoellner from continuing employment with a business competitor. Because of the change in circumstances, this relief cannot be granted. "If.... circumstances have changed so that the appellate court cannot render a judgment which can be made effective, the appeal must be dismissed." Save Centennial Valley Ass'n v. Schultz, 284 N.W.2d 452, 455 (S.D.1979). We deem appeals # 14982 and # 15006 regarding Zoellner to be moot, and they are dismissed. We do, however, retain appellate jurisdiction over the appeals involving defendants Norgaard and Bukrey, who are still employed with P.B. & W.
As its first issue, American contends that the trial court erred in modifying the agreement as the covenant not to compete is enforceable under the provisions of SDCL 53-9-11. That statute states:
An employee may agree with an employer at the time of employment or at any time during his employment not to engage directly or indirectly in the same business or profession as that of his employer for any period not exceeding two years from the date of termination of the *424 agreement and not to solicit existing customers of the employer within a specified county, city or other specified area for any period not exceeding two years from the date of termination of the agreement, if the employer continues to carry on a like business therein.
The trial court determined that even though the noncompetition covenant complied with the language of the statute, it was unreasonable and unenforceable as written in that it was not necessary to protect American's interests to completely bar defendants from employment with a competitor.
We note that SDCL 53-9-8 voids contracts which are in restraint of trade as a matter of public policy. SDCL 53-9-11, however, is one of the enumerated exceptions to the general policy. In reading the exception, we must construe it narrowly so as to promote the proscription against general restraints on trade. 1st American Systems, Inc. v. Rezatto, 311 N.W.2d 51 (S.D.1981).
It is noteworthy that the territorial and temporal limitations in American's noncompetition agreement with defendants nearly parroted the 1984 revision to SDCL 53-9-11 requiring, however, only a one-year abstention rather than two. Defendants argue that SDCL 53-9-11 also requires a trial court to find the noncompetition clause to be reasonable before it may be enforced.
The intent of a statute must be derived from the statute as a whole, from its language, and by giving the language its plain, ordinary and popular meaning. Moulton v. State, 363 N.W.2d 405 (S.D.1985). "This court will not enlarge a statute beyond its face where the statutory terms are clear and unambiguous in meaning[.]" Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985).
The clear import of SDCL 53-9-11 is to except noncompetition agreements from the general proscriptions against restraint on trade, as long as the noncompetition agreements comport with the statutory language. "We assume that statutes mean what they say and that the legislators have said what they meant." Cresent Elec. Supply Co. v. Nerison, 89 S.D. 203, 210, 232 N.W.2d 76, 80 (1975). SDCL 53-9-11 allows employers and employees to make exactly the kind of agreement entered into between American and defendants, without a further showing of reasonableness. In 1st American Systems, supra, we approved the trial court's voiding a noncompetition agreement that exceeded the then statutory limitations. But we then distinguished a nondisclosure agreement as not falling within the restraint of trade prohibition and proceeded to apply the reasonableness test to the nondisclosure agreement under completely different principles not called into issue in this appeal.
By way of notice of review, defendants claim that in any event the noncompetition clause in the contract fails because of a lack of consideration. Both defendants were already employed when they signed the employment agreement, and received no additional compensation. It was conceded at oral argument, however, that when originally employed defendants signed an employment contract containing a noncompetition clause in different form. Defendants were asked to sign these contracts containing a less restrictive noncompetition clause following the 1984 revision of SDCL 53-9-11. In light of this, we deem this argument to be without merit, considering SDCL 53-8-7. (Contract in writing may be altered by contract in writing without new consideration.)
As to appeals # 14983, # 14984, # 15007, # 15008, we reverse and remand with directions for the trial court to enter judgment consistent with this opinion.
FOSHEIM, C.J., WUEST, J., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
Although I fully concur in the substantive treatment of the issues herein, I can *425 only vote to concur in result due to the citation of Moulton v. State, 363 N.W.2d 405 (S.D.1985) (Henderson, J., dissenting). In said dissent, I assailed this Court's statutory interpretation. Rather, for the general rule on statutory construction and interpretation, I would cite Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981); and Wood v. Waggoner, 67 S.D. 365, 293 N.W. 188 (1940). When arriving at the intention of the legislature, it is presumed that the words of the legislature have been used to convey their ordinary, popular meaning, unless the context or the apparent intention of the legislature justifies any departure from the ordinary meaning. Oahe; Wood. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299345/ | 85 Ariz. 156 (1958)
333 P.2d 967
Cecil CAVENDER and Richard J. Dowdall, Appellants,
v.
The BOARD OF SUPERVISORS OF PIMA COUNTY, Lambert Kautenburger, Thomas S. Jay and Dennis E. Weaver, members of and constituting the Board of Supervisors, Appellees.
No. 6749.
Supreme Court of Arizona.
December 22, 1958.
*157 Richard J. Dowdall, of Tucson, in pro. per., and as attorney for appellant Cecil Cavender.
Raul Castro, County Atty. for Pima County, and H.E. Rogge, Jr., Chief Deputy County Atty., Tucson, for appellees.
*158 UDALL, Chief Justice.
Within ten days after the primary election held on September 9, 1958, appellants Cecil Cavender and Richard J. Dowdall, qualified electors of Pima County, sought to have their names placed on the ballot for the general election to be held on November 4, 1958, the former as a candidate for County Supervisor (District No. 2), and the latter as a candidate for State Representative (Legislative District No. 9). The Board of Supervisors of Pima County, appellees herein, refused to accept the certificates of nomination filed in behalf of appellants pursuant to the provisions of A.R.S., Title 16, chapter 6, which is entitled "Nomination Other Than By Primary Election".
Appellants filed application in the superior court for a writ of mandamus against appellees and an alternative writ issued, but after a hearing thereon, the lower court, on October 3, 1958, entered judgment quashing the alternative writ. This appeal followed. Time being of the essence, we gave immediate consideration to same. A skeleton record was filed and the rules governing appeals suspended. Briefs by respective counsel were immediately forthcoming and the matter was orally argued on October 14, 1958 and submitted for decision. Two days later, by an appropriate minute entry, a majority of the court ordered that the judgment of the lower court be reversed with directions that the board of supervisors be ordered to place the names of both appellants on the general election ballot in accordance with the provisions of A.R.S. § 16-844, subd. 2. It was stated that a written decision in accordance with the constitutional requirement (article 6, section 2, A.R.S.) would follow. We now state our reasons for the action taken.
The facts were stipulated to by the parties, hence the questions presented for our determination are purely matters of law. Both appellants are registered democrats; Cavender sought the democratic nomination for county supervisor (the same post he now seeks) in the primary election but was defeated; however, Dowdall was not a candidate at the primary for any nomination. It is conceded that both appellants, if elected, were qualified to hold the offices they seek.
It is the position of appellants with which we agree that irrespective of party registration, or whether they were or were not candidates for a party nomination at the recent primary election, they have an absolute right to secure a place on the general election ballot providing they comply with the provisions of A.R.S. § 16-601, supra, the pertinent portions of which read:
"A. Candidates for public office may be nominated otherwise than by primary election or by party committee in the manner set forth in this section.
*159 "B. A certificate of nomination stating the name of the office to be filled, the name and residence of the candidate and other information required by this section, shall be filed with the officer with whom primary nomination papers are required to be filed within ten days after the primary election. The certificate shall be signed only by voters who have not signed the nomination papers of a candidate for the office to be voted for at the last primary election, and who have not voted for any candidate for that office at the primary election.
"C. The certificate of nomination shall be in substantially the following form:
* * * * * *
"I hereby declare that I have not signed the nomination papers of any candidate to be voted for at the last primary election, and that I did not vote for any candidate for such office at the last primary election, and I do hereby select the following designation under which name the said candidate shall be placed on the official ballot (here insert such designation not exceeding three words in length as the signers may select). (Emphasis supplied.)
"Names of signers. Place of residence. Date of signing."
It was stipulated that the petitions filed by appellants met all of the requirements and conform in every way with the provisions of section 16-601, supra. Appellants maintain that it was solely for the purpose of meeting the statutory requirement as to selecting a designation that they inserted in their petitions, in each instance, the words "Clean Government". Appellants earnestly insist that by using this designation they had no intention of creating nor did they thereby create a new political party.
Appellees, on the other hand, advance the following proposition of law, viz.:
"a person has no legal right to be a candidate for a political office under a political designation that he is not affiliated with by registration. (Emphasis supplied.)
As applied to our problem this is a deceptive statement; we readily agree (1) that one seeking a party nomination for an office in the primary must be affiliated by registration with such party, and (2) that one may not be a candidate at the general election, e.g., of the Democratic, Republican, or Non-Partisan party, unless he is in fact registered with such party. However, it does not follow that because appellants Cavender and Dowdall are registered democrats they are ineligible to obtain a nomination under section 16-601, supra, this for the reason that the statute lays down no such requirement. It is *160 equally fallacious to assert that appellants are now in reality members of a newly created "Clean Government Party" and, not being registered as such, cannot find a place on the ballot under the column designated "Other Candidates". To sustain such an interpretation would completely emasculate and make wholly nugatory the statute in question. The legislature could not have intended that this statute be available only to the small fraction of unaffiliated voters. This section was to assure any elector an opportunity to run for office, and it should be remembered that in the general election there is but one ballot and an elector may vote for whom he pleases irrespective of party registration.
Furthermore, appellees claim section 16-601, supra, is in some manner violative of article 7, section 10, Constitution of Arizona. We are unable to perceive even the slightest merit to this contention. As a matter of fact the constitutional proviso merely contains a mandate:
"The Legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective State, county, and city offices, including candidates for United States Senator and for Representative in Congress." Art. 7, Sec. 10, Const. of Ariz.
Obviously this was not intended to make of the primary election statutes enacted pursuant thereto the exclusive method of nominating candidates. Basically, the primary election law was intended to supplant the abuses and evils of the party convention method of selecting candidates which had grown up in territorial days in favor of a direct vote of the people through the medium of a primary election. Historically it appears that the statute in question (section 16-601), essentially in its present form, has been a part of our laws since the turn of the century (See, Section 2320, Revised Statutes of Arizona 1901). Hence it manifestly appears this alternative method of securing a place on the general election ballot has, for more than fifty years, been available to an office seeker irrespective of whether candidates were nominated under the "party convention" system or the "direct primary" method. Since there is no limitation in article 7, section 10, supra, upon the power of the legislature to provide for "nomination other than by primary election", we hold the powers of the legislature upon the subject are plenary.
This final question is presented: are either of the appellants precluded from having their names appear on the general election ballot by reason of their being registered democrats? The answer is no, because as we see it the official registration of appellants as democrats has nothing to do with their right to procure a nomination "other than by primary election" under *161 the provisions of section 16-601, supra. This statute does not limit such right to only those who are unregistered as to party affiliation. No mention is made of registration in this statute, hence we have no right to write such a proviso into the law. As a matter of fact a nominating petition under this statute may be signed by any qualified elector irrespective of party affiliation providing he can meet the other requirements as to not having voted for, or signed the primary nomination papers of any candidate at the primary for such office. Furthermore, as we interpret the statute, the mere fact that appellant Cavender was a defeated candidate in the primary election does not in any way affect his right to avail himself of the provisions of section 16-601, supra. This for the reason that the statute has no such prohibition contained therein. Cf. Broughton v. Pursifull, 245 Ky. 137, 53 S.W.2d 200; George v. Board of Ballot Com'rs, 79 W. Va. 213, 90 S.E. 550; Napier v. Roberts, 172 Ky. 227, 189 S.W. 206.
We take no stock in appellees' contention that appellants, by using, in parentheses, the designation "clean government" thereby created a new party, and not being registered with such party that they cannot avail themselves of the privilege granted by the statute followed in the instant case. The following proviso for placing the names of such candidates on the general election ballot clearly manifests the legislative intent, viz.:
"* * *. The names of all candidates nominated under the provisions of section 16-601 shall be placed in a single column at the right of the party columns and shall bear the heading in boldface type: `Other candidates', and immediately under such headings the words: `Vote separately for each office.' Immediately above the name of each candidate, in parentheses, shall be printed the designation prescribed in the candidate's certificate of nomination." A.R.S. § 16-844, subd. E.
The fourth column at the right in which appellants' names would appear on the ballot bears the title in bold face "Other Candidates". We submit that this very arrangement belies any interpretation that in such column are the candidates of a new party, to wit: "clean government". Candidates having true party status appear in the columns labelled Democratic, Republican, or Non-Partisan.
It should be noted that all of the cases relied upon by appellees in support of their contentions involve primary election problems. For instance, see, Roberts v. Cleveland, 48 N.M. 226, 149 P.2d 120, 153 A.L.R. 635, cited by them. Obviously such decisions are not applicable for ours is a general election problem.
*162 While the questions here presented were not passed upon therein, it is interesting to note that in the case of Brooks v. Kerby, 48 Ariz. 194, 60 P.2d 1074, this court recognized that the plaintiff (Brooks) had the right under the statute here in question to secure a nomination other than by primary.
It is for the foregoing reasons that we reversed the judgment of the lower court.
WINDES and JOHNSON, JJ., concur.
PHELPS and STRUCKMEYER, Justices (dissenting).
We dissent from the majority opinion insofar as it relates to appellant Cecil Cavender. It is our view that when a person submits his name as a candidate for public office subject to the direct primary and is defeated, he has exhausted his right to be a candidate at the general election.
Art. 7, § 10 of the Constitution requires that the legislature enact a direct primary election law "which shall provide for the nomination of candidates for all elective * * * offices * * *." Now, primary elections have application only to regularly constituted political parties; so if this language has any significance, it must mean that the winner of the primary election as nominee goes on the general election ballot and the loser does not. Otherwise, the underlying political theory that the cranks and the incompetents will be weeded out is destroyed and the basic purpose of the direct primary that by a process of elimination the number of candidates of a political party will be reduced to one is defeated.
As is pointed out, the framers of the Constitution in adopting the direct primary system intended to remove the abuses which had grown out of the old convention plan wherein the most qualified candidate, at least insofar as the majority of the members of the party were concerned, was not always chosen because the control of the Convention often fell into the hands of a select few who were not responsive to the will of the majority. To this extent, the direct primary accomplishes the basic objective inherent in representative government; namely, that the will of the majority governs. We therefore believe that the majority opinion of this court not only thwarts the underlying principle of the direct primary as proposed by the Constitution, but circumvents the governing wish of the majority members of a political party. This practice, if countenanced, will inevitably result in defeating the will of the majority of the party at a general election.
For this reason we believe the judgment of the lower court as to Cecil Cavender should be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585062/ | 24 So. 3d 1242 (2009)
Joseph Edward TETREAULT, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-4452.
District Court of Appeal of Florida, First District.
December 31, 2009.
Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
THOMAS, J.
Appellant seeks review of his convictions and sentences for sexual battery and lewd and lascivious molestation on a child 12 years of age or older but less than *1243 16 years of age. Appellant alleges that the trial court erred in allowing the State's peremptory strikes of four prospective male jurors. In addition, Appellant argues that the trial court reversibly erred in admitting the victim's prior testimony, as it constituted improper prior consistent statements. Finally, Appellant argues that the trial court erred in admitting testimony by a law enforcement investigator that he did not arrest every person accused of a sex offense.
We agree with Appellant on all three issues and reverse and remand for a new trial. We write only to address the jury selection issue, which moots the other evidentiary issues. We reject without comment Appellant's argument regarding closing argument.
Appellant was charged with two counts of sexual battery by use or force not likely to cause serious personal injury (counts I and II), two counts of lewd or lascivious molestation on a child 12 years of age or older but under 16 years of age (counts III and IV), and one count of lewd or lascivious molestation of a child under 12 years of age (count V). Count V was severed from counts I-IV for the purposes of trial.
A jury was selected for trial as to counts I-IV. Of the twenty-one prospective jurors, six were male and fifteen were female. Originally, three men were picked for the jury, including Jurors McCall and Walstedt. The State utilized backstrikes on the three men, however, and the defense sought gender-neutral reasons for the strikes. The State offered that Walstedt was struck because he did not contribute to voir dire, and McCall was struck because the prosecutor was concerned that he was a student, was not working, had worked with kids "giving advice or something," and the State did not feel comfortable with him. The trial court accepted the State's reasons as gender-neutral.
Florida follows a three-step procedure when one party objects to another's use of a peremptory challenge on the basis of gender. See Melbourne v. State, 679 So. 2d 759 (Fla.1996); Welch v. State, 992 So. 2d 206 (Fla.2008). First, the objecting party must make a timely objection, requesting that the striking party provide its reason for the strike. Melbourne, 679 So.2d at 764. The defense made such objections here. Second, the burden shifts to the proponent of the strike to present a "gender-neutral explanation" for striking the disputed juror. Id. Here, the State responded with facially gender-neutral explanations for the use of the strikes. Third, the court must determine, given all the attendant circumstances, whether the proffered explanation is pretext for a discriminatory motive. Id.
In Melbourne, the Florida Supreme Court provides the following guidance for this last inquiry:
The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. . . . Accordingly, reviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a non-discriminatory manner. Second, the trial court's decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.
Id. at 764-65 (footnotes omitted).
The trial court properly proceeded to step three, which considers whether the proffered explanation is genuine or a pretext. In allowing the strikes, however, the trial court did not make express rulings explaining why it found that the State's reasons for striking the prospective jurors were genuine. Instead, with respect to the strikes of McCall and Walstedt, the *1244 court stated, "I'll accept the State's genderreasons for gender-neutral selection."
Implicit in its allowance of peremptory strikes are findings that the explanations were genuine. See Fleming v. State, 825 So. 2d 1027, 1029 (Fla. 1st DCA 2002) (stating that "we must conclude that, by overruling the defense's objections, the lower court made an implicit finding that the state's strikes were genuine."); Bowden v. State, 787 So. 2d 185, 188 (Fla. 1st DCA 2001). In Simmons v. State, 940 So. 2d 580 (Fla. 1st DCA 2006), however, this court held that the record did not indicate that the trial court reached the third step in the Melbourne analysis because when the defense challenged the prosecution's reason for striking a potential juror, the trial court stated, "I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason." Simmons, 940 So.2d at 582. This court continued, "By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution's reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis." Id. at 582-83.
Like Simmons, the court below bypassed the third step in the Melbourne analysis and focused solely on the fact that the State's reasons behind its peremptory strikes were gender-neutral. It did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine.
Accordingly, because the record does not indicate that the trial court engaged in the required third step of the Melbourne analysis, we are required to reverse and remand for a new trial. See Simmons, 940 So.2d at 583 (citing Jones v. State, 787 So. 2d 154 (Fla. 4th DCA 2001)).
REVERSED and REMANDED.
HAWKES, C.J., and BENTON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585068/ | 508 So. 2d 538 (1987)
BRADENTON MALL ASSOCIATES, a Florida General Partnership; Fred A. Beshara; Fred M. Beshara; James M. Beshara; Nicholas Manos; Dorothy Manos; Bradenton Mall Holding Corporation; Dorothy Manos, As Personal Representative of Nicholas Manos, Deceased; James M. Beshara, As Personal Representative of Fred A. Beshara, Deceased; and the Edward J. Debartolo Corporation, Petitioners,
v.
Pamela E. HILL, Respondent.
No. 87-793.
District Court of Appeal of Florida, Second District.
June 12, 1987.
T.R. Unice, Jr. of Bradham and Bennett, St. Petersburg, for petitioners.
Dale L. Price of Price & Price, Chartered, Bradenton, for respondent.
PER CURIAM.
Petitioners seek a writ of certiorari to quash an order of the circuit court which denied a motion to strike a claim for punitive damages and directed petitioners to furnish certain discovery information relative to that claim. Because the petition seeks relief from an objectionable request for production of financial information, we agree with petitioners that review by certiorari is appropriate. Tennant v. Charlton, 377 So. 2d 1169 (Fla. 1979); Jenkins v. Milliken, 498 So. 2d 495 (Fla. 2d DCA 1986).
Respondent states in her complaint that while a business invitee in a shopping mall owned and operated by petitioners she was abducted and raped by a third party assailant. Liability against petitioners is inferred from their alleged failure "to provide security even remotely adequate for the reasonable safety of their invitees." Respondent maintains that the assailant's *539 "manner of dress, unkept [sic] appearance, and length of stay on Defendants' premises, together with Defendants' past experience as to this property and immediate vicinity, should have put Defendant[s] ... on notice of the need to take the necessary and appropriate measures to protect Plaintiff from reasonably foreseeable harm" and that petitioners had actual or constructive knowledge of prior similar criminal acts committed upon other invitees.
Petitioners concede, and we agree, that the complaint is sufficient to state a cause of action for negligence. See, e.g., Paterson v. Deeb, 472 So. 2d 1210 (Fla. 1st DCA 1985), petition for review denied, 484 So. 2d 8 (Fla. 1986); Crown Liquors of Broward, Inc. v. Evenrud, 436 So. 2d 927 (Fla. 2d DCA 1983), petition for review denied, 447 So. 2d 886 (Fla. 1984). However, the degree of negligence required to sustain a claim for punitive damages is more than gross negligence. It must involve "that entire want of care which would raise the presumption of a conscious indifference to consequences ... or that reckless indifference to the rights of others which is equivalent to an intentional violation of them." White Construction Co. v. Dupont, 455 So. 2d 1026, 1029 (Fla. 1984), quoting from Carraway v. Revell, 116 So. 2d 16, 20 n. 12 (Fla. 1959).
Ten Associates v. Brunson, 492 So. 2d 1149 (Fla. 3d DCA), petition for review denied, 501 So. 2d 1281 (Fla. 1986), dealt with a factual scenario similar in principle to the allegations in the case at bar. The defendants in Ten Associates owned and operated an apartment complex located in a high crime area. During the course of approximately one year there were over sixty reported "incidents," yet the landlords discharged a private security agency and undertook to provide security themselves using persons generally lacking in experience or training. A victim of one attack successfully sued for negligence, but on appeal the court found no basis for the award of punitive damages, noting that defendants had made at least some effort to provide security. See also, Gerber Children's Centers, Inc. v. Harris, 484 So. 2d 91 (Fla. 5th DCA 1986). If the actions of the defendants in Ten Associates, which allegedly were motivated primarily by financial considerations, do not rise to the level of malice and recklessness required for an award of punitive damages, it cannot be said that respondent has pled an adequate case against petitioners. Respondent does not claim that petitioners provided no security, only that the security that was present negligently failed, as did the one guard on duty in Ten Associates, to recognize the danger posed by respondent's attacker.
Respondent attempts to distinguish the present case from Jenkins because there the trial court conducted an evidentiary hearing and had before it depositions and other indicia of the plaintiffs' ability to prove their case whereas here petitioners essentially ask us to make the same determination on the pleadings alone. However, if the facts as set forth in a complaint are taken as true and still do not properly state a claim for punitive damages, the court can enter a protective order solely upon a review of the pleadings. Solodky v. Wilson, 474 So. 2d 1231 (Fla. 5th DCA 1985). In the present case, although respondent ends the allegations in her complaint by stating that petitioners' inadequate security precautions "exhibited a willful, wanton and reckless disregard for the rights, safety, and welfare of Plaintiff," such statements are no more than "conclusory allegations ... not supported by allegations of fact." Solodky, 474 So.2d at 1233.
For the foregoing reasons we grant the petition for writ of certiorari and direct the trial court to sustain petitioners' objections to the request for production. Our decision is without prejudice to subsequent discovery of petitioners' financial data in the event respondent drafts factual allegations or produces new evidence sufficient to sustain a claim for punitive damages. Jenkins.
*540 Certiorari is granted and the matter remanded with directions for further proceedings consistent with this opinion.
RYDER, A.C.J., and SCHOONOVER and FRANK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585374/ | 382 N.W.2d 419 (1986)
In the Matter of the ALLEGED DEPENDENT AND NEGLECTED STATUS OF: D.B. and D.B., and Concerning J.B. and C.B.
No. 14975.
Supreme Court of South Dakota.
Considered on Briefs January 14, 1986.
Decided February 26, 1986.
Michael Carter, Pierre, for appellant Mother.
Robert Kelley, Lemmon, for D.B. and D.B.
Janice Godtland, Asst. Atty. Gen., Pierre, Curtis Hanks, Perkins Co. States Atty., Lemmon, for Appellee, State of S.D.
FOSHEIM, Chief Justice.
C.B. (mother) appeals from the decree terminating her parental rights over D.B. and D.B. We reverse and remand.
*420 The State of South Dakota (State) filed a petition alleging that D.B.-1 and D.B.-2 were dependent and neglected children as defined by SDCL § 26-8-6. An adjudicatory hearing was held on November 10, 1983. In response to the parents' motion to dismiss for failure to establish dependency and neglect by clear and convincing evidence, the trial court stated from the bench:
The motion [to dismiss] insofar as it, as it is directed warranting the statutory proof of therequirement of the state is granted insofar as the clear and convincing aspect goes. However, the Court does find that the state has by a preponderance of the evidence shown that there has been dependency and neglect in this action and I so find specifically as follows: I do not find that the state has carried the burden of proof to show by clear and convincing evidence that a termination of parental rights is the essential remedy required in this case.
The court ordered the children to be temporarily returned to their parents and set guidelines regarding counseling, parenting classes, and supervision by Social Services. A review hearing on the temporary dispositional order was scheduled. The court entered an order of adjudication on June 26, 1984, which declared both children to be dependent and neglected and again referred to the standard of proof as a "preponderance of the evidence." A dispositional hearing was held July 25, 1984, following which the court ruled that the State had established by "clear and convincing evidence" that termination of parental rights was the least restrictive alternative. Formal findings of fact and conclusions of law were made and a decree of disposition was filed on March 27, 1985. The father does not appeal.
The mother has a history of psychological problems, and is apparently unable to adequately care for the two children. Neither child was developing physically or mentally as they should while in her care. D.B.-1, seven years old, has been diagnosed as having a pervasive development disorder. A professional at the West River Children's Home, D.B.-1's present placement, testified the child has a schizophrenic makeup, is detached and has inappropriate language development. D.B.-2, the younger child, shows more emotion than his older brother and is more verbal and healthier. However, he also has special needs and will have difficulty in school. He is now in foster care. The children are close to one another. Professionals who testified at the hearing recommended termination of parental rights.
Earlier attempts to leave the children in the parents' home with supervision and guidance by a Social Services or foster care[1] with parental visitation were unsuccessful. Following Social Services involvement with the family, D.B.-1 began to receive some of the special, intensive help that he needs. D.B.-2 was also given some preschool opportunities. However, the children's attendance at the special programs while residing with their mother was not regular and Social Services had great difficulty in keeping the family's rehabilitation program on track. All efforts collapsed when a domestic dispute at the family home erupted.
The mother takes exception to the trial court's use of the "preponderance of the evidence" standard used at the adjudicatory hearing. She contends this constitutes error since dependency and neglect must be established by clear and convincing evidence in accordance with Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and People in the Interest of S.H., 323 N.W.2d 851 (1982).
The adjudicatory order determined the children dependent and neglected based on a "preponderance of the evidence" standard. The dispositional order and associated findings of fact and conclusions of law used the proper "by clear and convincing *421 evidence" standard. A "clear and convincing" standard, however, must be used at both the adjudicatory and dispositional stage. Matter of J.W.W., 334 N.W.2d 513, 516 (S.D.1983); People in the Interest of L.A., 334 N.W.2d 62, 64-66 (S.D.1983). Consequently, the court was without authority to make a dispositional order since the children had not been properly adjudicated dependent and neglected. See SDCL § 26-8-1(8). The case, therefore, is reversed and remanded for a proper adjudicatory hearing using the correct evidentiary standard.
Having reached this conclusion, the remaining issues need not be addressed.
All the Justices concur.
HERTZ, Circuit Court Judge, Acting as a Supreme Court Justice, participating.
NOTES
[1] The children were placed in foster care in Pierre for a time in 1983 when their mother was hospitalized at the Human Services Center in Yankton. The maternal grandmother and other relatives have also cared for them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585378/ | LAWRENCE ALFORD
v.
JAMES M. LEBLANC, SECRETARY AND JERRY GOODWIN, WARDEN
No. 2009 CA 0666.
Court of Appeals of Louisiana, First Circuit.
October 23, 2009.
Not Designated for Publication
LAWRENCE ALFORD, In Proper Person Plaintiff-Appellant.
WILLIAM L. KLINE, Counsel for Defendants-Appellees James M. LeBlanc, Secretary of Louisiana Department of Public Safety and Corrections, and Jerry Goodwin, Warden of David Wade Correctional Center.
Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
GUIDRY, J.
After unsuccessfully challenging a rule violation report[1] through the Corrections Administrative Remedy Procedure, Lawrence Alford, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), and housed at the David Wade Correctional Center in Homer, Louisiana, filed a petition for judicial review of his administrative challenge with the Nineteenth Judicial District Court pursuant to La. R.S. 15:1177. In a screening report submitted by a commissioner assigned by the district court to review the matter, it was recommended that Alford's petition be dismissed "with prejudice and at the petitioner's cost, for the reason that he fails to raise a substantial right violation. Furthermore, it is recommended that the petitioner be assessed a strike." This recommendation was made based on the commissioner making the following findings:
In cases such as this one, where the potential punishment only affects a custody classification or minor sanction and not eventual release, due process merely requires that the prisoner be allowed to give his version of the incident. Hewitt v. Helms, [459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)]. The petitioner fails to allege that the penalty imposed by the disciplinary board constitutes an atypical deprivation of a substantial right of the petitioner. The pleading submitted by the petitioner reflects that the petitioner was given a hearing, therefore, his punishment is not subject to review by this Court.
The district court rendered a screening judgment in conformity with the recommendation of the commissioner on January 29, 2009.
After a thorough review of the record, we find no error in the analysis or conclusions of the district court. As recognized by the commissioner in the screening report, in order for the district court to reverse or modify the decision of the DPSC, Alford had to first show how his substantial rights were prejudiced by the decision. See La. R.S. 15:1177A(9). The disciplinary sentence of a loss of 24 weeks incentive wages and a custody change to maximum extended lockdown is not unusual or a significant hardship in relation to the ordinary incidents of prison life and did not prejudice Alford's substantial rights. Thus, modification or reversal of the disciplinary action by the DPSC was not warranted under the law. See Parker v. Leblanc, 02-0399, p. 2 (La. App. 1st Cir. 2/14/03), 845 So. 2d 445, 446; Giles v. Cain, 99-1201, pp. 6-7 (La. App. 1st Cir. 6/23/00), 762 So. 2d 734, 739.
We, therefore, affirm the screening judgment of the district court and issue this summary disposition in accordance with Uniform Rules Courts of Appeal, Rule 2-16.2(A)(2), (5), and (6). Costs of this appeal are assessed to the appellant, Lawrence Alford.
AFFIRMED.
NOTES
[1] Lawrence Alford was charged with an aggravated sex offense in the rule violation report. Alford sought to have the rule violation report dismissed based on what he alleged was a conflict in the reporting employee's account of the incident and based on his contention that his conduct was not "aggravated," as implied by the charge. However, the "Disciplinary Rules and Procedures for Adult Offenders," in the section entitled "Sex Offenses, Aggravated," provides "[n]o offender shall deliberately expose the genital organs and/or masturbate in view of staff or non-incarcerated persons." LAC 22:I.363(Q)(5) (now LAC 22:I.363(V)(5) following the October 20, 2008 amendment of the "Disciplinary Rules and Procedures for Adult Offenders"). The offense with which Alford was charged falls under the cited provision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/312079/ | 480 F.2d 969
UNITED STATES of America, Plaintiff-Appellant,v.WYANDOTTE COUNTY, KANSAS et al., Defendants-Appellees.
No. 72-1633.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted March 30, 1973.Decided June 21, 1973.
James P. Turner, Washington, D. C., for plaintiff-appellant.
Nick A. Tomasic, Kansas City, Kan., for defendant-appellee Atty. Gen. for the 29th Judicial District of Kansas.
Robert J. Foster, Kansas City, Kan., for defendant-appellee Board of Commissioners of Wyandotte County.
Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and TALBOT SMITH,* Senior District Judge.
PER CURIAM.
1
This case concerns the assignment of prisoners on a racial basis to areas of incarceration in the Wyandotte County Jail, Kansas City, Kansas. The action (seeking injunctive relief) was filed by the Attorney General of the United States pursuant to Section 301(a) and (b) of Title III of the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000b(a) and (b)). It was the charge of the complaint that the Wyandotte County Jail is a "public facility" within the meaning of the Act1 and that the defendants maintained racially segregated jail facilities in violation of Title III, the Equal Protection Clause of the Fourteenth Amendment and a written contract2 containing a no-discrimination clause between the Director of the Federal Bureau of Prisons and Wyandotte County, Kansas.
2
There is no dispute concerning the essential facts. As the district court found "Assignment to one of the two tanks [an East tank and a West tank] is made upon a racial basis, with Negroes generally being assigned to the East tank, and white prisoners being assigned to the West tank."3 Nevertheless the district court entered its memorandum opinion and order, 343 F.Supp. 1189, dismissing the complaint and denying all relief requested by the United States.
3
We need not labor the point that a State may not constitutionally require segregation of public facilities, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963), and the principle is as applicable to jails as to other public facilities, Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).
4
The defense to the charges made was that the segregation employed was "not intentional or systematic segregation but was a result of and justified by a desire to protect individuals against personal abuses and violence," reliance being placed upon the statement in the concurring opinion in Lee v. Washington, supra, to the effect that "prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails."
5
We cannot construe this caveat as authorizing the consistent and settled practice of "Negroes to the East tank, whites West tank," we have before us. The use of the words "particularized circumstances" is significant, the quoted clause doing no more than recognizing the commonly accepted principle4 that in the administration of prison affairs there may arise unusual situations in which security and discipline demand segregation for limited periods.
6
The record before us, moreover, does not warrant even the limited and isolated segregation recognized as permissible in penal situations of unusual stress. The practice of segregation had had its origins in this jail "a few years back." The present Sheriff and the Undersheriff both had been told that when the races had been placed together at that time, violence had resulted because, it was said, of racial tensions. Consequently, as the Sheriff testified, "It was already segregated when I got there and I just continued to practice on the advice of some of my predecessors and the personnel that worked there."5 However, the Sheriff personally knew of no specific examples of interracial violence during his tenure, and although racial fights had occurred "once in a while," they occurred no more frequently than for other reasons. A former jailer, Mr. Govers, testified in fact that he knew of no fights engendered by racial animus. Warden Pacheco was of the opinion that they occurred "once in a while." "More frequently," he was asked, "than fights for other reasons?" "No," he replied, "I don't think so." Fighting actually seems to have occurred less frequently among inmates in the integrated areas (here the violent and problem cases) than in the segregated tanks.
7
There was some attempt at the trial to justify the segregation here imposed on the ground that the inmates of these two tanks were "hardened" criminals with such propensities to violence that segregation was necessary for the "safety of everybody concerned." The actual administration of the institution does not support the claim. The real problem makers are sent to the non-segregated northwest and northeast tanks. The balance, except for such special cases as drunks, juveniles and women, are sent to the segregated tanks, the populations of which range in years from 16, 17 and 18 through the 40's and 50's and in offense from misdemeanor, "joy rider," traffic violator, burglar, armed robber and narcotic offender to convicted murderer.6 The appellation of "hardened criminal" to such a routine mix would, without more, seem manifestly inappropriate.
8
What all of the above finally boils down to is a vague fear on the part of the authorities that desegregation may result in violence. This is not enough. The words of the Supreme Court in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963), are peculiarly appropriate to the record before us: "[N]either the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials." 373 U.S. at 536, 83 S.Ct. at 1320.
9
But beyond this, the argument that desegregation of public facilities might provoke violence has never been accepted to justify unconstitutional segregation. Over fifty years ago it was held that,
10
"It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution." Buchanan v. Warley, 245 U.S. 60 at 81, 38 S.Ct. 16 at 20, 62 L.Ed. 149.
11
The years following have seen no dilution of the principle here expressed. See, e. g., Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) (desegregation of schools); Watson v. Memphis, supra (desegregation of public parks).
12
Nor has the application of the principle been excluded from the administration of correctional institutions. See, e. g., McClelland v. Sigler, supra; Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff'd, 442 F.2d 304 (8th Cir. 1971); Wilson v. Kelley, 294 F.Supp. 1005 (N.D.Ga.1968), aff'd, 393 U.S. 266, 89 S.Ct. 477, 21 L.Ed.2d 425 (1968); Rentfrow v. Carter, 296 F.Supp. 301 (N.D.Ga.1968); Washington v. Lee, supra. Peculiarly appropriate at this point are the words of the district court in McClelland v. Sigler, supra, with respect to a similar problem.
13
"Threats of recalcitrant prisoners whose racial prejudices are erected to defy the constitutional rights of black prisoners need to be quashed. The prisoners who threaten violence, rather than those who seek their right to nondiscriminatory treatment, should be the ones to feel the weight of the consequences of their overt bigotry." 327 F.Supp. at 834.
14
The decision below is reversed and the cause remanded for further proceedings not inconsistent herewith.
*
Eastern District of Michigan, sitting by designation
1
42 U.S.C. Sec. 2000b(a) provides in part that:
"Whenever the Attorney General receives a complaint in writing signed by an individual to the effect that he is being deprived of or threatened with the loss of his right to the equal protection of the laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof . . . and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly progress of desegregation in public facilities, the Attorney General is authorized to institute for or in the name of the United States a civil action in any appropriate district court . . . against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section . . . ."
2
See 18 U.S.C. Sec. 4002
3
The general plan of "tank" assignments in the jail is based upon a number of criteria. The worst security risks, those persons believed to be prone to excessive violence, or to escape attempts, are confined in what is known as the "northwest tank" having locked cells with no "tank area." Those with somewhat lesser problems, having, for example, been guilty of misbehavior while in the general prison population, those requiring protection from others, and, generally, the "problem prisoners" are assigned to cells in the northeast tank. Minor and young offenders are assigned cells in the "boys' tank," those with illnesses in the "drunk" and "sick" tanks, and women to the "women's tank."
All of the above assignments are made without regard to race.
The balance of the routine prisoners are confined in the East and West tanks on the basis of race, whites in the West tank, Negroes in the East tank.
4
E. g., McClelland v. Sigler, 327 F.Supp. 829 (D.Neb.1971), aff'd 456 F.2d 1266 (8th Cir. 1972); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff'd 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968)
5
App. 29
6
Jail census prepared by the Warden for the Federal Bureau of Investigation, Jan. 28, 1970 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1585143/ | 508 So.2d 922 (1987)
Freddie BATISTE
v.
HOPEMAN BROTHERS, INC., et al.
No. CA-7199.
Court of Appeal of Louisiana, Fourth Circuit.
June 3, 1987.
Frank A. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellant Freddie Batiste.
Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for defendants-appellees Hopeman Bros., Inc. and Liberty Mut. Ins. Co.
Before SCHOTT, KLEES and LOBRANO, JJ.
KLEES, Judge.
This is an appeal by the plaintiff in a workmen's compensation suit, Freddie Batiste, from a judgment awarding him supplemental earnings benefits and denying his request for attorney's fees. We affirm.
Mr. Batiste was employed by the defendant, Hopeman Brothers Incorporated, as an expediter. His duties included receiving material, taking inventory of it and sending it to the place where it was to be used. On December 6, 1983, he was separating a large set of lockers when one of the lockers fell on his left leg, causing cartilage damage to his left knee. Mr. Batiste has undergone two surgeries to repair his knee and has not worked since the accident.
Hopeman Brothers Incorporated is a subcontractor for Avondale Shipyards Incorporated, and both parties agreed that Mr. Batiste was entitled to benefits under the Longshore and Harbor Worker's Compensation Act (LHWCA). After he ceased receiving benefits under LHWCA, he filed suit under the Louisiana Worker's Compensation Act to recover the maximum amount of compensation benefits for total and permanent disability. Hopeman Brothers and their worker's Compensation insurer, Liberty Mutual Insurance Company, defended this suit claiming that the plaintiff's receipt of full benefits under LHWCA constituted a binding election of remedies and he was not entitled to benefits under the state act. However, defendants concede in brief and in oral argument that they have chosen not to appeal from the district court's award of supplemental earnings benefits.
On appeal, the plaintiff argues that the trial judge erred in concluding that the defendants carried their burden of proving *923 that there was a job available to the plaintiff.
Mr. Batiste was awarded supplemental earnings benefits based on his ability to earn $4.50 per hour, due from February 17, 1985, the date plaintiffs LHWA benefits ceased. In his reasons for judgment, the trial judge stated:
I do not believe the defendant has to prove that a particular job with a particular employer awaits plaintiff's application. It is sufficient if defendant shows that generally jobs are available within the range of plaintiff's capacity.
Plaintiff urges that we be persuaded by the case of New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, (5th Cir. 1981). The Turner case held that under LHWCA, job availability should take into account the type of jobs the plaintiff is capable of doing given his age and background and whether there are jobs of this type available in the community which he could realistically and likely secure. Plaintiff claims that in order to follow this standard, a job market survey must be taken to show what jobs are open for plaintiff's application. We disagree.
Louisiana Revised Statute 23:1221(3)(c)(i) reads in pertinent part:
"... If the employee is not engaged in any employment or self-employment, ... the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, ... which he was physically able to perform... and ... which is proven available to the employee in the employee's or employer's community or reasonable geographic region."
The appellant has not worked since his accident therefore the trial court must determine what he is able to earn.
At the trial, Neal Gorman, Ph.D., an expert in vocational rehabilitation counseling testified on behalf of the defendants. Dr. Gorman testified that he evaluated Mr. Batiste taking into account his physical limitations, education and training and prior work experience. He administered an academic evaluation and a career assessment inventory to Mr. Batiste. From these evaluations and interview, Dr. Gorman found that Mr. Batiste would be well suited for "desk work" including such jobs as clerking for ordering, posting, delivery and expediting where he would not be physically involved in moving materials. Dr. Gorman stated that these jobs are in the $4.50 to $6.00 per hour range. He further testified that he could not point to a particular employer who could take Mr. Batiste's application but that there are jobs in the job market which Mr. Batiste is capable of performing.
We conclude that through the testimony of Dr. Gorman, the defendants carried their burden of proving that there are jobs available to Mr. Batiste as stated in R.S. 23:1221(3)(c)(i). Although we are not bound by the Turner case, we find that the testimony of Dr. Gorman did take into account the factors set forth in that case and proved that there are several jobs which Mr. Batiste could realistically secure. It is not necessary for a job market survey to be conducted (as appellant suggests) in order to show that jobs are open for Mr. Batiste's application.
We now turn to the issue of attorney's fees. The plaintiff argues that the defendants' conduct in denying payments to Mr. Batiste was "arbitrary and capricious", therefore he is entitled to attorney's fees under the ruling of Sherman v. Cabildo Construction Co., 490 So.2d 1386 (La. 1986) and Louisiana Revised Statute 23:1201(E).
In Sherman, our Supreme Court held that an insurer's legal attack upon the constitutionality of a statute was insufficient ground for denying compensation payments. In that case, it was found that the defendants were in bad faith. In the case at bar the defendants relied on R.S. 23:1225(D) in denying payment to the plaintiff. This statute reads in pertinent part:
No compensation or medical benefits, of whatever nature, shall be payable under this Chapter if the employee or employee's representative receives final adjudication, *924 judgment, or settlement of any claim pursuant to any federally enacted worker's compensation law, regardless of the adequacy thereof.
We find that the defendants did not act "arbitrary or capricious" in relying on this statute in denying payments to the plaintiff, and conclude that the trial judge correctly denied plaintiff's request for attorneys fees and penalties.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585168/ | 508 So.2d 782 (1987)
Randy K. CHERRY, Appellant,
v.
Catherine L. CHERRY, Appellee.
No. 86-1395.
District Court of Appeal of Florida, Fifth District.
June 25, 1987.
*783 R. Jason de Groot of Fowler, Williams & Airth, Orlando, for appellant.
C.J. Cullom, Orlando, for appellee.
SHARP, Judge.
The former husband appeals from a final order which denied the former wife's petition to modify custody of their minor child in her favor, and which granted custody of the child to Paul and Norma Cherry, the child's paternal grandparents. The grandparents are not parties to this proceeding, nor have they filed any pleadings with the court to obtain custody. Neither party alleged nor claimed the other was unfit to have custody and the trial court made no finding that either was unfit or had relinquished his or her parental rights. We reverse.
In the dissolution decree, obtained in 1984, the court awarded joint custody to the parties, with primary residence to the former husband and liberal visitation to the former wife. In June 1986, the former wife filed a petition to modify the decree by changing the child's primary residence to her residence because she alleged the former husband had secreted the child from her and denied her visitation rights. The former husband denied her allegations and opposed the change in primary residence for the child.
While the modification suit was pending, the former husband allowed his parents to have temporary custody of the child. A trial was held in July, but no record was made. The final judgment denied the former wife's petition, placed the child in the custody of the paternal grandparents, granted both parties overnight visitation privileges, and warned that if the grandfather "documents any instance of bruising which occurs during a parent's period of visitation, that parent's visitation rights will be terminated."
Appellant argues that the court was never presented with any pleadings which could have resulted in an order taking primary custody of the child away from him, and giving it to the grandparents. The court could have changed primary custody from him to the former wife, but it did not do so. We agree.
Grandparents do not have any standing to seek custody of a child in a dissolution case pursuant to Chapter 61. If they have had custody of the child, then they may be entitled to notice and an opportunity to be heard.[1] Through filing proper pleadings with the court, they may be granted custody if the child is dependent, or the parents unfit. Based on their willingness to take custody and their fitness, an order granting custody to grandparents may be proper. However, proper pleadings and joinder of the grandparents as parties are essential.[2]
Despite the lack of a record in this case, we think the appealed judgment must be reversed due to the trial judge's application of an erroneous principle of law.[3] In a custody dispute between a natural parent and another person, the rights of the parent are paramount unless there is a showing the parent is unfit, or that for some substantial reason, the parent's custody will be detrimental to the child's welfare.[4]*784 A person who is not a parent has a much heavier burden of proof to sustain a modification of custody in his favor against a parent, in contrast with a parent in a dissolution context who prevails in a custody matter over another parent.[5]
In this case, neither appellee nor appellant argue the judgment appealed from is correct. There are no pleadings, fact findings or conclusions of law which support the ruling of the trial court. However, we do note that the trial judge's order on petition for modification suggests that one or both of the parties may be guilty of child abuse to some degree. Accordingly, we reverse the judgment and remand this matter for further consideration of the evidence in light of the rule of law referenced in this opinion. Pending further ruling of the trial court, which may be made after additional pleadings are filed and additional evidence is heard, the minor child shall remain in the temporary custody of his paternal grandparents.
REVERSED AND REMANDED.
COBB, J., concurs.
DAUKSCH, J., concurs in part, dissents in part, with opinion.
DAUKSCH, Judge, concurring in part, dissenting in part with opinion.
I agree this matter should go back for further proceedings, such as proper pleading and service of process.
This record does not support the gratuitous statements made in the majority opinion regarding child abuse. There is no record in this court of any testimony and no documentary evidence. The pleadings do not allege anything about child abuse. This court should not accuse one or both of these parties of child abuse where no one alleges it and there is no record proof of it.
NOTES
[1] Ruyle v. Murphy, 422 So.2d 318 (Fla. 1st DCA 1982).
[2] Besade v. Besade, 312 So.2d 484 (Fla. 3rd DCA 1975); cf. Manning v. Varges, 413 So.2d 116 (Fla. 2d DCA 1982).
[3] Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984).
[4] Guardianship of D.A. McW., 460 So.2d 368 (Fla. 1984); Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984); Johnson v. Richardson, 434 So.2d 972 (Fla. 5th DCA 1983); Besade v. Besade, 312 So.2d 484 (Fla. 3rd DCA 1975).
[5] Alderman v. Alderman, 484 So.2d 1385 (Fla. 1st DCA 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585182/ | 508 So.2d 669 (1987)
STATE of Mississippi
v.
John C. HOFFMAN.
No. 56990.
Supreme Court of Mississippi.
June 3, 1987.
*670 Cono A. Caranna, II, Dist. Atty., Margaret Alfonso, Asst. Dist. Atty., Gulfport, for appellant.
John C. Hoffman, Gulfport, for appellee.
Before WALKER, C.J., and DAN M. LEE and PRATHER, JJ.
PRATHER, Justice, for the Court:
This appeal involves the elements of the crime of false pretenses and calls upon this Court to assess the sufficiency of criminal information formally charging John Hoffman with the commission of such a crime. This Court concludes, as did the trial judge, that the information "does not particularize the crime of false pretenses" to the degree required by law and was thus properly dismissed on defense demurrer.
I.
Hoffman (an attorney) was charged by information in 1984 for the crime of false pretenses[1] relating to an arrangement whereby he combined with Lott (general manager of Aetna Finance Company) and Rivenbark (a branch manager of Aetna) in an allegedly illicit purchase of lands owned by Aetna. Though the charge is confusing and inartfully worded, this Court finds the relevant allegations to include the following:
1. Lott and Rivenbark approached Hoffman to act as a "straw man" in purchasing lots owned by Aetna and conveying them to a third person.
2. Hoffman purchased the two lots for $2500.00.
3. To reimburse Hoffman for this expenditure, Lott and Rivenbark allowed him to submit to Aetna $2500.00 in fraudulent legal billings and caused these bills to be paid by Aetna.
4. Thereafter, Hoffman sold the lots to Rivenbark's sister for $4500.00, paying Lott and Rivenbark $800 each from the sale proceeds. Hoffman executed a warranty deed on this transaction, the deed being recorded on January 27, 1982.
5. When the loan underlying this sale to Rivenbark's sister was randomly selected for review by Aetna, Hoffman issued a certificate of title verifying that a deed of *671 trust had been recorded prior to the loan, a fact which all three men knew was false.
On these facts, Hoffman was charged "with the felonious intent to cheat and defraud Aetna ... of the sum of ... $1600.00... ." Following this charge, Hoffman demurred and moved to quash the indictment on several grounds, including the complaint that the information failed to sufficiently apprise him of the nature of the crime of which he was accused. The trial judge dismissed the charge on this ground, an action prompting the State to take this appeal. This Court doesn't examine the other bases for the demurrer but finds that the information fails to satisfy the level of specificity and clarity required by State law.
II.
Under Miss. Code Ann. § 97-19-39 (1972) and the cases interpreting this section, the crime of false pretenses occurs when one makes a false representation of a past or existing fact with the intent to deceive and with the result that the accused obtains something of value from the party deceived. State v. Lott, 507 So.2d 378 (1987); Walley v. State, 458 So.2d 734 (Miss. 1984); Young v. State, 209 So.2d 189 (Miss. 1968). Furthermore, there must be evidenced some detriment or injury to the person deceived. Gordon v. State, 458 So.2d 739 (Miss. 1984). These requirements mark the skeletal requirements of a charge of false pretenses. With the exception of the allegation that Hoffman received $2500 from Aetna on the presentation of fraudulent billing statements, it appears highly doubtful that the remaining facts would constitute false pretenses under the preceding discussion. This Court, however, affirms on a separate ground.
Apart from the question of whether a crime has been charged at all exists the determination of whether the indictment meets the mandated level of specificity and clarity. The adequacy of a formal charge in this regard is controlled by Rule 2.05, Uniform Criminal Rules of Circuit Court Practice. While this rule does not require hypertechnical detail, it nonetheless requires "a plain, concise and definite written statement of the essential facts constituting the offense charged and ... fully (notifies) the defendant of the nature and cause of the accusation against him."
As heretofore noted, "(A) defendant in a criminal case defends against an indictment, not a statute," and thus "is charged under statute only to the extent that the indictment charges acts which are unlawful under the statute." McCullum v. State, 487 So.2d 1335, 1338 (Miss. 1986). See also: Winston v. State, 479 So.2d 1093, 1094-95 (Miss. 1985), Hines v. State, 472 So.2d 386, 390 (Miss. 1985).
Whatever else may be said about the formal charge in this case, it most certainly cannot be described as plain, concise, and definite. For example, the initial portion of the charge sets forth an overall loss to Aetna of $1600, then at a later point Hoffman is accused of extracting $2500. This Court does not suggest that there exists any magical wording (beyond the essential criminal elements) for criminal indictments, but holds that the present charge fails to adequately apprise Hoffman "in fact of the nature of the charge against" him and is thus short of the "actual notice" required by Rule 2.05 and the cases interpreting it. Harden v. State, 465 So.2d 321, 324 (Miss. 1985) (emphasis in original). Accordingly, the trial judge's dismissal of this indictment is affirmed.
AFFIRMED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P. JJ., and DAN M. LEE, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.
GRIFFIN, J., not participating.
APPENDIX
IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI
FIRST JUDICIAL DISTRICT
STATE OF MISSISSIPPI
COUNTY OF HARRISON
*672 AFFIDAVIT
Now comes Cono A. Caranna, II, District Attorney in and for Harrison County, who in the name and by the authority of the State of Mississippi prosecutes for and on behalf of the State of Mississippi in his proper person, now comes into the Circuit Court for the First Judicial District of the County of Harrison, State of Mississippi, and now says under oath that he gives the Court here to understand and be informed that it is his information and belief that John Charles Hoffman did unlawfully, wilfully, feloniously and fraudulently and designedly, acting in concert with others, and for the felonious purpose of accomplishing their felonious design, as hereinafter set forth, they, the said Travis Lott and William Rivenbark did wilfully, unlawfully, feloniously and fraudulently with the felonious intent to cheat and defraud Aetna Finance Company, a Delaware corporation licensed to do business in Mississippi, hereinafter referred to as Aetna Finance, of the sum of One Thousand Six Hundred Dollars ($1,600.00) in good and lawful money of the United States of America, as will be hereinafter shown, did wilfully, unlawfully, feloniously and fraudulently and designedly conspire together and enter into a felonious common design by virtue of certain false pretenses which they knew to be false, and a certain writing which they knew to be false, all of which acts were feloniously performed between December, 1980 and May, 1982, and by virtue of their common design and felonious acts as committed by each of them as hereinafter shown, did wilfully, unlawfully and feloniously by virtue of said false pretenses cheat and defraud said Aetna Finance of the sum of One Thousand Six Hundred Dollars ($1,600.00) in good and lawful money of the United States of America, said false pretenses and acts feloniously performed by them being as follows, to-wit:
(1) that the said Travis Lott and William Rivenbark learned from their employment with Aetna Finance of certain properties owned by Aetna Finance known as Lots 63 and 64, Square 736, Shoreline Park Subdivision, Unit 11, Addition 1, Hancock County, Mississippi, said properties being in foreclosure; that thereafter, said Travis Lott and William Rivenbark set out to acquire said lands by having one John C. Hoffman, attorney for Aetna Finance, purchase said lands; that thereafter title became vested unto John C. Hoffman by virtue of a certain warranty deed executed from Aetna Finance, said deed being executed on the 2nd day of March, 1981 and recorded in Book AA46, Page 757 of the Land Deed Records of Hancock County, Mississippi, all with the felonious and fraudulent intent and understanding that once said properties were sold said Travis Lott and William Rivenbark would profit from said sale. Further, that the said Travis Lott and William Rivenbark procured and offered to said John C. Hoffman to reimburse said John C. Hoffman the purchase price of said lots, to-wit: Two Thousand Five Hundred Dollars ($2,500.00) in false and fraudulent billings for legal work not performed or inflated and that thereafter said Travis Lott and William Rivenbark caused Aetna Finance to pay said false and fraudulent billings in effect said Aetna Finance parted with such properties receiving nothing in return by virtue of the false and fraudulent billings;
(2) that thereafter said Travis Lott and William Rivenbark did procure a purchaser for said properties, one Linda L. Allen, she being the sister of the said William Rivenbark, the purchase price for said property being Four Thousand Five Hundred Dollars ($4,500.00) and in furtherance of their common design said sum was paid to said John C. Hoffman out of which sum said Travis Lott and William Rivenbark were paid by said John C. Hoffman Eight Hundred Dollars ($800.00) each in good and lawful money of the United States of America; that thereafter at the request of Travis Lott and William Rivenbark the said John C. Hoffman did, in furtherance of their common design, execute a warranty deed on the 7th day of January, 1982, selling and conveying said properties, Lots 63 and 64 as aforesaid described, said deed *673 being recorded on the 27th day of January, 1982, in the Land Deed Records of Hancock County, Mississippi, to said Linda L. Allen, and the said Travis Lott and William Rivenbark had heretofore caused a loan to be made to the said Linda L. Allen by Aetna Finance on the 30th day of December, 1981, in the net amount of Fourteen Thousand Nine Hundred One Dollars and Six Cents ($14,901.06), no deed of trust being recorded to Aetna Finance for this transaction;
(3) that, thereafter, said loan to Linda L. Allen was randomly selected for review by Aetna Finance and to conceal and justify their false and felonious acts, said Travis Lott and William Rivenbark did procure said John C. Hoffman to certify under oath and in writing a certificate of title insurance certifying a deed of trust to be executed and recorded for said loan, all of which said Travis Lott and William Rivenbark knew to be wholly false and which false pretense and false writing was done, aided and abetted by said Travis Lott and William Rivenbark,
contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
/s/Cono A. Caranna, II
CONO A. CARANNA, II.
DISTRICT ATTORNEY
NOTES
[1] See appendix attached. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585186/ | 508 So.2d 281 (1987)
Kellie Amanda WEBB (Pollock)
v.
Dallas Larry WEBB.
Civ. 5748.
Court of Civil Appeals of Alabama.
May 20, 1987.
Dave Beuoy of Burke & Beuoy, Arab, for appellant.
Jerry Guyton of Vinson, Guyton & Wood, Hamilton, for appellee.
PER CURIAM.
This is a child custody case.
Only those portions of the case history which are essential to this decision are herein summarized. The parties' divorce judgment of December 1983 incorporated therein their agreement whereby their minor child's custody was awarded to the mother. The father subsequently asked the Juvenile Court of Marion County, Alabama to declare the child dependent and to grant him custody. Temporary custody was granted ex parte to the father on January 17, 1985, the same date that the father's temporary custody petition was filed in the juvenile court. Neither a hearing nor any notice was given to the mother prior to the juvenile court's temporary custody order. After holding a subsequent full evidentiary contest, the circuit court awarded custody to the father by a final judgment dated November 26, 1986. The mother appeals.
As a general rule, a parent who has custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice and an *282 opportunity to be heard. Ex parte Williams, 474 So.2d 707 (Ala.1985). Since both of those elements were missing in the January 1985 proceeding which resulted in the ex parte award of temporary custody of the child to the father, the evidentiary burden did not shift to the mother on the final hearing but it remained with the father. He had the responsibility of reasonably satisfying the trial court by the evidence that a change in the child's custody from the mother to the father would materially promote the child's best interests and welfare. Ex parte McLendon, 455 So.2d 863 (Ala.1984). Even if the January 17, 1985 custody order was deemed to be a pendente lite award of custody to the father, as distinguished from a temporary custody order, the father still had such burden of proof. Sims v. Sims, [May 13, 1987] (Ala.Civ.App.1987).
We have carefully read and studied all of the 167 pages of testimony. Because of the vast number of cases upon the legal subject, we pretermit a summary of the evidence.
The testimony was in conflict as to almost every material and pertinent factual issue. However, there was evidence which supported a change of custody to the father. Stated differently, there was evidence to support a conclusion that a change in custody would materially promote the child's best interests and welfare. In child custody cases, the trial court has a judicial discretion to exercise and, where a custody award is made after an ore tenus trial, this court must presume that the trial court correctly applied its discretionary authority and we are not authorized to alter such a custody award unless the trial court was palpably wrong. Fowler v. Anderson, 500 So.2d 1152 (Ala.Civ.App.1986). There being adequate evidence that a change of the child's custody from the mother to the father materially promoted the child's best interests and welfare, the decision of the trial court was not palpably wrong. The trial court did not abuse its discretion in that regard.
The final judgment of the trial court is affirmed.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585205/ | STATE OF LOUISIANA
v.
ERIC G. BRISTER.
No. 2009 KA 0655
Court of Appeals of Louisiana, First Circuit.
October 23, 2009
Not Designated for Publication
WALTER P. REED, District Attorney, KATHRYN LANDRY, Special Appeals Counsel, Attorneys for State of Louisiana
FREDERICK KROENKE, Louisiana Appellate Project, Attorney for Defendant-Appellant Eric G. Brister
Before: PARRO, KUHN, and McDONALD, JJ.
PARRO, J.
The defendant, Eric G. Brister, was charged by bill of information with distribution of cocaine, a Schedule II controlled dangerous substance, in violation of LSA-R.S. 40:967(A)(1). The defendant initially pled not guilty, but later withdrew his plea and entered a plea of guilty as charged. After the state filed a multiple offender bill of information, the defendant was adjudicated a fourth or subsequent habitual offender and was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.[1] The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, assigning error as to the constitutionality of the sentence imposed. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.[2]
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the trial court erred in imposing an unconstitutionally excessive sentence. The defendant argues that he was sentenced to life imprisonment for being a drug addict. He further argues that he is not the worst offender and that his offense is not the worst type of offense that would warrant a sentence of life imprisonment. The defendant concludes that he has shown he is exceptional. He further concludes that, due to unusual circumstances, he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case, such that a downward departure from the minimum sentence prescribed under the habitual offender law is required.
Article I, Section 20 of the Louisiana Constitution explicitly prohibits excessive punishment. Although a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice or whether the sentence makes no reasonable contribution to acceptable penal goals and, therefore, is nothing more than the needless imposition of pain and suffering. See State v. Guzman, 99-1528, 99-1753 (La. 5/16/00), 769 So.2d 1158, 1167. The trial court has wide discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Loston, 03-0977 (La. App. 1st Cir. 2/23/04), 874 So.2d 197, 210, writ denied, 04-0792 (La. 9/24/04), 882 So.2d 1167.
Louisiana Code of Criminal Procedure article 894.1 sets forth items that must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Leblanc, 04-1032 (La. App. 1st Cir. 12/17/04), 897 So.2d 736, 743, writ denied, 05-0150 (La. 4/29/05), 901 So.2d 1063, cert. denied, 546 U.S. 905, 126 S.Ct. 254, 163 L.Ed.2d 231 (2005); State v. Faul, 03-1423 (La. App. 1st Cir. 2/23/04), 873 So.2d 690, 692. Failure to comply with Article 894.1 does not necessitate the invalidation of a sentence or warrant a remand for resentencing if the record clearly illumines and supports the sentencing choice. See State v. Smith, 430 So.2d 31, 46 (La. 1983).
In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the habitual offender law makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, he is duty bound to reduce the sentence to one that would not be constitutionally excessive. However, the holding in Dorthey was made only after, and in light of, express recognition by the court that the determination and definition of acts that are punishable as crimes is purely a legislative function. It is the legislature's prerogative to determine the length of the sentence imposed for crimes classified as felonies. Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional. Dorthey, 623 So.2d at 1278.
To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676. A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence that justifies rebutting the presumption of constitutionality. Johnson, 709 So.2d at 676.
Among the defendant's prior convictions are an April 12, 2004 conviction for conspiracy to distribute cocaine; three April 1, 1997 convictions for distribution of cocaine; and a November 18, 1987 conviction for possession with intent to distribute cocaine hydrochloride. Since the instant offense, distribution of cocaine, and two of the defendant's prior felonies are felonies defined as violations of the Uniform Controlled Dangerous Substances Law that are punishable by imprisonment for ten years or more, the defendant was subject to a mandatory minimum sentence of life imprisonment. LSA-R.S. 40:967(B)(4)(b); LSA-R.S. 15:529.1(A)(1)(c)(ii).
Several character witnesses testified on behalf of the defendant at the sentencing hearing. Eugene Butler began coaching the defendant in football in the seventh grade at Bogalusa High School. He noted that the defendant was an outstanding player and normal student with no problems. He asked the court for leniency. Reverend James D. Cyrus came to know the defendant when he was a child, as Reverend Cyrus pastored the defendant's father and grandmother. Reverend Cyrus noted that the defendant came from a Christian home, and he also asked for leniency and mercy. He added that he saw potential in the defendant.
Wallace Cummings, the assistant warden in the Sheriff's office, knew the defendant as a trustee. He noted that the defendant had no write-ups or any disciplinary actions when he was a trustee for approximately seven months. Lieutenant Scott Crane of the Washington Parish Drug Task Force stated that the defendant was "hustling crack for crack" and was addicted to crack himself. He was not familiar with any crimes of violence committed by the defendant. Sergeant Kendall Bullock of the Bogalusa Police Department's Drug Task Force went to school with the defendant (kindergarten through twelfth grade) and had known the defendant all of his life. He was aware of the defendant being arrested as a result of his drug addiction. He noted that the defendant was a crack user and a dealer to support his habit. He was not familiar with any crimes of violence committed by defendant.
Trudy Brister, the defendant's mother, testified that the defendant was athletic and outgoing, but that drugs took over his life. She noted that he had been through several rehabilitation programs. She further noted that the defendant had five children. She added that she was raising the defendant's daughter, whose mother is a drug user as well, and that the defendant has played a big part in her life. She asked for leniency because the defendant has a beautiful young daughter who wants to be a part of his life.
The defendant testified that be became a trustee in 2007 and that he would do managerial work. He further noted his increasing drug use and addiction. He apologized and asked for mercy. He noted that he did not make a significant amount of money, but only supported his habit.
The trial court gave due consideration to the character witnesses and the guidelines in imposing sentence. Based on the record before us, we find that the defendant has failed to show that he is exceptional or that the mandatory life imprisonment sentence is not meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Thus, we do not find that downward departure from the mandatory sentence of imprisonment for life was required in this case. The trial court did not err in denying the motion to reconsider sentence. This assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.
NOTES
[1] The minutes incorrectly assert that the trial court adjudicated the defendant a third or subsequent felony offender, while the transcript clearly reflects an adjudication as a fourth or subsequent felony offender. Where there is a discrepancy, the transcript prevails over the minute entry. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
[2] As noted, the defendant entered a guilty plea in the instant case. The facts of the offense were not developed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585223/ | 24 So.3d 797 (2010)
Robert Raymond BIGGS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D09-247.
District Court of Appeal of Florida, Second District.
January 6, 2010.
James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Robert Raymond Biggs appeals the withhold of adjudication and sentence of probation that he received on the charge of domestic battery by strangulation. This is an Anders[1] appeal, and we affirm.
On October 25, 2008, at approximately 4:00 a.m., Mr. Biggs was arrested at his *798 residence in Holiday, Florida, for false imprisonment and aggravated battery involving strangulation. According to his girlfriend, he was under the influence of a prescription drug when he struck her repeatedly in the face with his fists. He then put his hands around her neck, strangling her to the point that she had trouble breathing. Thereafter, he dragged her into the bathroom and told her not to leave the room or he would hurt her.
As a result of this arrest, he was charged with the third-degree felony of domestic battery by strangulation. See § 784.041(2)(a), Fla. Stat. (2008). He later signed a written plea form indicating that he had a college education. He pleaded guilty to the charge in exchange for a withhold of adjudication and two years' probation, including an anger management program and a substance abuse and psychological evaluation. The trial court entered the appropriate judgment and probation order to fulfill this agreement after conducting a thorough change of plea hearing on December 16, 2008. The record contains no objection of any sort or any preserved issue.
Mr. Biggs, as was his legal right, timely appealed the withhold of adjudication and order of probation. Nothing in this record, however, suggests that his public defender in the trial court could have identified any issue that could be argued in this court in good faith. The clerk of circuit court dutifully prepared a complete record, including a transcript of the plea hearing. Mr. Biggs was appointed an experienced appellate public defender who reviewed the record and found no issue worthy of briefing. Accordingly, he filed an Anders brief. Because Mr. Biggs did not choose to abandon the appeal at that time, an experienced assistant attorney general reviewed the file and also found no issue for consideration by this court. Thereafter, three judges of this court were selected to consider this case, and we too reviewed the record in search of an issue. None was located.
Mr. Biggs is merely one of many defendants who have received favorable outcomes in full accordance with their negotiated agreement with the State and then have chosen to expend the resources of this state on an appeal that has no basis in fact or law. These cases slow the review of other cases that may have merit. While the constitutional right to appeal is vital to the legitimacy of our criminal justice system, it seems unfortunate that we cannot devise methods, fair to all parties, to minimize the number of appellate proceedings that occur after defendants receive precisely the judgments and sentences that they have agreed to receive in signed, written negotiated plea agreements that were discussed and reviewed in open court at a plea hearing where the trial court conducted a proper colloquy without any objection.
Pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), a defendant who enters a guilty or nolo contendere plea and who has not specifically reserved his or her right to appeal a pre-plea ruling of the trial court may challenge on appeal solely (1) the trial court's lack of subject matter jurisdiction; (2) the violation of the plea agreement, if preserved by a motion to withdraw the plea; (3) an involuntary plea, if preserved by a motion to withdraw the plea; and (4) a sentencing error, if preserved. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(a)-(d); see also Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). Unless the trial court or the defendant's attorney explains these extreme limitations to the defendant, we are inclined to believe that the typical defendant may believe that he or she has some realistic hope of success *799 on appeal and may believe that the appeal could result in some reduction in the bargained-for sentence.
It is at least plausible that some standard language near the end of the plea colloquy, confirming with the defendant that the judgment and sentence just imposed are in full compliance with the negotiated plea agreement and then explaining that the trial court is aware of no issue that could be argued in good faith in the appellate court, might reduce the number of these unnecessary appeals.
It might also be more efficient if appeals in cases involving written negotiated pleas were not transferred to the Public Defender of the Tenth Judicial Circuit but remained the responsibility of the office of the public defender who filed the appeal. Whatever the solution, at this point, in a case like this one emanating from a circuit other than the Tenth Judicial Circuit, neither the defendant nor his or her attorney has any significant incentive to do anything other than to file a frivolous appeal of the judgment and sentence at the expense of the taxpayers and to the prejudice of other defendants with meritorious appeals who must wait in prison while we fulfill our duty reading records without legal issues.
Affirmed.
VILLANTI, J., Concurs.
WALLACE, J., Concurs in result only.
NOTES
[1] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585297/ | 815 F.Supp. 1488 (1993)
INTERSPIRO USA, INC., n.k.a. Pharos Protection USA, Inc. and Pharos Tech USA, Inc., Plaintiff,
v.
FIGGIE INTERNATIONAL, INC., Defendant.
Civ. A. No. 88-267-RRM.
United States District Court, D. Delaware.
March 16, 1993.
*1489 *1490 *1491 *1492 *1493 Jeffrey B. Bove, Connolly, Bove, Lodge and Hutz, Wilmington, DE, Mari G. Shaw, Martin J. Black, Dechert Price and Rhoads, Dale M. Heist, Albert J. Marcellino, Woodcock, Washburn and Kurtz, Philadelphia, PA, for plaintiff.
Donald F. Parsons, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, DE, Regan J. Fay, John A. Wasleff, John S. Cipolla, Jones, Day, Reavis and Pogue, Cleveland, OH, for defendant.
TABLE OF CONTENTS
FACTS
A. Invention Background 1494
B. Suit and Settlement 1497
C. Development of the E-Z Flo 1497
D. Post-Settlement Events 1499
DISCUSSION
I. Jurisdiction 1500
II. Is the E-Z Flo a "new product" not covered by the Settlement
Agreement? 1501
III. Does the E-Z Flo fall within the scope of the '145 patent? 1503
A. Literal infringement 1504
1. "means for establishing gauge pressure ..." 1505
a. movable member 1505
i. Is the pressure chamber a required means? 1505
ii. comparison of the "movable member" with the
corresponding structure in the E-Z Flo 1507
b. "biasing means" 1507
c. "means for releasing gauge pressure" 1507
*1494
2. "detent means ... for moving and maintaining [the] movable
member ..." 1508
a. detent means 1508
b. "for releasing the movable member in response to
inhalation" 1509
c. "for moving and maintaining the movable member" 1509
i. moving the movable member 1510
ii. maintaining the movable member 1511
iii. maintaining the inlet valve in a closed position 1511
iv. automatic reestablishment of gauge pressure 1511
B. Doctrine of equivalents 1512
IV. Featherweight Cylinder 1513
V. Figgie's sales to unaffiliated entities SSA's status under the Settlement
Agreement 1514
VI. The Pharos Audit 1517
A. Figgie's failure to provide the auditors with information concerning
Figgie's ownership interests in its distributors 1518
B. Figgie's failure to provide SSA's invoices 1519
C. Figgie's refusal to provide an E-Z Flo Regulator, or information
concerning it, immediately upon request 1519
VII. Attorneys' Fees 1520
OPINION
McKELVIE, District Judge.
This is a patent case. The dispute arises out of an agreement, entered into by one of the plaintiffs, Interspiro USA, Inc. ("Interspiro") (n.k.a. Pharos Protection USA, Inc.) and defendant, Figgie International, Inc. ("Figgie"), settling a patent infringement lawsuit brought by Pharos. Pharos had claimed that Figgie infringed Pharos' patents for types of breathing regulators, U.S. Patent Nos. 4,361,145 ("'145 patent") and 3,716,053 ("'053 Patent"), most commonly used in the protective masks worn by firefighters, by manufacturing and selling a regulator known as the "Donning Switch." Figgie had asserted defenses of non-infringement and invalidity of the patents.
The parties' Settlement Agreement required, inter alia, Figgie to pay royalties for sales of certain regulators, including the Donning Switch. Sometime after the Court approved the Settlement Agreement, Figgie began to manufacture and sell another regulator, the "E-Z Flo Regulator," without paying royalties pursuant to the Settlement Agreement. The plaintiffs Pharos Protection USA, Inc. and Pharos Tech USA, Inc. (collectively, "Pharos"), who had since acquired Interspiro's rights under the Settlement Agreement, now claim that Figgie's manufacture and sale of the E-Z Flo, in addition to other practices allegedly depriving Pharos of its fair share of royalties, violates the Settlement Agreement, and have moved to enforce the Settlement Agreement. Docket Item ("D.I.") 91. Pharos' claims relate only to the '145 patent, as the '053 had expired prior to the events culminating in Pharos' motion. Pharos seeks damages for Figgie's breaches as well as attorneys' fees arising from Figgie's "bad faith."
From May 19, 1992, to May 21, 1992, the Court held a hearing on Pharos' motion. D.I.s 219-221. This is the Court's decision on the Motion to Enforce the Settlement Agreement.
FACTS
A. Invention Background
Because firefighters work in highly dangerous environments, they use and carry a panoply of safety equipment. Among the most important is the Self Contained Breathing Apparatus (SCBA), a breathing device which protects firefighters from toxic fumes and supplies them with oxygen. SCBAs basically consist of a mask, an oxygen tank, and a regulator. The regulator, which is attached to the mask, is, essentially, a sophisticated valve. It allows a firefighter to inhale *1495 oxygen from the tank and also to exhale waste gases, and therefore is somewhat similar to the regulators SCUBA (an acronym for self-contained underwater breathing apparatus) divers use to obtain oxygen.
When the regulator valve opens to allow oxygen to enter the mask from a pressurized tank (the resulting rush of air is called "free flow"), the inside of the mask becomes temporarily pressurized. A pressurized mask is said to have "positive pressure" (also known as "gauge pressure" or "safety pressure"). Because at positive pressure the air pressure is greater inside the mask than outside, air from outside cannot flow into the mask. Conversely, when a mask does not maintain positive pressure, ambient air is free to leak into the mask, perhaps through leaks, cracks or gaps. Positive pressure inside the mask thus protects a firefighter from the dangerous fumes common in the firefighter's working environment.
The first SCBAs were equipped with regulators and masks which did not continuously maintain positive pressure inside of the mask. Instead, they maintained positive pressure only when the wearer inhaled and the regulator allowed pressurized oxygen to enter the mask; any increase in pressure was temporary. When the wearer was not inhaling (or exhaling), the inside of the mask was not pressurized, and the wearer was exposed to airborne toxins.
In 1971, Interspiro introduced its first SCBAs which could continuously maintain positive pressure. Interspiro patented at least one such device in 1973. Others received patents for SCBAs that maintained continuous positive pressure; for example, Dragerwerk AG received a German patent for such a device ("Drager Patent") in 1977. In such "positive pressure" masks, oxygen flows continuously into the mask, except during a brief period of exhalation. Positive pressure is nevertheless always maintained in the mask, as during exhalation it is the user's lungs, rather than the oxygen tank, that pressurizes the mask by forcing air into it.
While the introduction of continuous positive pressure was an important safety advance, a significant problem remained. Many of the positive pressure masks required that the positive pressure feature be turned on manually. Consequently, in stressful situations, a firefighter could forget to activate the positive pressure feature. Thinking positive pressure to have been established in the mask, the firefighter could unfortunately enter an environment where he might be susceptible to colorless, tasteless, and perhaps deadly fumes leaking into his mask.
In 1980 or earlier, two inventors, Ekstrom and Wettengren, found a solution to the problem. They designed a regulator that allowed the SCBA to supply positive pressure automatically upon the wearer's initial inhalation after putting on the mask. Turning off positive pressure necessary to conserve the oxygen when the SCBA is not in use remained a manual operation (pressing a button on the regulator). The automatic-on/manual-off function was made possible by employing a "detent mechanism" which will be described in detail below in the regulator. A user's initial inhalation would overcome the force holding the detent, and hence the regulator, in the off mode. The masks would then have positive pressure. Only by pressing a switch could the detent be restored to a position in which it would hold the regulator in the off position. A schematic of the invention appears below:
*1496
Roughly, the regulator works as follows: As the wearer breathes in and out, the resulting changes in air pressure inside the housing of the regulator force what is essentially a diaphragm to move back and forth. On the drawing above, that diaphragm consists basically of items (7), (12), and (13); items (12) and (13) are rubber discs which are attached at their circumferences to the housing by a ring of flexible material (7) which allows the discs to move within the housing. In this diagram, exhalation would tend to push the discs toward the exhalation chamber (4) at the top of the drawing; inhalation would tend to pull the discs toward the inhalation or inlet chamber (6) at the bottom of the drawing. Additionally, the movement of the diaphragm toward the top of the housing is resisted by a biasing spring (19), which is attached to the top of the diaphragm at one end and to the housing at the other end. When the user finishes exhalation, the biasing spring pushes the diaphragm back toward the bottom of the housing.
The diaphragm is attached to a valve (11) by a controlling arm (28). As the user exhales the diaphragm moves up, thereby pulling on the valve through the controlling arm. At a certain point the valve is pulled closed, and no oxygen enters the mask. Conversely, as the user inhales (through the inhalation port (9)) and the diaphragm is pulled down, the controlling arm eventually forces the valve to open, thus allowing oxygen once more to enter the mask. The valve is maintained in the open position except when the user exhales and when the regulator is placed in the shut-off mode, described below. In that way the regulator ensures continuous positive pressure when the SCBA is in use.
The detent mechanism (31) can be used to shut off the regulator such that it becomes locked in the shut-off mode. When manually activated, the detent arm swings up (note the dashed outline on the diagram) and locks the *1497 diaphragm in a position toward the top of the regulator, against the force of the biasing spring. So locked, the diaphragm maintains the valve in a closed position. Upon a user's first inhalation, however, the diaphragm is pulled down with sufficient force so as to cause the detent to snap back into its unlocked position, thus allowing air to flow into the mask and allowing the diaphragm to move freely back and forth until the user next activates the detent.
Significantly, unlike the device described in the Drager Patent, which could be operated without the positive pressure feature, the Ekstrom and Wettengren device could be operated only in a positive pressure mode. While the Drager Patent also had an automatic-on/manual-off feature, a user could replace the mask and breathe without activation of the positive pressure feature. In 1980, Ekstrom and Wettengren obtained the '145 patent for their invention. The National Fire Protection Association, which sets standards for firefighting equipment, now requires that all breathing masks operate only with the positive pressure feature.
B. Suit and Settlement
Defendant Figgie is a Delaware corporation. Scott Aviation, a Buffalo, New York, division of Figgie, manufactures and sells SCBAs. Safety Supply America ("SSA"), a subsidiary of Figgie, distributes Scott Aviation products, including SCBAs.
In 1985, Figgie sold SCBAs with regulators which automatically switched the positive pressure feature on and off. The automatic shut-off feature on the Figgie regulator occasionally caused, however, premature shut-off of positive pressure. Moreover, the regulator was most likely to malfunction during periods of peak exertion by the user. As a result, some users of Figgie's regulators complained of incidents of premature shutoff. In response, on April 19, 1985, Figgie warned its users about the problem, and offered to retrofit each user's SCBA with a new regulator, the Donning Switch regulator.
The Donning Switch regulator, like the design in the '145 patent, had automatic-on/manual-off regulation of positive pressure. Figgie consequently began to manufacture, sell, and retrofit old masks with the Donning Switch regulator. Mr. Hans Almqvist, then President of Interspiro, obtained a Donning Switch regulator, examined it, and contacted patent counsel, who advised him that the Donning Switch regulator infringed the '145 patent. Interspiro sent a notice of infringement to Figgie.
At first, attempts to settle the dispute failed, and on May 19, 1988 Interspiro filed this action in this Court against Figgie. Figgie asserted defenses of invalidity and non-infringement. Regarding the non-infringement portion of its defense, Figgie argued that the Donning Switch lacked a "pressure chamber" (in the regulator) and that a pressure chamber was a requirement of the '145 patent. Pharos countered that the Patent Examiner had specifically removed any reference in the patent to a pressure chamber.
Following substantial and lengthy negotiations, the parties ultimately reached a settlement. The ensuing Settlement Agreement contained provisions for Figgie to pay royalties to Interspiro on the sale of each SCBA containing a Donning Switch and provisions allowing Interspiro to audit Figgie to ensure compliance with the Agreement. It also provided that the Court would retain jurisdiction over the Settlement Agreement for a period of two years. The parties submitted the Settlement Agreement to the Court with a Proposed Stipulated Order dismissing the case pursuant to the terms of the Agreement. On November 13, 1989, the Court signed and entered the Stipulated Order. D.I. 83.
C. Development of E-Z Flo
Before the suit was filed and while the Interspiro/Figgie dispute was in its initial stages, Figgie, through its Scott Aviation division, considered alternatives to the Donning Switch. In 1987, Robert Richter, then Scott Aviation's Vice President of Engineering, prepared a document to evaluate design concepts for avoiding Interspiro's infringement allegation. PX-10. His report, entitled "Engineering Cost," suggested two possible approaches: a "new design approach" and a "circumvent design approach." The "new design approach" involved the creation of a totally new regulator design. It would cost more than the "circumvent approach," *1498 but would have little or no danger of infringing the '145 patent. The "circumvent approach," riskier (in terms of potential infringement) but requiring less capital investment, would involve designing around the patent claims. Mr. Richter further described four efforts Figgie had already initiated to circumvent the patent. The second of these described an automatic-on/manual-off regulator, whose circumvention of the '145 patent was "unknown." It would avoid infringement by relocating an important mechanism described in the '145 patent, the detent mechanism, from one side of a diaphragm that moves back and forth within all regulators, to the other.
Scott Aviation never officially adopted either approach; nevertheless, it began to design an ostensibly new regulator based largely, if not entirely, on the concepts utilized in the Donning Switch. The resulting product, the E-Z Flo Regulator, would have exactly those features described by the second of the "circumvent approach" efforts.
In mid-May, 1988, after Interspiro already had approached Scott Aviation about infringement of the Donning Switch, Scott Aviation fired Mr. Richter. In December, 1988, Mr. Alan H. Light, then President of Scott Aviation, Mr. Eugene Giorgini, Engineering Manager of Scott's Health and Safety Division, and Mr. Edward Replogle, an engineer with "quite a bit of patent experience" who was hired by Scott Aviation as a consultant, met to discuss design options for eliminating the infringement problem. Mr. Replogle proposed saving as much of the existing product as possible, but did not then propose a specific plan.
Mr. Replogle subsequently began design work. First, he tried to use a "magnetic detent"; however, this design approach was abandoned. Then he tried using a "spring detent," had that concept reviewed by patent counsel, and drew up an initial proposal. The "spring detent" would operate on a different side of the diaphragm than the detent in the Donning Switch and '145 patent. In initial sketches dated December 30, 1988, Mr. Replogle used the label "spring detent." Subsequent sketches by Mr. Giorgini, however, had labelled the same device a "latching lever." Scott Aviation developed its device with a "latching lever" into the E-Z Flo Regulator. A schematic of the E-Z Flo Regulator, here drawn in the "static" mode the mode in which the regulator is in during normal use appears below:
*1499 The E-Z Flo is depicted above such that a user would inhale from the bottom of the regulator and force exhaled gases through the top.
Just as in the '145 device, in the E-Z Flo the action of a diaphragm opens and closes the regulator valve at appropriate times. In the E-Z Flo, the "diaphragm" composed of two discs, the smaller one ordinarily resting just below the larger disc, which is attached to the housing by a ring of flexible material impinges on the "diaphragm lever," which in turn opens or closes the "demand valve." The E-Z Flo also has a biasing spring, here labeled a "compression spring," that resists the movement of the diaphragm as it moves toward the top of the housing, and pushes the diaphragm back toward the bottom of the housing following exhalation.
The E-Z Flo accomplishes shut-off by means of a "latching lever." When manually operated, the latching lever rotates toward the top of the housing, thereby compressing the biasing spring such that it cannot push against the diaphragm. When latched, the force of the biasing spring is completely removed, such that all of the forces acting on the diaphragm push it upward, maintaining the regulator in the shut-off mode. Inhalation pulls the diaphragm downward with sufficient force to overcome the latch, allowing the diaphragm to move again, and thereby establishes positive pressure.
As discussed below, Figgie highlights two major differences between the '145 device and the E-Z Flo. These differences generally relate to the structures of the two devices' diaphragms and to the structure and operation of the "detent means" of the '145 device as compared to the "latching lever" of the E-Z Flo.
D. Post-Settlement Events
At a trade show in Las Vegas in October, 1990 just prior to settlement Figgie introduced what it hailed as a new product, the E-Z Flo Regulator. Mr. Almqvist, President of Interspiro, saw the E-Z Flo and inquired whether it had been designed around the '145 patent. Mr. Giorgini of Scott Aviation informed Mr. Almqvist that he assumed the invention would avoid the claims of the '145 patent. Sometime in the fall of 1990, Figgie, through Scott Aviation, began selling the E-Z Flo Regulator. Mr. Almqvist attempted to obtain an E-Z Flo, but was unsuccessful.
In May, 1991, Interspiro conveyed all of its rights in the '145 patent, with the exception of those rights invested by the Settlement Agreement to Comasec, Inc., not a party to this suit. Interspiro subsequently changed its name to Pharos Protection USA, Inc. Also in May, 1991, Mr. Almqvist left the employ of Interspiro.
Sometime in 1991, Pharos began to suspect that Figgie was not making all payments as required by the Settlement Agreement; specifically, Pharos believed that Figgie was reporting a low "Weighted Average Sales Price," which serves as a basis for calculating royalty payments. On August 15, 1991, Mr. John Carney, President of Pharos, notified Figgie of Pharos' intention to exercise its right under the Settlement Agreement to conduct an audit of Scott.
During the audit in August or September, 1991, Pharos learned that Figgie had not paid royalties for sales of the E-Z Flo Regulator. It further discovered that in calculating the "Weighted Average Net Sales Price" of SCBAs (also a basis for royalty payments), Figgie had not included the price of an oxygen tank called the "Featherweight Cylinder"; instead, SCBAs sold with a Featherweight Cylinder were priced as if the SCBA had incorporated only a "Basic Cylinder."
The audit, however, was not completed. Mr. Nicholas Koppmann, Vice President and Controller of Scott Aviation, refused to supply the auditors with information concerning Scott Aviation's relationship with its distributors. Figgie also refused to verify which entities were Figgie affiliates or provide sales reports and invoices from its subsidiary, SSA, to SSA's customers, as well as other documents relating to the sales of E-Z Flo regulators. Finally, Figgie refused to supply an E-Z Flo regulator both to the auditor and to Mr. Carney.
Figgie contended that it did not have much of the information requested and also that it did not have sufficient control over Scott Aviation affiliates to obtain the information. *1500 Figgie further argued that invoices from SSA to its customers were not relevant to calculating royalties under the Settlement Agreement. When the auditors suggested a mass mailing to the distributors for the purpose of determining Figgie's equity share in each, Figgie refused to comply, claiming that the mailing would violate the confidentiality of the Agreement. Finally, Scott Aviation, through Mr. Koppmann, claimed that it could not provide an E-Z Flo Regulator because it did not have one on the premises; as a result, Mr. Koppmann recommended purchase from a Scott Aviation distributor. Mr. Koppmann did tell Pharos, though, that he would provide Pharos with an E-Z Flo if Pharos would first provide Figgie with an opinion on infringement.
On August 29, 1991, Pharos' counsel ordered an E-Z Flo Regulator from a distributor, which was received September 12, 1991.
On October 16, 1991, Pharos moved in this Court to enforce the settlement agreement. The major issues raised by this motion are: 1) Does this Court have jurisdiction to enforce the Settlement Agreement? 2) Is the E-Z Flo a "new product" and thus not covered by the royalty provisions of the Settlement Agreement? 3) Assuming the E-Z Flo Regulator is a payment bearing regulator and not a new product if it falls within the scope of the '145 patent, does the E-Z Flo Regulator fall within the scope of that patent? 4) By replacing the price of Featherweight Cylinders with the price of Basic Cylinders did Figgie properly calculate the Weighted Average Sales Price for the purposes of calculating royalties? 5) Did Figgie act properly by paying royalties on sales from Figgie to SSA rather than paying royalties on sales from its subsidiary SSA to enduser customers? 6) Did Figgie properly comply with the 1991 audit? 7) Did Figgie fail to act in "good-faith" to comply with settlement agreement, thus requiring an award of attorneys' fees to Pharos?
DISCUSSION
I. Jurisdiction
Courts may retain jurisdiction to enforce settlement agreements in cases that were once properly before them. Halderman v. Pennhurst State School and Hospital, 901 F.2d 311, 317 (3d Cir.), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990) (quoting McCall-Bey v. Franzen, 777 F.2d 1178, 1188 (7th Cir.1985)). Furthermore, by incorporating a settlement into an order of dismissal, a court may retain such jurisdiction. Id.; Washington Hospital v. White, 889 F.2d 1294, 1298-99 (3d Cir.1989) (stipulated order). Courts need not explicitly indicate a desire to retain jurisdiction:
[Although] we have rejected the suggestion that federal judges have inherent power to enforce settlement agreements arising out of lawsuits that were once before them[,] ... we have expressed no doubt of the power of a district court to dismiss a lawsuit conditionally, retaining jurisdiction to effectuate terms of settlement agreed to by the parties. Nor do we think there is any magic form of words that the judge must intone in order to make the retention of jurisdiction effective. All that is necessary is that it be possible to infer that he did intend to retain jurisdiction that he did not dismiss the case outright, thereby relinquishing jurisdiction.
Halderman, 901 F.2d at 317 (quoting McCall-Bey, 777 F.2d at 1188) (brackets as they appear in Halderman).
In this case, the Court signed a Stipulated Order incorporating the Settlement Agreement, ¶ 13 of which in turn allowed the Court to retain jurisdiction over the Settlement Agreement for a period of two years. Figgie argues that the Court's action does not manifest an explicit intent to retain jurisdiction; consequently, the Court may assert jurisdiction only through its inherent power, which it argues the Court also lacks on the facts of this case.
Figgie misreads Halderman, which does not require courts to use explicit language in order to retain jurisdiction over settlements. Nevertheless, the Settlement Agreement, which was incorporated in the Order of Dismissal, does explicitly manifest an intent that the Court should retain jurisdiction over its enforcement. As in Halderman, White, and McCall-Bey, therefore, it is possible and apparently peremptory in this case to infer from the Order of Dismissal that the Court intended to retain jurisdiction over the Settlement Agreement.
*1501 Furthermore, the Settlement Agreement is enforceable by motion; a party with a grievance need not file a new complaint. Hobbs & Co., Inc. v. American Investors Management, 576 F.2d 29, 34-35 (3d Cir. 1978). Figgie argues that because a Motion to Enforce precludes Figgie from asserting certain defenses enumerated and preserved in ¶ 13 of the Settlement Agreement, a Motion to Enforce is improper. The Court has already ruled, however, that ¶ 13 preserves defenses concerning those disputes that do not arise from the Settlement Agreement and that Figgie consequently has waived those defenses for the purposes of this motion. Tr. of April 28, 1992, D.I. 191, at 6, 13. Putting aside the issue of which defenses are available to Figgie, Figgie does not appear to contest the notion that the Settlement Agreement may be enforced by motion.
II. Is the E-Z Flo a "new product" not covered by the Settlement Agreement?
The first and major substantive issue in this case is whether the E-Z Flo Regulator is covered by the terms of the Settlement Agreement. The Settlement Agreement does not specifically mention or name any regulator, including the Donning Switch, which is conceded to fall within the ambit of the Agreement. It clearly specifies, however, that "new products" are not covered: "[T]he parties do not waive any rights or claims that may arise with regard to any new product which Scott [Aviation] may develop or any defenses (including non-infringement and invalidity ...) the parties may otherwise have to such a claim." Settlement Agreement Paragraph 13, PX-1.
Pharos argues that a product is "new" within the meaning of ¶ 13 only if it falls outside the scope of the '145 patent. Consequently, Pharos further argues that the E-Z Flo Regulator falls within the scope of the '145 patent and is therefore not a new product excluded from the royalty provisions of the agreement. Figgie contends, on the other hand, that a new product "is a product that Scott [Aviation] has developed that has never been on the market before execution of the Settlement Agreement and which is different from the Donning Switch." Defendant's Post-Trial Brief, D.I. 225, at 57. A new product, therefore, might or might not infringe the '145 patent. Correspondingly, Figgie argues, because the E-Z Flo is different from the Donning Switch and was not on the market before the execution of the Settlement Agreement, it is a "new product." The Court first determines the meaning of the term "new product" and then turns, in Part III, to the question whether the E-Z Flo is, in fact, a new product.
Paragraph 14 of the Settlement Agreement provides that the Settlement Agreement should be "interpreted and construed under the internal substantive laws of the State of New York." The parties do not dispute that New York substantive law controls issues of contract interpretation in this case.
Under New York law, "[a] settlement agreement must be interpreted as any other contract." Olympic Tower Assoc. v. City of New York, 183 A.D.2d 406, 583 N.Y.S.2d 263, 264 (1992); Rainbow v. Swisher, 72 N.Y.2d 106, 531 N.Y.S.2d 775, 776, 527 N.E.2d 258, 259 (1988). Courts should generally give effect to the expressed intentions of the parties in entering into the agreements. Care Travel Co. v. Pan American World Airways, 944 F.2d 983, 987 (2d Cir.1991); Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 897-98, 305 N.E.2d 907, 909 (1973).
Courts should first look to the language of the agreement to determine intent. Hartford, 350 N.Y.S.2d at 898-99, 305 N.E.2d at 910. In this initial inquiry courts must determine whether the language of the agreement is unambiguous on its face. "Contract language is unambiguous if it has a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion." Metropolitan Life Insurance Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990) (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280, 1283 (1978)) (brackets as they appeared in Metropolitan Life); Care Travel, 944 F.2d at 988 (Agreement *1502 is unambiguous when it is capable of one meaning when viewed by "a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology generally understood in the particular trade or business.") (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968)). Contract language is not ambiguous merely because the parties attribute to it differing interpretations; nor is it ambiguous where one party urges an interpretation that strains the language beyond its ordinary meaning. Id. (quoting Bethlehem Steel Co. v. Turner Construction Co., 2 N.Y.2d 456, 161 N.Y.S.2d 90, 93, 141 N.E.2d 590, 593 (1957)). If the language of an agreement is unambiguous on its face, the parties' rights under the agreement should be determined solely by the terms in the agreement. Care Travel, 944 F.2d at 987-88 (quoting Metropolitan Life, 906 F.2d at 889). Evidence concerning the commercial environment giving context to the agreement may be used to ascertain the parties' intent, however, even if the language of the contract is unambiguous. Chase Manhattan Bank v. First Marion Bank, 437 F.2d 1040, 1046 (5th Cir.1971); In re Rudolph's Will, 123 N.Y.S.2d 731, 733-34 (Supr.Ct.1953). If the agreement is ambiguous on its face, courts may ascertain its meaning with the aid of parol evidence. Care Travel, 944 F.2d at 988.
The term "new product" is not defined in the Settlement Agreement. Its meaning on its face or in the context of the Settlement Agreement is not self-evident. Figgie's contention that the plain meaning of the term is "a product that [was not] on the market before execution of the Settlement Agreement and which is different from the Donning Switch[,]" D.I. 225, at 57, only begs the question: What is different from the Donning Switch?
Additionally, each party's interpretation makes sense in light of other terms in the contract. Pharos highlights, for example, ¶ 1(a) of the agreement, which provides: "`Regulator' means a regulator valve, which, when combined with a mask would fall within the scope [of the '145 patent]." Accordingly, as royalties are calculated from sales of "Regulators" (see ¶ 3), Pharos argues that a payment-bearing regulator which could not logically be a new product is one that falls within the scope of the '145 patent.
In contrast, Figgie contends that ¶ 13 and ¶ 1(a) should be read conjunctively, such that payment-bearing regulators: 1) cannot be a "new product" under ¶ 13; and, 2) must be a "regulator" under ¶ 1(a). In other words, not all "regulators" are payment-bearing regulators; some "regulators" are "new products." Furthermore, Figgie points out that if a "new product" must be non-infringing, then ¶ 13 makes no sense why would the parties preserve defenses of non-infringement and invalidity only for products that do not infringe? Under the plaintiff's interpretation of "new product," Figgie argues, the Settlement Agreement forecloses all litigation over the '145 patent either a product would or would not be a "regulator" for the purposes of the Settlement Agreement and renders ¶ 13, which appears to relate to future litigation concerning the '145 patent, superfluous.
Both Pharos' and Figgie's interpretations are plausible viewed in light of the entire Settlement Agreement. Thus, the meaning of the term "new product" is ambiguous in the context of the Settlement Agreement, and the court will look in part to extrinsic evidence in determining its meaning.
The Court finds that a "new product" is one that does not fall within the scope of the '145 patent. In so doing, the Court relies primarily on three factors. First, the Court believes that by defining a "regulator" as a device falling within the scope of the '145 patent, the parties appear to have manifested a strong intent that the scope of the patent should define the coverage of the Settlement Agreement's royalty provisions and indeed the scope of Settlement Agreement itself. Had the parties not intended to settle all litigation relating to the '145 patent, the parties likely would have limited the definition of "regulator" to include only the exact regulator depicted in the '145 patent and the Donning Switch.
Second, both Mr. Almqvist, Interspiro's former President, and Mr. Nicholas *1503 Koppmann, Scott Aviation's Vice President and Controller, testified that a "new product" is one that falls within the scope of the '145 patent. While Mr. Koppmann later changed his testimony, the Court credits his initial testimony as well as the testimony of Mr. Almqvist. Finally, acceptance of Pharos' interpretation of "new product" does not render ¶ 13 superfluous. Paragraph 13 merely states the obvious: that the settlement would not affect litigation regarding any products not falling under the scope of the '145 patent. In sum, as it appears that the parties intended to settle all claims relating to products falling within the scope of the '145 patent and not just claims regarding the Donning Switch, the Court next must determine whether the E-Z Flo falls within the scope of the '145 patent.
In determining whether the E-Z Flo falls within the scope of the '145 patent and consequently is or is not a "new product," the Court need not address Figgie's arguments that the patent is invalid and unenforceable. First, the Court concludes that in signing the Settlement Agreement, Figgie waived its right to challenge the validity and enforceability of the patent with respect to issues arising under the Settlement Agreement in return for Pharos' waiver of the right to ask for treble damages for infringement. The Settlement Agreement effectively would be meaningless absent such a quid pro quo. Analogously, the Federal Circuit has held that in contempt proceedings, whether a new product infringes (thus giving rise to a finding of contempt) may not be challenged on the basis of invalidity of the patent. KSM Fastening Systems, Inc. v. H.A. Jones Company, Inc., 776 F.2d 1522, 1529 (Fed.Cir. 1985). In that spirit, Figgie admits that if the E-Z Flo is not a "new product," then it has indeed waived the invalidity and unenforceability defenses. See Defendant's Post-Trial Brief, D.I. 225, at 55. Based on the Court's ultimate conclusion that the E-Z Flo is not a "new product," therefore, Figgie has waived its invalidity and unenforceability defenses with respect to this case.
III. Does the E-Z Flo fall within the scope of the '145 patent?
If the E-Z Flo Regulator falls within the scope of the '145 patent it is not a "new product" and is therefore a payment-bearing regulator under the Settlement Agreement. Claim 1 of the '145 patent (the only claim asserted) claims:
A respirator mask comprising:
a housing including an exhalation chamber having an exhaust outlet, and an inlet chamber forming a breathing space and having passage means adapted to communicate with a user's respiratory organs; a normally closed inlet valve connected to said inlet changer for supplying a source of breathing air to the inlet chamber to provide pressure therein; means for establishing a gauge pressure in said inlet chamber including a movable member mounted in said housing and separating said inlet chamber from said movable member toward said inlet chamber, means operatively associated with said movable member for actuating said inlet valve to supply pressure to said inlet chamber when said movable member is moved into said inlet chamber and for releasing pressure from said inlet chamber to said exhaust outlet when said movable member is moved into said exhalation chamber a predetermined distance wherein a gauge pressure is established and released in said inlet chamber in response to movement of said movable member; and detent means mounted in said housing for moving and maintaining said movable member toward said exhalation chamber against said biasing means whereby said inlet valve means is maintained in its closed position, said detent means including means for releasing said movable member in response to a user's inhalation effort in said inlet chamber whereby said inlet valve opens and said gauge pressure is reestablished.
The Court's inquiry must proceed in two steps. First, the Court must determine the scope of the claims at issue. Autogiro Co. of America v. U.S., 384 F.2d 391, 401, 181 Ct.Cl. 55 (1967). The construction of the claims and their scope is a question of law. Senmed, Inc. v. Richard-Allan Medical Industries, Inc., 888 F.2d 815 (Fed. Cir.1989). Nonetheless, the meaning of *1504 claim language may turn on underlying issues of fact. Perini Am., Inc. v. Paper Converting Mach. Co., 832 F.2d 581, 584 (Fed.Cir.1987). An issue of fact as to the meaning of a term exists where there is a genuine evidentiary conflict over the term's meaning. Johnston v. IVAC Corp., 885 F.2d 1574, 1579 (Fed.Cir.1989). Claim language should be interpreted as one reasonably skilled in the art would have interpreted the claim at the time of the invention. Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 867 (Fed.Cir.1985); Mobil Oil Corp. v. Amoco Chemicals Corp., 779 F.Supp. 1429, 1442 (D.Del.1991).
Once the Court determines the scope of the claims, it must determine whether the accused product infringes them. Palumbo v. Don-Joy Co., 762 F.2d 969, 974 (Fed.Cir.1985). The claims may read on the accused product either literally or under the doctrine of equivalents. If the accused product does not literally infringe, infringement under the doctrine of equivalents may nevertheless occur if the accused product performs substantially the same function, in the same manner, to obtain substantially the same result as the claimed invention. Graver Tank & Manufacturing Co., Inc. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950). Infringement is a question of fact. Palumbo, 762 F.2d at 974; Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 936 (Fed.Cir.1987) (in banc).
A. Literal infringement
Claim 1 of the '145 patent contains "means plus function" language. The claim describes, for example, a "detent" (means) "for moving and maintaining said movable member...." (function). Interpretation of claims with means plus function language is governed by 35 U.S.C. § 112, paragraph 6:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material or acts described in the specification and equivalents thereof.
Thus, "to meet a means-plus-function limitation literally, an accused device must (1) perform the identical function claimed for the means element, and (2) perform that function using the structure disclosed in the specification or an equivalent structure." Intel Corp. v. United States International Trade Commission, 946 F.2d 821, 841 (Fed.Cir.1991). Equivalence under § 112, paragraph 6 is different from equivalence under the doctrine of equivalents:
[T]he word "equivalent" in § 112 should not be confused ... with the "doctrine of equivalents." In applying the doctrine of equivalents, the fact finder must determine the range of equivalents to which the claimed invention is entitled, in light of the prosecution history, the pioneer-nonpioneer status of the invention, and the prior art. It must then be determined whether the entirety of the accused device or process is so "substantially the same thing, used in substantially the same way, to achieve substantially the same result" as to fall within the range. [Graver Tank, 339 U.S. at 610, 70 S.Ct. at 857.] In applying the "means plus function" paragraph of § 112, however, the sole question is whether the single means in the accused device which performs the function stated in the claim is the same as or an equivalent of the corresponding structure described in the patentee's specification as performing that function.
D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1575 (Fed.Cir.1985). Section 112 is not designed, however, to expand the coverage of means-plus-function language, but rather to restrict its coverage to truly identical means and functions. See Valmont Industries, Inc. v. Reinke Manufacturing Co., 983 F.2d 1039, 1042 (Fed.Cir.1993) ("Section 112 permits means-plus-function language in a combination claim, but with a "string attached." The "attached string" limits the applicant to the structure, material, or acts disclosed in the specification and their equivalents. Indeed, the section operates more like the reverse doctrine of equivalents because it restricts the coverage of literal claim language.... In sum, for a means-plus-function limitation to read on an accused device, the accused device must employ means identical to or the *1505 equivalent of the structures, material or acts described in the patent specification. The accused device must also perform the identical function as specified in the claims.")
Prior art need not be considered in applying section 112, paragraph 6; correspondingly, a means-plus-function claim should not be limited by prior art. Intel, 946 F.2d at 842. Nevertheless, in construing a means plus function claim courts may consider the same interpretive aids they would consider in construing ordinary claims; those aids include the language of the claim(s), the specification, the prosecution history, other claims in the patent, and expert testimony on how those skilled in the art would interpret the claims. Id. at 843; Palumbo, 762 F.2d at 975; see also Loctite Corp. v. Ultraseal, 781 F.2d 861, 867 (Fed.Cir.1985).
There are two means plus function clauses in Claim 1 at issue: 1) "means for establishing a gauge pressure ..."; and, 2) "detent means ... for moving and maintaining [the] movable member...." In the former case, only the means is disputed. In the latter case, both means and function are at issue; however, the function issue is paramount.
1. "means for establishing gauge pressure ..."
Claim 1 of the '145 patent claims a means for establishing positive pressure, including several component means:
means for establishing a gauge pressure in said inlet chamber including a movable member mounted in said housing and separating said inlet chamber from said movable member toward said inlet chamber, means operatively associated with said movable member for actuating said inlet valve to supply pressure to said inlet chamber when said movable member is moved into said inlet chamber and for releasing pressure from said inlet chamber to said exhaust outlet when said movable member is moved into said exhalation chamber a predetermined distance wherein a gauge pressure is established and released in said inlet chamber in response to movement of said movable member....
Three of the component means claimed give rise to § 112, paragraph 6 issues in this case. These means are the movable member, the biasing means, and the means for releasing gauge pressure.
a. movable member
According to claim 1, the means for establishing positive pressure includes a "movable member." In the patent specification, the movable member includes a "pressure chamber." In this section, the Court initially considers whether the pressure chamber is a required means, i.e., whether the movable member must be a pressure chamber, and then considers whether the resulting claimed means, the movable member, is equivalent to the corresponding means in the E-Z Flo.
i. Is the pressure chamber a required means?
On the drawing of the '145 device (Figure 1 of the specification, shown supra), the pressure chamber can be seen as an area (8), between two discs (12) and (13). A ring of flexible rubber (referred to as the diaphragm (7)), attached to the edges of the discs and to the housing of the regulator allows the two discs to move back and forth within the housing. The disc toward the bottom of the diagram (12) is perforated so that exhaled gases may, when necessary, escape from the regulator. A disc-shaped valve (15) on the portion of disc (12) facing toward disc (13) (and away from the inhalation port (9)), allows exhaled gases to move through the perforations at the appropriate time.
The E-Z Flo concededly does not have a pressure chamber.
Figgie argues that a pressure chamber, as shown in the specification, is necessary for establishing positive pressure in the invention in the '145 patent. To support this argument, Figgie points principally to two factors: the language and disclosures of the patent specification, and the prosecution history.
First, recalling the second Intel factor, Figgie creates a syllogism: Because the specification contains a pressure chamber, and because the pressure chamber is an integral part of the "movable member" which performs the function of establishing gauge *1506 pressure, the claim cannot read on devices lacking a pressure chamber. The E-Z Flo has a diaphragm which does not serve the same functions as a pressure chamber.
It is true that the pressure chamber is a part of the "movable member," and it is also true that the diaphragm in the E-Z Flo does not serve all of the functions of the pressure chamber. These facts are, however, irrelevant. What is important is whether a pressure chamber is required by the patent to perform the specified function of establishing positive pressure. To speak to this issue, among others, Pharos offered the expert testimony of Dr. Gordon Moskowitz, a professor of mechanical engineering who has conducted research on various types of breathing respirators, published numerous articles in the field of breathing apparatus, and has designed and developed breathing respirators for the National Institutes of Health and the National Science Foundation. PX-63; Transcript of Hearing, D.I.s 219-221 ("Tr.") at 84-85. The evidence, as adduced by Dr. Moskowitz, whose testimony the Court credits, demonstrates that the pressure chamber is not required for the establishment of positive pressure in the mask. Tr. 168.
The pressure chamber is merely a part of a structure (or type of a structure) the movable member which performs the function of establishing positive pressure. The pressure chamber, essentially the movable member, accomplishes this result by moving back and forth according to a user's inhalation and exhalation, releasing the detent mechanism at the appropriate time, thereby opening and closing a valve connected to the pressurized oxygen. There has been no showing that a pressure chamber is intrinsic to the performance of these tasks.
The pressure chamber, in addition to being a movable member, serves other, safety related functions (principally through the operation of the exhalation valve (15), and through the existence of a double walled structure separating the inhalation area from the exhaust port). These safety related functions indisputably are not, however, the subject matter of claim 1 of the '145 patent; they have no relationship to the establishment of positive pressure. Nor does the claim or specification allude to any other reason suggesting that the movable member must be a pressure chamber. Thus, the fact that the '145 patent specifies a movable member in the form of a pressure chamber is merely fortuitous; the existence of a pressure chamber vis-a-vis some other movable member is unimportant in light of the functions claim 1 requires a movable member to perform.
Second, Figgie argues that the prosecution history demonstrates that a pressure chamber is a requirement of the claims in the '145 patent. Specifically, Figgie asserts that although the Patent Examiner deleted the reference in Claim 1 to "pressure chamber" and substituted the phrase "movable member," he did not indicate that a pressure chamber was not necessary to distinguish the invention of the '145 patent over the prior art. The applicants for the patent had argued that a pressure chamber distinguished the invention over the prior art.
The evidence not only belies Figgie's argument, but also lends support to the conclusion, reached above, that the pressure chamber is not necessary for establishing positive pressure. Figgie has proffered no evidence that the Patent Examiner considered the pressure chamber as an improvement over the prior art. In fact, the Patent Examiner apparently had concluded that the pressure chamber was not a distinguishing feature, and, more importantly, not necessary to the establishment of positive pressure. In deleting the reference to the pressure chamber in the original claim, the Patent Examiner remarked:
The claim, as amended, now defines the structure of the valve necessary for establishing a gauge pressure therein and which includes a "detent means" releasable in response to an inhalation effort. Such combination structure patentably distinguishes over the prior art references of record.
Patent Examiner's Statement of Reasons for Allowance, PX-33.
In sum, both the specification and prosecution history demonstrate that the movable member taking the form a pressure chamber *1507 is merely the "preferred embodiment" of the invention in the '145 patent; therefore, the movable member need not be a pressure chamber.
ii. comparison of the "movable member" with the corresponding structure in the E-Z Flo
As the Court has determined that the movable member need not be a pressure chamber, it must consider whether the claimed "movable member" is equivalent to the corresponding means in the E-Z Flo.
The Court concludes that the "movable member" of the '145 patent whether or not in the form of a pressure chamber and the diaphragm of the E-Z Flo Regulator are equivalent structures. Most important, the movable member of the '145 device and the diaphragm of the E-Z Flo each consist of the same basic elements or substructures. Each consists of a rubber disc(s) lined around its perimeter with a flexible ring which is in turn attached to the housing. Each contains some opening for the escape of waste gases from one side of the movable member/diaphragm to the other, and some means for closing those openings at appropriate times (the valves in each case are normally closed). Each has a coil spring biasing means.
Additionally, the movable members in both the invention of the '145 patent and the E-Z Flo accomplish the same result in the same way, i.e. they perform the same function in way that further demonstrates their structural equivalence. The diaphragm in the E-Z Flo establishes positive pressure just as the movable member in the '145 device does by moving back and forth with the user's breathing, releasing a detent means (see infra) at the appropriate time, to open and close the valve allowing the mask to pressurize.
In finding that the structures are equivalent, the Court again credits the testimony of Dr. Moskowitz. Tr. at 123-24.
b. "biasing means"
The biasing means is the second means of Claim 1 that must be compared with its corresponding structure in the E-Z Flo and is shown in the specification as a coil spring (19) that is attached to the housing and bears against the movable member. Figgie asserts that as the biasing means of the E-Z Flo does not bear against the movable member; that compared to the claimed means it performs different functions in different ways.
The Court does not accept Figgie's argument. First, the patent requires only that the biasing means bias the movable member toward the inlet chamber. The biasing spring of the E-Z Flo performs this function. Second, the biasing means of both devices perform that function in the same way. In the E-Z Flo, the biasing spring does not directly bear upon the diaphragm; instead it bears on the arm of the latching lever which abuts on the diaphragm. The Courts finds this difference to be immaterial; the fact that the latching lever of the E-Z Flo is interposed between the biasing spring and the diaphragm appears to be of incidental importance. The fact remains that each spring applies force directed against the movable member/diaphragm, thereby operating in the same fashion.
c. "means for releasing gauge pressure"
The final means to be compared under § 112 is that for "releasing gauge pressure."
The "means for releasing gauge pressure ..." refers to the means by which the patented device allows exhaled gases to flow from the inhalation chamber to the exhalation chamber on the other side of the movable member, and ultimately out of the regulator. Figgie claims that the patent and the E-Z Flo employ different means to accomplish the function of releasing gauge pressure.
In the patented device, gauge pressure is released (and exhaled gases allowed to escape) when the movable member moves a predetermined distance toward the exhalation chamber, whereupon a lug (17), located on the periphery of the housing, causes the two discs of the movable member to separate so that gas may pass from the inhalation chamber to the exhalation chamber. Figgie denies that the lug is the releasing means, contending that it is instead the exhalation *1508 valve (15). The testimony of Dr. Moskowitz, which the Court credits, flatly contradicts Figgie's assertion. He noted that the releasing means in the patent is the lug. Tr. at 151-52. Consequently, the releasing means are equivalent, as the E-Z Flo also makes use of a lug which causes the discs of the diaphragm to separate and allow air to flow from the inlet chamber to the exhalation chamber.
2. "detent means ... for moving and maintaining [the] movable member ..."
Finally, Claim 1 of the '145 patent claims a detent means mounted in said housing for moving and maintaining said movable member toward said exhalation chamber against said biasing means whereby said inlet valve means is maintained in its closed position, said detent means including means for releasing said movable member in response to a user's inhalation effort in said inlet chamber whereby said inlet valve opens and said gauge pressure is reestablished.
The parties dispute whether the E-Z Flo has a "detent means;" assuming it does, whether the detent means includes a means for "releasing said movable member...."; and, finally, whether the "detent means" (latching lever) of the E-Z Flo performs each of the main functions described in Claim 1: "moving and maintaining said movable member ..."
a. detent means
As noted above, Claim 1 requires a "detent means." Figgie contends that the E-Z Flo Regulator does not employ a "detent," but rather a "latching lever." Relying on the testimony of Mr. Eugene Giorgini, Scott Aviation's Health and Safety Division Engineering Manager, and Mr. George Vande Sande, the attorney who prosecuted the '145 patent, Figgie would define a detent as a "spring-backed ball device." Mr. Giorgini testified, for example:
[A] detent is ... a device made by the [Vlier] Ball Plunger Company ... in which they had a set screw, which one end was hollowed out, a spring was dropped into that recess, a ball was pushed onto the spring. And the end of the set screw was swaged.
Tr. at 315. Figgie further argues that because the spring-backed-ball detent is the only detent disclosed in the patent, under § 112 ¶ 6 the "spring-backed-ball" definition must be recognized as controlling even if there are other definitions of "detent."
The term "detent" is not defined anywhere in the patent. It has, however, an ordinary and plain meaning. The McGraw-Hill Dictionary of Scientific and Technical Terms defines a detent as: "A catch or lever in a mechanism which initiates or locks movement of a part, especially escapement mechanisms." Tr. at 349. The Court does not credit the testimonies of Mr. Giorgini and Mr. Vande Sande to the extent they conflict with that definition, and credits the testimony of Dr. Moskowitz, which is consistent with that definition: "[A] detent in a general sense is a stop or catch that can be applied in a mechanism such that [after removing a "cap"], it stops ... motion, and [after removing the catch], there is an immediate movement of the mechanism." Tr. at 125. The parties do not appear to dispute that this definition describes each of the mechanisms at issue.
The specification, while not defining the term detent, describes a detent as comprising a bail, or lever, and a catch:
This detent device comprises a slightly springy steel wire bail ... which has a straight central section ... which in the engaged position ... bears against the arm.
....
[T]he catch ... consists of a sprung arm bearing against the wall of a unit ... and fitted at its free end, on the side facing the wall, with a boss ... which, when the catch is on, slips into a recess provided for it in the wall of a unit.
Thus, the specification describes a detent which conforms with the ordinary definition of a detent. It describes, however, a specific type of detent; therefore, the court must determine whether the detent described in the '145 patent and the "latching lever" of the E-Z Flo Regulator are the same or *1509 equivalent structures. As the patent claim uses the term "detent," its meaning guides the inquiry.
As noted above, the patent specification describes a detent as consisting of two basic components: a lever and a catch. While the specification describes each component in more detail, it is the lever and catch structure, used in combination with a spring, that enables the detent described in the patent to perform its function. (The functions are described in detail infra.) In general, the catch allows the detent, and hence the regulator, to remain in the off position, the lever releases the catch upon inhalation, and the spring tends to drive the lever to release the catch upon inhalation.
The "latching lever" of the E-Z Flo is the equivalent of the detent in the '145 invention. As an initial matter, each is a detent under the plain meaning of the term. Additionally, the "latching lever" has the same basic components, a lever and a latch, that perform the same basic functions as the '145 detent. Moreover, both the "latching lever" and '145 patent's detent are activated by springs. The "latching lever" does not have a separate spring for this purpose (as does the detent in the '145 patent); instead, the biasing spring acts upon the latching lever in addition to its other functions. Figgie has not shown, however, that this difference has any functional importance. Compare Radio Steel & Manufacturing Company v. MTD Products, Inc., 731 F.2d 840, 848 (Fed.Cir.1984) (in a means plus function claim, where an accused structure performs a function disclosed in the patent and also performs additional functions not performed by the relevant structure in the specification, the two structures may be equivalent for the purposes of § 112 ¶ 6). In that light, Dr. Moskowitz, whose testimony the Court credits, and Mr. Replogle each described the "latching lever" as a detent. PX-58, p. 3. Finally, while the question of whether the E-Z Flo infringes the '145 patent does not turn on whether the mechanism in the E-Z Flo should be labelled a "detent" or a "latching lever," the fact that the original drawings of the E-Z Flo describe the "latching lever" as a "detent" further supports a conclusion that the '145 detent and the "latching lever" are equivalent structures; it demonstrates that Figgie too conceptualized the mechanisms as substantially similar.
b. "for releasing the movable member in response to inhalation"
Claim 1 of the '145 patent requires a detent which includes "means for releasing the movable member in response to inhalation." Figgie argues that the valve retainer, which is attached to the diaphragm, and not the detent, is the release mechanism for the "latching lever." Figgie's argument in this regard borders on sophistry.
The valve retainer is attached to the diaphragm of the E-Z Flo. Upon a user's first inhalation, the diaphragm, and therefore the valve retainer, moves down. As it moves downward, the valve retainer encounters the latching lever and pulls it out of the latched position. The valve retainer could not unlatch the latching lever, however, unless the latch itself were designed to release. As a result, the latching lever is designed with a small flexible catch that dislodges when the latching lever is pulled downward. Thus, the latching lever includes a means for releasing the movable member embodied in the small flexible catch. The detent of the '145 patent has a corresponding mechanism, a catch (not shown on the illustration of the '145 device in the FACTS, supra), that operates similarly.
c. "for moving and maintaining the movable member"
The detent means performs two general functions according to the claim in the '145 patent. The first function is to "mov[e] and maintain[] [the] movable member toward [the] exhalation chamber against [the] biasing means [such that the] inlet valve means is maintained in its closed position...." As such, the detent must perform three sub-functions. They are: 1) moving the movable member toward the exhalation chamber against the biasing means; 2) maintaining the movable member against the biasing means; and, 3) in performing the second sub-function, maintaining the inlet valve in the closed position. (Figgie would add two more functions: moving the movable member toward the exhalation chamber and maintaining the movable member toward the exhalation *1510 chamber. These functions are, however, redundant.) Additionally, in performing those functions, the detent automatically reestablishes positive pressure.
i. moving the movable member
In the '145 patent's invention, the detent mechanism is located on the inhalation chamber side of the movable member (a diaphragm or pressure chamber). Upon manual activation, it moves the movable member toward the exhalation chamber against the biasing means by physically pushing it in that direction. The lever rotates upward and bears on the inlet valve actuating arm, which in turn rotates upward toward the exhalation chamber until the end of the actuating arm abuts the movable member, at which point it continues to rotate upward, pushing the movable member upward. (While the mask is being used, as the movable member moves toward the exhalation chamber, the biasing spring compresses so that when exhalation is complete the biasing spring will decompress and push the movable member back toward the inhalation chamber. See FACTS, supra.) The detent lever moves in this way only upon manual activation. Once a user releases the detent, it does not move.
The latching lever also moves toward the exhalation chamber; however, because the "latching lever" detent is located on the exhalation side of the movable member, it does not push the movable member toward the exhalation chamber. Instead, as it rotates toward the exhalation chamber, it compresses the biasing spring such that it no longer forces the diaphragm away from the exhalation chamber. As the latching lever removes all forces pushing the diaphragm away from the exhalation chamber, the forces tending to push the diaphragm toward the exhalation chamber become unopposed, causing the diaphragm to move in that direction. Positive pressure and the demand valve spring, which forces a diaphragm lever to push the diaphragm in much the same fashion as the detent lever pushes the movable member on the '145 invention, provide the forces tending to push the diaphragm toward the exhalation chamber. Furthermore, as the latching lever is in permanent contact with the biasing spring, when the user is wearing the mask and the latching lever has been deactivated (unlatched), the latching lever moves back and forth with the movable member.
Figgie argues, principally, that because the latching lever of the E-Z Flo does not pull or push the diaphragm toward the exhalation chamber against the biasing spring, but rather allows the diaphragm to move in that direction, the latching lever does not "move" the diaphragm. The Court finds, however, that the latching lever does indeed move the diaphragm.
First, the Court credits the testimony of Dr. Moskowitz, who testified as follows:
Q. So the [latching] lever changes the forces acting on the movable member [in the E-Z Flo]?
A. Yes. The way to describe these mechanisms or the movement of this movable member is rather than to isolate a single force or a single element operating on the movable member, is to look at this as a its motion as an effect of a combination of forces, which are applied to it both in terms of breathing, as well as the force of this spring driving the lever arm, as well as the force exerted, perhaps, outside by depression of the detent, as well as the effect of the biasing means.
In other words, the way I have described it at times, is that there is a concomitant of forces here that the result of which can move the movable member in whichever direction is appropriate, in response to whatever it is that has to be done, either shutting off the respirator or just providing demand regulation.
Tr. at 130-31. The "concomitant of forces" to which Dr. Moskowitz referred translates to the axiom that the position of any object is determined by the balance of all of the forces acting upon the object. The object moves when that balance is changed, either by addition or removal of a force acting upon the object. Thus, the upshot of Dr. Moskowitz' testimony is that it makes no difference whether something is moved by exerting a force upon it, or removing force that already acts upon it. In crediting Dr. Moskowitz' testimony in this regard, however, the Court *1511 need not find that there is no important difference between removing and exerting a force upon an object. The Court merely finds that the difference, if any, is unimportant in this case.
Even though the latching lever acts by removing forces that act upon the diaphragm, it acts in a remarkably similar way to the detent in the '145 invention. Instead of moving the diaphragm by pushing it against the biasing spring, it moves the diaphragm by pushing the biasing spring directly. When the biasing spring is compressed, the diaphragm immediately moves toward the exhalation chamber. Consequently, although the diaphragm of the E-Z Flo does not supply the direct force against the biasing spring, it nevertheless moves against it through the action of the latching lever detent. Mr. Giorgini, Scott's Health and Safety Division Engineering Manager, testified at trial accordingly, agreeing that "when you push the button [on the latching lever], the result is that the movable member moves up." Tr. 366. Thus, in both the '145 patent and in the accused device the detent performs work against the biasing spring with the consequence that the movable member immediately moves.
ii. maintaining the movable member
Figgie's argument that the E-Z Flo latching lever does not maintain the diaphragm against the biasing means recapitulates the argument Figgie submitted regarding the movement of the diaphragm in conjunction with the latching lever. The former argument fails for the same reason the latter does. When the detent of the '145 invention latches into place after it has fully rotated upward and moved the movable member, it locks the movable member into place by compressing it against the biasing spring. Similarly, when the latching lever latches into place after it has fully rotated upward and moved the diaphragm, it maintains the movable member toward the exhalation chamber by fully compressing the biasing spring such that the remaining forces acting on the diaphragm (from the demand valve spring and any positive pressure) hold it in place. Again, it is of no moment that the diaphragm of the E-Z Flo is maintained in its place by removing a force acting upon it, rather than by exerting a force upon it.
iii. maintaining the inlet valve in a closed position
Figgie claims that because the latching lever does not touch the diaphragm in the shutoff mode, it does not maintain the inlet valve in a closed position. Whether or not the latching lever touches the diaphragm is irrelevant. As the Court concluded above that the latching lever maintains the movable member toward the exhalation chamber, and as maintenance of the movable member toward the exhalation chamber necessarily maintains the inlet valve in a closed position, the Court must also conclude that the latching lever too maintains the inlet valve in a closed position.
iv. automatic reestablishment of gauge pressure
Figgie argues that because there is a slight delay in the E-Z Flo from the time that the diaphragm moves downward following the user's first inhalation to the time when the latching lever is released, the E-Z Flo does not automatically establish positive pressure. Figgie correctly points out that such a delay exists. The diaphragm must move toward the inhalation chamber a small distance before the valve retainer attached to the exhalation chamber side of the diaphragm contacts the latching lever and pulls it out of its latched position. The diaphragm then may move toward the inhalation chamber and consequently reestablish positive pressure.
That the motion of the diaphragm as it moves to establish positive pressure may be described in two phases does not mean that the establishment of positive pressure is not automatic. As such, there is no evidence that the E-Z Flo does not automatically establish gauge pressure; all evidence points to the contrary. Perhaps most important, Figgie advertises the E-Z Flo as an "automatic on/manual off" regulator. PX-70B; PX-27, at 2. Additionally, Figgie has offered no evidence that the E-Z Flo takes any more time to establish positive pressure than do regulators employing the '145 patent design. *1512 (The movable member of the '145 patent also must move a certain distance before positive pressure is established; a time delay must accompany that movement.)
In sum, Figgie's redesign effort consisted of moving the detent from one side of the movable member or diaphragm to the other. This is not an invention beyond the scope of the '145 patent the detent still moves the diaphragm, maintains it in place, and maintains the inlet valve in a closed position. The patent does not require that the detent move and maintain the movable member by physically pushing it; it only requires that the detent move the movable member in a given direction against a biasing spring, and at some point maintain it in position. Figgie certainly had every right to design around the '145 patent, see State Industries, Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed.Cir.1985) ("One of the benefits of a patent system is its so-called "negative incentive" to "design around" a competitor's products...."), but it did not do so. Finally, it is of no moment that in certain modes of operation e.g., exhalation, inhalation, free-flow the E-Z Flo may not operate in a way that would infringe the '145 patent. It matters only that the accused device operate in an infringing way at some time; that is the case here.
B. Doctrine of equivalents
Even if a claim does not literally read on an accused device, the accused device may yet infringe under the doctrine of equivalents. Under the doctrine of equivalents, the scope of a patent claim includes devices that perform "substantially the same function in substantially the same way to obtain the same result." Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950).
Figgie argues that the doctrine should not apply as this is not an infringement action. Apart from the fact Figgie cites no law to support this proposition, it does not make sense. The Court's task is to determine whether or not the scope of the patent covers the E-Z Flo, and scope of the patent is shaped in part by application of the doctrine of equivalents.
Figgie next argues that prosecution history estoppel precludes application of the doctrine of equivalents; however, if the doctrine must be applied in order for the E-Z Flo to fall within the scope of the patent, the E-Z Flo would be a "new product" within the meaning of ¶ 13. First, the Court has already determined that the prosecution history in no way limits the scope of the patent to cover only devices including a pressure chamber. See Part III.A.1.i. Second, Figgie offers no evidence to support the conclusion that any device not literally covered by the '145 patent is a "new product." The Court has already determined that a "new product" is one that does not fall within the scope of the '145 patent, literally or otherwise. Thus, assuming the Court's analysis of the literal infringement issue is incorrect, the doctrine of equivalents nevertheless may be applied in this case.
Just as the E-Z Flo Regulator literally infringes the '145 patent, it infringes the '145 patent under the doctrine of equivalents. The detailed factual discussion regarding literal infringement obviates the need for anything beyond a brief and elementary discussion of infringement by the doctrine of equivalents.
First, both the E-Z Flo Regulator and the device embodied in the '145 patent share the same function. Each is an automatic-on/manual-off regulator which ensures that the breathing mask always has positive pressure.
Second, the regulators each accomplish this task in the same way. Each regulator employs a detent means which allows a user to lock the regulator in the off position, and allows the regulator to unlock automatically upon inhalation. Each detent performs the locking function by latching and preventing the movable member from reestablishing positive pressure; each allows reestablishment of positive pressure by unlatching so as to fully free the movable member. The regulators and their detents each perform in this manner despite having detent mechanisms located on different sides of the movable member. Compare Maxon v. Maxon Construction *1513 Company, 395 F.2d 330, 335 (6th Cir.1968) ("One may not avoid infringement by a mere change in position of an operable element when the operation and results achieved by the accused device are essentially the same as the patented device."). Dr. Moskowitz' testimony further affirms that the two devices operate in the same way and are essentially the same regulator. Tr. at 157-58.
Finally, the overall result obtained by a user of each device is the same. The user of each device is ensured that positive pressure always exists in his mask, that the regulator will instantly establish positive pressure on demand by inhalation, and will continue to supply positive pressure until the user affirmatively and intentionally acts to shut the regulator off.
IV. Featherweight Cylinder
Regulators generally are not sold separately; rather, they are usually sold as part of a package which includes the rest of the SCBA. The parties agreed, therefore, that Figgie would pay royalties on sales of each "Basic" SCBA as well as sales of individual regulators. See Settlement Agreement ¶ 3, PX-1. Paragraph 1(c) of the Settlement Agreement defines "Basic Self-Contained Breathing Apparatus" as follows:
[E]ach "Basic Self-Contained Breathing Apparatus" shall be assumed only to include each of the following types of components currently required by NIOSH [National Institute of Occupational Safety and Health]: back frame and harness assembly; a mask face piece assembly with head harness assembly; cylinder and valve assembly; pressure reducer; high pressure hose and coupling assembly. Each Basic Self-Contained Breathing Apparatus shall not include any accessory or attachment which is not listed in the previous sentence.
After the Settlement Agreement went into effect, Figgie sold and paid royalties on SCBAs including two types of cylinders: standard and lightweight.
In the fall of 1990, Figgie began to sell the "Featherweight Cylinder" with many of its SCBAs. The Featherweight Cylinder is 8.25 lbs. lighter than the standard cylinder, and 3.75 lbs. lighter than the lightweight cylinder. It is the best cylinder Figgie offers and consequently sells at higher price than either of the other two types of cylinders. Upon the sale of each SCBA including a Featherweight Cylinder, however, Figgie did not pay a royalty to Pharos based on the increased cost of the Featherweight Cylinder. Instead, Figgie paid royalties on each SCBA sold with a Featherweight Cylinder as if it had been sold with a standard cylinder.
Pharos now complains that this practice violates the Settlement Agreement, arguing that the Featherweight Cylinder is a "type" of cylinder and valve assembly, and thus included within the definition of a Basic SCBA. Figgie contends, however, that the Featherweight Cylinder is merely an "accessory," and hence not part of a Basic SCBA. In response to Pharos' argument that the Featherweight Cylinder is a type of cylinder and valve assembly, Figgie analogizes the Featherweight Cylinder to leather seats in automobiles: "Leather seats are an automobile accessory even though automobiles have seats." Defendant's Proposed Findings of Fact and Conclusions of Law, D.I. 226, at 46. In other words, even if the Featherweight Cylinder is a type of cylinder, it comes with an accessory, lightness, which is not included in a Basic SCBA.
Figgie's analogy, however, does not hold. Even if lightness might be considered the "accessory," the Featherweight Cylinder is no less a type of cylinder and valve assembly covered by the Basic SCBA definition. Moreover, according to the Settlement Agreement, not all accessories are not included in a Basic SCBA; only those accessories not listed among the types of components defining a Basic SCBA fall outside the definition of the Basic SCBA. Thus, the list includes items that might otherwise be defined as accessories. In sum, the Settlement Agreement language is unambiguous: the Featherweight Cylinder is type of component required by NIOSH (the cylinder and valve assembly), and, because it is a "type of component," it cannot be an accessory not included in the list of components defining an SCBA.
*1514 Figgie's additional arguments in support of a contrary interpretation are even weaker. First, Figgie argues that because the Featherweight Cylinder was not required by NIOSH, it is not a component within the meaning of the Settlement Agreement. As already discussed, however, the Agreement mentions types of components required by NIOSH, not merely particular components required by NIOSH. Second, Figgie points to the facts that the Featherweight Cylinder is a significant improvement over previous cylinders, has its own customer demand, and is marketed separately; as a result, the market regards the Featherweight Cylinder as an accessory. Ignoring the fact that Figgie has produced no evidence concerning market perceptions, market perceptions are nevertheless irrelevant. Again, the Settlement Agreement defines accessories as things not listed among the types of components required by NIOSH. It does not define accessories in terms of quality, price, marketing situation, or market acceptance.
To the extent the language may be ambiguous, extrinsic factors further support Pharos' interpretation of the Settlement Agreement. Most important, the parties' course of dealing strongly suggests Figgie should have included and should include the price of the Featherweight Cylinders in the figures used to calculate royalties. The arguments Figgie proffers regarding the Featherweight Cylinder would appear equally to support the withholding of royalty payments on the entire sales cost of the lightweight cylinder, too, yet Figgie has always paid royalties on it as well as the standard cylinder. If the Court were to accept Figgie's interpretation of the Settlement Agreement, it would create an unusual situation in which Pharos would receive a higher royalty for certain cheaper SCBAs those including a lightweight cylinder than other more expensive ones (those including a Featherweight Cylinder). If the lightweight cylinder must be included within a Basic SCBA, then the Featherweight Cylinder also must be so included.
Testimony presented at the hearing also supports the inclusion of Featherweight Cylinders as components within the definition of a Basic SCBA. Mr. Almqvist, whose testimony the Court credits, indicated that the parties intended that the prices of items such as Featherweight Cylinders be included in the calculation of royalty payments. Tr. at 52-53. He also testified that at the time of the Agreement Figgie sold several different cylinders, and that all were to have been covered by the royalty provisions of the Settlement Agreement. Mr. Koppmann, on the other hand, testified to the contrary; that under the Settlement Agreement, the price of the Featherweight Cylinder was not to be factored into the royalty calculations. Tr. 458. Because Mr. Koppmann was not a party to the settlement negotiations he merely read drafts of the agreements and performed some calculations the Court discredits his testimony. Tr. 392.
Finally, Figgie sales literature belies the argument that the Featherweight Cylinder is considered an accessory. Figgie's price list shows the Featherweight Cylinder as a component of five different SCBAs and is not included in the price section list marked "Accessories." PX-18. A Figgie sales brochure describes different types of SCBAs including standard, lightweight, and featherweight cylinders. PX-27, Tr. 456-67. It too fails to list the Featherweight Cylinder as an accessory; the accessory list includes items such as carrying cases and supply hoses.
V. Figgie's sales to unaffiliated entities SSA's status under the Settlement Agreement
Figgie is a conglomerate of several divisions and subsidiaries, including Scott and SSA. Scott Aviation is a manufacturer and supplier of SCBAs. Scott Aviation sells SCBAs incorporating regulators to principally three types of customers. First, it sells some SCBAs to "end-users." End-users are the consumers of SCBAs, including, for example, firefighting companies. Scott Aviation's only significant end-user customer is the federal government (it is also Scott Aviation's biggest customer). Second, Scott Aviation sells some SCBAs to independent distributors, who in turn sell the SCBAs to end-users, or perhaps to other distributors. Finally, Scott Aviation sells or transfers some SCBAs to SSA, which is a conglomeration of *1515 formerly independent distributors now owned by Figgie. SSA, like the independent distributors, sells to end-users. Not surprisingly, however, Scott Aviation charges SSA 25% less for SCBAs than it charges to the independent distributors.
The parties dispute how royalties should be calculated on sales through (to and/or from) SSA. Figgie has paid royalties based on sales from Scott Aviation to SSA. It calculates the royalties, however, as if an independent distributor had been invoiced for the sale it substitutes the cheaper price billed to SSA for the more expensive price charged to independent distributors. Pharos argues that royalties should be calculated on the basis of sales from SSA to end-users rather than sales from Scott Aviation to SSA. In other words, Pharos argues that royalties should be calculated on each transaction in which an SCBA leaves the Figgie family, while Figgie maintains that royalties should be calculated on each transaction in which an SCBA is sold by Scott Aviation. Each party contends that its interpretation comports with the plain meaning of the Settlement Agreement.
Paragraph 1(f) of the Settlement Agreement provides that royalties shall be calculated based upon the weighted average net sales price of SCBAs "invoiced by Scott ... to Unaffiliated Customers." The terms "Scott" and "Unaffiliated Customer" are defined elsewhere in the Settlement Agreement. "Scott" is defined in the first paragraph of the agreement as, collectively, "Figgie International Inc., ... its parent, its divisions, its wholly or partly owned subsidiaries, and its wholly or partly owned affiliates...." Paragraphs 1(d) and 1(e) define the terms "Customer" and "Unaffiliated Customer," respectively:
1(d) "Customer" means the transferee for value (including any distributor) directly from Scott of a Regulator.
1(e) "Unaffiliated Customer" means any Customer in which Scott holds an equity interest of less than 35% of such Customer's total equity and which is not controlled by or under common control with Scott.
The parties appear to agree that these terms were negotiated to protect both Figgie and Pharos from potential injustices. On one hand, as many end-users receive their Regulators and/or SCBAs from independent distributors, it would have been unfair to mark all sales to end-users, resulting in Figgie paying royalties based on others' sales and profits. On the other hand, as Figgie had been acquiring many distributors to whom it charges a lower price than it charges to independent distributors, it would have been unfair to calculate the royalty based on the price in the invoice to the distributor. Figgie could then minimize its royalty payments by acquiring distributors and slashing wholesale prices. Though the parties disagree as to exactly what compromise was reached, each party offers an interpretation that accommodates these concerns.
Pharos supports its position with a straightforward, syllogistic reading of the definitions of "Scott," "Customer," and "Unaffiliated Customer." First, because SSA is a wholly or partly owned subsidiary or affiliate of Figgie, it is a part of "Scott." Thus, when SSA buys or sells an SCBA, or in fact does anything, so does "Scott." Second, because the purchasers (usually end-users) who purchase from SSA are transferees for value from "Scott," and because the purchasers typically are not controlled by "Scott," those who purchase from SSA are "Unaffiliated Customers" under ¶¶ 1(d) and 1(e). Thus, under ¶ 1(f), an invoice from SSA to a typical purchaser is an invoice from Scott to an "Unaffiliated Customer" and must therefore be used as the basis for royalty calculations.
In contrast, Figgie argues that the term "Scott" often refers only to Scott Aviation and not the collective identity of Figgie, and that consequently the definition of "Unaffiliated Customer" includes only end-users who purchase directly from Scott Aviation (these end-users are the federal government) and independent distributors. In other words, end-users who purchase from SSA are not "Unaffiliated Customers" because they do not purchase from Scott Aviation and are not therefore "Customers." In short, Figgie suggests that a sale to SSA would be a sale to a "Customer" and would trigger a royalty payment under ¶ 3(b), which requires payments on Regulators invoiced by Scott; however, *1516 pursuant to ¶ 1(f), the payment would be made on the basis of an invoice to an "Unaffiliated Customer" such as an independent distributor. Thus, the disagreement between the parties is really one over the meaning of "Scott," as its meaning is critical to the meaning of the other important term, "Unaffiliated Customer."
In support of its argument, Figgie attacks the logic of Pharos' interpretation. It contends that if Pharos' position that the first buyer outside the Figgie/Scott organization is a customer which follows directly from Pharos' interpretation of "Scott" in ¶ 1(d) were correct, then the definition of "Unaffiliated Customer" would be rendered redundant, as all Customers being outside the Figgie/Scott organization necessarily would be Unaffiliated Customers. The Settlement Agreement refers at various times, however, to both "Customers" and "Unaffiliated Customers." Paragraph 1(f), for example uses each term ("Net Sales Price" is defined as "the net selling price actually invoiced by Scott to a Customer...."). Moreover, Figgie argues that Pharos' position would lead to another anomaly: Because ¶ 3(b) requires that a royalty is triggered on a sale to SSA, the use of an invoice from SSA to end-users to calculate the royalty would force Figgie to pay royalties on SCBAs before the royalty payment could be properly calculated. Given that there can be significant time lags between sales to SSA and subsequent sales from SSA, it would be impractical, if not impossible, to calculate royalties in the proper calendar quarter in which they are due.
Each interpretation appears to be at the very least plausible, although under either party's reading the Settlement Agreement is fraught with problems. On its face, the Settlement Agreement is ambiguous; hence, in order to choose an interpretation the Court will consider the language of the agreement in conjunction with extrinsic evidence, particularly the negotiating history.
The Court finds that the parties intended to mark sales from the Figgie family to entities outside the Figgie family rather than sales from Scott Aviation to its customers. On the face of the contract alone, while both parties offer plausible constructions, Pharos' construction appears to make the most sense. First, the definition of "Scott" in the Settlement Agreement is clear. Paragraph 1(c) of the Agreement mentions Scott Aviation as part of Scott, yet nowhere in the settlement agreement is the term Scott Aviation used. The Agreement does not mention or hint at any alternative uses of the term "Scott." It would have been a simple matter to substitute the words, "Scott Aviation" at appropriate points.
Second, by adhering to the definition of "Scott" provided in the first paragraph of the agreement, the distinction between "Customers" and "Unaffiliated Customers" does not necessarily break down. Conceivably, "Scott" can sell a product to itself, as when Scott Aviation sells to SSA. As such, SSA would be a "Customer," but not an "Unaffiliated Customer." Undoubtedly, this interpretation of the Agreement leads to the awkward scenario in which a royalty would technically attach before it could be calculated. To some extent, such awkwardness is ameliorated by the contractual provision allowing Figgie to pay royalties some time after customers are invoiced. See Settlement Agreement, ¶ 5 (royalty payments due thirty days after the end of the quarter in which the royalty generating sale occurs). Nevertheless, interpreting the language of the agreement to effect a somewhat awkward scheme appears to do the language of the Agreement less injustice than obliterating the consistent application of a defined term.
Extrinsic factors also support Pharos' position. First, the negotiating history shows that "Scott" was a hotly negotiated term. The parties went through several drafts, each with different definitions of "Scott," before the final definition was arrived at. PXs 1-10. In support of its position regarding the definition of Scott, Figgie points to a letter which it claims reveals that Pharos understood that "Scott" could sometimes refer only to Scott Aviation. In that letter, which accompanied the Interspiro draft of July 25, 1989, containing the final definitions of "Scott," "Customer," and "Unaffiliated Customer," plaintiff's counsel wrote to the defendants:
*1517 Finally, I have included a signature line for an official of the Scott Division. Though I understand that the signature of an official of Figgie binds Scott, I believe that since Scott is implementing this agreement, it is useful to have Scott sign.
PX-5. The letter only demonstrates the obvious: that it is possible to use the word "Scott" to refer to Scott Aviation. This letter, moreover, implicitly signals that its use of the word "Scott" refers to the Scott Division (the Settlement Agreement contains no such signal). Thus, the letter is of no aid in interpreting the Settlement Agreement; it does nothing to show that any particular use of the term "Scott" in the Settlement Agreement refers, as the letter does, to Scott Aviation or the Scott Division.
Second, the negotiating history contains no indication that the term "Unaffiliated Customer" was meant to embrace only the federal government and independent distributors. Figgie's argument that the negotiating history supports its contention is wholly conclusory. Figgie merely notes, in that regard, that sales to both affiliated and unaffiliated customers were contemplated and that during negotiations both parties knew that Scott Aviation sold to both affiliated and unaffiliated distributors. However, such facts do not appear to be inconsistent with either Figgie's or Pharos' interpretation of the Settlement Agreement. Figgie further argues that the negotiating history does not indicate that the parties intended to calculate royalties based on prices to end-user customers of affiliated or unaffiliated distributors, but the negotiating history regarding the definition of "Scott," and by implication the definitions of "Customer" and "Unaffiliated Customer," belies that notion as well.
Finally, each party called witnesses to testify as to the meaning of the Settlement Agreement. Again, Figgie offered the testimony of Mr. Koppmann while Pharos offered the contradictory testimony of Mr. Almqvist. Tr. 397-98 (Koppmann); Tr. 61-62 (Almqvist). As only Mr. Almqvist participated in the settlement negotiations, and as Mr. Almqvist's testimony appeared to be more consistent with the evidence, the Court credits Mr. Almqvist's testimony that the parties intended to mark sales outside the Figgie family for the purposes of calculating royalties.
VI. The Pharos Audit
Pharos next argues that Figgie breached the Settlement Agreement auditing provision, as well as the implied covenant of good-faith and fair dealing, in three ways: 1) by failing to provide the auditors with information concerning Figgie's ownership interest in its distributors; 2) by failing to supply auditors with information concerning SSA's sales to end users; and, 3) by failing to provide the auditor with information concerning the E-Z Flo and by failing to provide an E-Z Flo Regulator to Pharos itself on request. Figgie contends that it did not have a responsibility to provide any of that information and that in fact Pharos requested the audit merely to go on a fishing expedition.
Paragraph 6 of the Settlement Agreement contains the relevant auditing provision:
With each [royalty] payment ... Scott shall provide a report to Interspiro explaining how the amount of the payment was calculated.... Scott shall be obligated to maintain accounting records and other documentation for two years after payment ... in order to permit an audit by a certified public accounting firm to be selected by Interspiro. The auditors shall not reveal to Interspiro, or any other entity, any of Scott's proprietary information. Any information obtained by the auditors from Scott, which Scott in good faith has designated to be proprietary, shall not be revealed to Interspiro unless approved by Scott. Scott shall not designate as proprietary its sales figures or prices, to the extent necessary to report or explain payments under paragraph 3, though there may be certain specific information about those sales figures or breakdowns of them that is proprietary. If Scott believes the information is proprietary, it will be Scott's obligation to supply alternative information that the auditors determine is satisfactory to consult with Interspiro to the extent required to perform their audit and advise Interspiro.
*1518 As an initial matter, the Court concludes that Pharos initiated the audit in good-faith. The Court credits the unrebutted testimony of Mr. Carney that he initiated the audit only after Mr. Almqvist had informed him that the "Weighted Average Price" used in calculating royalty payments seemed too low. Tr. at 203. As such, the Court considers whether Figgie acted properly in withholding the three types of information described above.
A. Figgie's failure to provide the auditors with information concerning Figgie's ownership interests in its distributors
Figgie generally contends that the information concerning Figgie's ownership interest in its distributors was both proprietary and difficult to provide. First, Figgie argues that Figgie, rather than the auditors, had the right to determine what information was necessary to complete the audit. Figgie further submits that the first two sentences of the Settlement Agreement's audit provision, obligating Figgie to provide a report concerning royalties and to maintain accounting records and other documentation, entitled the auditors only to accounting records and a report.
The plain language of the Settlement Agreement belies Figgie's argument. The Settlement Agreement regulates only the flow of information to Interspiro, not to the auditors. It merely provides that if Figgie, in good-faith labels information as proprietary, then Interspiro shall not have access to that information through the auditors; however, when Figgie labels information proprietary, Figgie must provide the auditors with other information for the purposes of discussing the audit with Interspiro. Moreover, the Agreement specifically provides that in such cases the auditors shall determine what information is necessary to consult with Interspiro concerning the audit.
If the auditors are to determine what information is necessary to fairly discuss the audit with Interspiro, it would seem logical that the auditors are also entitled to determine what information is necessary to perform an audit worthy of discussing especially as the Agreement does not provide Figgie with any right to control information flow to the auditors. The testimony of Mr. Almqvist, which is unrebutted by contrary testimony from a person involved in the settlement negotiations, and which the Court credits, supports that conclusion. Tr. at 62-65. Moreover, the language of the first two sentences of ¶ 6 of the Settlement Agreement in no way limits the information to which an auditor would be entitled. Those sentences, particularly by requiring Figgie to maintain "other documentation," only reinforce the notion that the auditors were entitled to any information necessary to conduct an audit. Thus, to the extent Figgie fairly labeled the information concerning its distributors as confidential or proprietary, it nevertheless should have conveyed that information to the auditors.
Correspondingly, it was primarily for the auditors to determine what information would have been relevant to effectuate the Agreement. When asked for the information concerning its distributors, for example, Figgie argued that the information was irrelevant for the purposes of calculating royalties. Even if Figgie could have properly withheld irrelevant information, the Court's conclusions in Parts IV and V demonstrate that all of the information requested by the auditors was indeed relevant. In short, if Figgie has a right to withhold information under the Settlement Agreement, the right pertains only to information not reasonably necessary to the completion of the audit. To the extent the Agreement was unclear concerning revenue calculation, the auditors made reasonable requests to which Figgie should have responded.
Second, Figgie argues that because its distributors whether or not affiliated with Figgie are separate "profit centers," obtaining the relevant information from the distributors would have been impractical. When the auditors first asked Scott Aviation, which was implementing the Settlement Agreement on behalf of Figgie, for the information, Mr. Koppmann apparently offered to get the information from Figgie. According to Mr. Koppmann, after the auditors rejected this suggestion they suggested a mass mailing to each distributor asking each distributor *1519 to disclose Figgie's equity interest in it. (It remains unclear exactly what kinds of information Mr. Koppmann offered to obtain, and if, why, or to what extent the auditors rejected the initial offer to get the information from Figgie.) Mr. Koppmann suggested instead that the auditors request the information from the Secretary of State for each state in which a distributor was incorporated. He claimed Figgie did not have sufficient control over its distributors to acquire the information. He also claimed that such information was "confidential," though he never offered a supporting explanation.
The Court finds it hard to believe the proposition that Figgie did not have sufficient control over its distributors to obtain the information. At the very least, Figgie should have had little difficulty in acquiring such information from distributors in which Figgie owned some equity stake (such information alone might have been sufficiently conducive to the audit considering the auditors' goal of determining degree of control). As parties to the Settlement Agreement (see definition of "Scott" in Part V), any wholly or partly owned affiliate should have been willing to supply information conducive to the audit. Furthermore, the Court cannot say that the auditors' rejection of Mr. Koppmann's offer to get the information from Figgie to be unreasonable; it is entirely possible Figgie could not have provided sufficient verification. Finally, in light of the circumstances, Mr. Koppmann's second suggestion to the auditors, to contact state government for ownership information, appears to have been particularly impracticable and unreasonable.
In sum, the information requested appears to have been of the type Figgie could have obtained with minimal effort, and should have, in good-faith, supplied. Even if Figgie's readings of the substantive terms of the provisions bearing on royalties were made in good-faith, its efforts to stonewall the audit were not.
B. Figgie's failure to provide SSA's invoices
Figgie argues that because it did not control SSA, it could not have obtained SSA's invoices or sales information. It also contends that the information was irrelevant for the purposes of royalty calculations. These arguments must fail for the same reasons the arguments in the preceding paragraphs (Part VI.A.) fail. The requested information was both relevant and easily obtainable; the auditors' request for the information was reasonable even if the Agreement was unclear. As SSA was a Figgie affiliate and a party to the Settlement Agreement, Figgie should have been able to obtain from SSA the relevant information.
C. Figgie's refusal to provide an E-Z Flo Regulator, or information concerning it, immediately upon request
Figgie refused to supply an E-Z Flo and information pertaining to the E-Z Flo to both the auditors and Interspiro. With regard to the auditors' requests for sales information for the purposes of calculating revenues, the Court's conclusions in Parts V.A. and V.B. apply; Figgie should have provided it. On the other hand, as possession by the auditors of an E-Z Flo regulator does not appear to have been reasonably necessary to completion of the audit, Figgie did not act improperly by refusing to supply an E-Z Flo to the auditors. A final issue remains: whether Figgie had an explicit or implicit duty to supply an E-Z Flo to Interspiro upon its request.
When Mr. Carney asked Figgie to sell to Pharos an E-Z Flo Regulator, Mr. Koppmann cited two reasons for denying the request: 1) Scott Aviation did not have an E-Z Flo available; and, 2) Scott would provide an E-Z Flo only after Pharos informed Figgie of its position on infringement. Mr. Koppmann then suggested that Pharos obtain an E-Z Flo from a distributor. Pharos ordered an E-Z Flo from a distributor, and received it approximately two weeks later.
The Court concludes that Figgie's conduct was improper. Figgie appears to have had a duty to supply Pharos with an E-Z Flo Regulator. Pharos cannot fairly exercise its contractual right to audit Figgie without being allowed to examine products which could potentially fall within the scope of the agreement *1520 and ultimately generate revenues for Pharos. As such, a good-faith implementation of the auditing provision would have required a reasonable attempt on Figgie's part to supply a regulator. Such a reasonable attempt was not made.
It also appears that Figgie's excuses for failing to sell Pharos an E-Z Flo Regulator were not acceptable. First, it seems highly unlikely that the producer of the E-Z Flo Regulator could not have immediately obtained one for sale and shipment. Second, it was unreasonable for Mr. Koppmann to condition Scott Aviation's sale of an E-Z Flo upon Pharos' tender of an infringement opinion on that very product. Mr. Koppmann could not reasonably have expected such an opinion from Pharos until Pharos had been given an opportunity to examine an E-Z Flo in the first place. Thus, Figgie breached the Settlement Agreement in failing to make a good-faith effort to supply Pharos with an E-Z Flo.
VII. Attorneys' Fees
Finally, Pharos asks the Court to award to it attorneys' fees under 35 U.S.C. § 285 as a result of Figgie's bad-faith in implementing the Settlement Agreement. 35 U.S.C. § 285 provides:
The court in exceptional cases may award reasonable attorney fees to the prevailing party.
Pharos further notes that the Court retains, in addition to the powers conferred by the statute, inherent power to award attorneys' fees where litigation has been conducted in bad-faith. See Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702 (1973). Figgie replies, however, that the attorneys' fees issue is controlled not by federal (patent) law, but by New York law. Under New York law, fees may only be awarded when authorized "by agreement between the parties or by statute or by court rule." A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5, 511 N.Y.S.2d 216, 503 N.E.2d 681 (1986).
This case involves a contract dispute over a settlement agreement arising out of a case grounded in federal law and executed under the auspices of the federal courts. Thus, the basis of this Court's jurisdiction remains federal in nature the case is based ultimately on a federal question. While pursuant to the agreement of the parties the substantive provisions of the contract must be interpreted under New York law, New York law cannot trump the powers this Court otherwise retains as accoutrements of its federal question jurisdiction. The attorneys' fees issue is clearly not one of contract interpretation; therefore, it is an issue to be decided under federal law. The Court also notes in passing that the Court's inherent fee-shifting powers appear to be procedural in nature; hence, the Court might well have been free to award fees even if the basis for jurisdiction in this case had been in diversity. See Chambers v. NASCO, Inc., ___ U.S. ___, ___, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27, 51-52 (1991) ("We agree ... that `[w]e do not see how the district court's inherent power to tax fees for [bad faith] conduct can be made subservient to any state policy without transgressing the boundaries set out in Erie, [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ], Guaranty Trust Co. [v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)], and Hanna [v. Plumer, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)],' for `[f]ee-shifting here is not a matter of substantive remedy, but of vindicating judicial authority.'") (quoting NASCO, Inc. v. Calcasieu Television and Radio, Inc., 894 F.2d 696, 705 (5th Cir.1990)).
Figgie next argues that because Pharos no longer owns the patent in suit and because this is a contract action, 35 U.S.C. § 285 is unavailable to Pharos. Figgie cites four cases, California Eastern Laboratories, Inc. v. Gould, 896 F.2d 400, 403 (9th Cir. 1990), Machinery Corp. of America v. Gullfiber AB, 774 F.2d 467, 475 (Fed.Cir.1985), Peterson Manufacturing Co. v. Central Purchasing Inc., 740 F.2d 1541, 1551 (Fed.Cir. 1984), and Stickle v. Heublein, Inc., 716 F.2d 1550, 1564 (Fed.Cir.1983), for the proposition that § 285 applies only to infringement actions.
Figgie is correct that § 285 applies only to infringement actions. The definition of an infringement action for the purposes of § 285 is, however, fairly broad. The cases cited by *1521 Figgie go on to say that § 285 should not be applied to shift fees regarding claims unrelated to patent law. In Gould, for example, "the alleged fraud [was] unconnected to any infringement claim." Gould, 896 F.2d at 403. In Gullfiber AB, in contrast, the Federal Circuit held that attorneys' fees may be assessed under § 285 for a tortious interference claim related to a patent infringement claim.
This case involves, at bottom, a patent claim. The breach of contract claims in this case are not merely connected or related to the patent claim; they arise from it. Just as § 285 was held to apply to a tortious interference claim in Gullfiber AB, it should apply to the breach of contract claims in this case.
In a final attempt to stave off the application of § 285, Figgie argues that an award under the statute must be grounded on a finding of willful infringement. See Bott v. Four Star Corp., 807 F.2d 1567, 1574 (Fed.Cir.1986); Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed.Cir.1985). The cases cited by Figgie do not contain any statements to that effect; rather, they note that attorneys' fees may be properly awarded following a finding of willful infringement.
As the statute states, the Court may award attorneys' fees to the prevailing party only in exceptional cases. An exceptional case is one in which it would be grossly unfair for the prevailing party to bear the cost of litigation, or where the conduct of the losing party is marked by bad-faith or unfairness. Gullfiber AB, 774 F.2d at 467 (quoting Park-in Theatres, Inc. v. Perkins, 190 F.2d 137, 142 (9th Cir.1951)). Correspondingly, in considering whether a case is exceptional, courts look to factors such as the "closeness of the case" and "the parties conduct and their trial counsel's tactics, including evidence of bad faith." Afros S.P.A. v. Krauss-Maffei Corp., 671 F.Supp. 1402 (D.Del.1987), aff'd, 848 F.2d 1244 (Fed.Cir.1988).
This is an exceptional case. First, the principle issue in this case whether the E-Z Flo Regulator infringed the '145 patent and consequently was not a new product was not close. The Court recognizes that the patent law and system encourages designing around patented inventions; however, in this case, not only did Figgie fail to design around the '145 patent, it failed in a transparent, obvious way. The fact remains that Figgie merely switched the detent mechanism from one side of the diaphragm to other, accomplishing little if anything, and then attempted to exaggerate this minor change into a design innovation. It should have been abundantly clear to Figgie that it was producing an infringing device and improperly withholding royalty payments generated from its sales. This factor alone merits an award of fees and costs.
With regard to the disputes about royalty calculations (inclusion of featherweight cylinder and SSA's status), the Court finds that taken individually, Figgie's positions were plausible, although minimally so. Taken in context and in consideration of some of the arguments Figgie offered in support of those positions, however, the Court finds that fee shifting is proper for work done on these issues as well.
The Court predicates its finding not only on the closeness of the case, but also on Figgie's conduct in general and approach to the case. In this respect, the Court highlights Figgie's recalcitrance in implementing the settlement agreement, particularly with regard to Figgie's stonewalling of the audit, and its apparent intention to settle the original patent infringement case and then scuttle the settlement, as evidenced by its plans to develop the E-Z Flo while negotiations for the settlement agreement were underway, and its subsequent sale of the E-Z Flo without paying royalties. Even ignoring the E-Z Flo issue, Figgie scorned the settlement agreement from the first by failing to pay its full share of royalties based on sales of the Featherweight Cylinder and sales from SSA.
In finding Figgie liable for attorneys' fees, the Court recognizes its obligation to enforce settlement agreements and foster the repose of settled litigation, especially in patent cases. See Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.1976); New Castle County v. U.S. Fire Insurance Company, 728 F.Supp. 318, 320 (D.Del.1989). Moreover, the Court's decision would be no *1522 different under federal common law, which recognizes that refusal to abide by the terms of a settlement agreement can constitute bad faith, entitling the wronged party to attorneys' fees. See Hobbs & Co., Inc. v. American Investors Management, Inc., 576 F.2d 29, 35-36 & n. 18 (3d Cir.1978). This case does not appreciably differ from the analogous case of Interdynamics, Inc. v. Firma Wolf, 653 F.2d 93, 98 (3d Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981), in which a defendant was held in contempt for attempting to avoid obligations under a Consent Degree settling patent litigation by introducing a slightly modified product, deeming it a new product, and thus requiring relitigation of the issues resolved under the Consent Decree. See also KSM Fastening Systems, Inc. v. H.A. Jones Company, Inc., 776 F.2d 1522, 1528-29 (Fed.Cir. 1985) (party may be held in contempt if modified product infringes and is only "colorably different" from the product admitted or adjudged infringed; moreover, "with a consent decree, an adjudged device ... is an admitted infringement, and the claims of the patent may be construed in light of that admission when the court undertakes to determine whether a modified device is also an infringement in contempt proceedings.").
The Court will issue an Order in accordance with this Opinion and scheduling further proceedings in this matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585099/ | 24 So. 3d 855 (2010)
STATE of Louisiana
v.
Richard HAMILTON.
No. 2009-KK-2205.
Supreme Court of Louisiana.
January 8, 2010.
Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546730/ | 377 B.R. 648 (2007)
In re David Maurice CRAIGHEAD, Debtor.
No. 07-51596-ASW.
United States Bankruptcy Court, N.D. California.
October 16, 2007.
*649 *650 David Maurice Craighead, San Jose, CA, pro se.
MEMORANDUM DECISION DISMISSING CASE WITH REFILING BAR
ARTHUR S. WEISSBRODT, Bankruptcy Judge.
Before the Court are the motions of the United States Trustee ("UST") and the Chapter 13 Trustee ("Trustee") to dismiss the bankruptcy case of Debtor David Maurice Craighead ("Debtor") with a five-year refiling bar (collectively, "Motions"). The Motions were filed on June 11, 2007. The UST is represented by Shannon L. Mounger-Lum, Esq. Trustee is represented by E. Alexandra DeLateur, Esq. Debtor is appearing in propria persona. A hearing on the Motions was held on July 9, 2007. Instead of responding on the merits, Debtor faxed to this Court a document entitled Objection to Illegal Motion by the U.S. Trustee and Request for Dismissal ("Objection") on July 8, 2007, the day before the hearing.[1] The Objection was faxed to the UST and the Trustee on July 8, 2007 and served by mail on the same day on the Internal Revenue Service. The Objection was filed with the Court on July 11, 2007. Debtor did not appear at the hearing. At the request of the Court at the July 9, 2007 hearing, the UST and Trustee filed supplemental briefs in support of the Motions on July 19, 2007.
This Memorandum Decision constitutes the Court's findings of fact and conclusions of law, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure. After consideration of the Motions, the Objection and the supplemental briefs, and based on the evidence before the Court, the Court dismisses Debtor's bankruptcy case with a three-year refiling bar.
I.
FACTS
Debtor filed a voluntary Chapter 13 petition on May 29, 2007. This case was a *651 skeleton filing Debtor did not file any schedules, a Statement of Financial Affairs, a Means Test form, or a Chapter 13 plan. Debtor also filed a request to pay the filing fee in installments. The Court issued an order to show cause re dismissal on May 30, 2007, for Debtor's failure to file a Chapter 13 plan, schedules, a Statement of Financial Affairs, and a Means Test form. As noted above, the Motions were filed on June 11, 2007.
On June 13, 2007, Debtor filed a Chapter 13 plan and also requested a 45-day extension to file additional documents. On June 27, 2007, this Court granted Debtor's request for an additional 45 days from July 13, 2007, to file the additional documents. Debtor failed to appear at his Section 341 meeting of creditors on July 2, 2007. The Section 341 meeting of creditors was continued to July 16, 2007.
Previously, on March 26, 2007, Debtor had filed another skeletal chapter 13 case In re David Maurice Craighead, 07-50856-ASW. Debtor also requested to pay the filing fee in installments in that case. Debtor's prior case was dismissed pursuant to the Court's Order to Show Cause on May 17, 2007, following Debtor's failure to file schedules, a Statement of Financial Affairs, and a Means Test Form. Debtor filed the current case twelve days after the dismissal of his prior case.
The UST and Trustee argue that Debtor's actions are part of a concerted effort by his family to prevent a foreclosure of real properties located at 7871 Prestwick Circle, San Jose, California ("Prestwick Property"), and 7119 Via Portada, San Jose, California ("Via Portada Property"). The UST and Trustee contend that this bankruptcy petition is a continuation of the numerous transfers of real property and incomplete bankruptcy filings that have been generated by the Craighead family and Robert Helwig[2] since 1998. Debtor, Debtor's father Carlton Craighead, Debtor's mother Patricia Craighead, Debtor's brother Peter Craighead, and Robert Helwig have collectively filed at least twenty-two bankruptcy cases since 1998.[3]
Of the twenty-two bankruptcy cases, six have been filed by Debtor. Of the six cases filed by Debtor, five were dismissed prior to confirmation and the sixth is the current case. A chart of the various bankruptcy filings including whether the filings were skeletal and whether the respective debtors requested that the filing fees be paid in installments and the disposition of each, is set forth in the chart below. The six cases filed by Debtor are denoted by gray shading: *652
Ch Case no. Partition Debtor Type Disposition
Date
1 13 98-59147 ASW 11/12/98 Canton Craighead Skeletal Dism 12/5/98 -- no docs
2 13 98-60170 JRG 12/22/98 Carlton Craighead Skel/install Dism 7/29/99 -- pre-conf
3 13 99-54519 JRG 07/02/99 Robert Helwig Skel/install Dism 12/9/99 -- pre-conf
4 7 99-54640 MM 07/08/99 Carlton Craighead Skeletal Discharge order 11/12/99
5 13 99-57750 RG 12/06/99 Robert Helwig Skel/install Dism 6/12/00 -- pre-conf
6 13 01-51763 JRG 04/09/99 Robert Helwig Skel/install Dism 8/10/01 -- pre-conf
7 13/7 01-54572 JRG 09/19/01 Carlton Craighead Skeletal Discharge order 12/13/05
8 13 02-55558 ASW 10/01/02 Peter Craighead Skel/install Dism 11/6/02 -- no docs
9 13 02-55569 ASW 10/02/02 David Craighead Skel/install Dism 11/13/02 -- do docs
10 13 02-56751 ASW 01/06/03 Peter Craighead Skel/install Dism 1/24/03 -- do docs
11 13 03-50057 ASW 01/06/03 David Craighead Skel/install Dism 2/10/03 -- no docs
12 13 03-50971 ASW 02/14/03 Peter Craighead Skel/install Dism 4/10/03 -- no docs
13 13 03-52383 ASW 04/11/03 David Craighead Skel/install Dism 5/22/03 -- no docs
14 13 03-53805 JRG 06/11/03 David Craighead Install Dism 7/25/03 -- pre-conf
15 13 03-54164 JRG 06/28/03 Peter Craighead Skel/install Dism 9/28/04 w/ 60 mo bar
16 13 03-55946 JRG 09/10/03 Peter Craighead Skel/install Dism 10/10/03 -- no docs
17 13 06-51924 RLE 09/27/06 Peter Craighead Skel/install Dism 9/29/06 -- no docs
18 13 06-52226 RLE 11/01/06 Patricia Craighead Skel/install Dism 11/20/06 -- do docs
19 13 06-52419 RLE 11/28/06 Patricia Craighead Skel/install Dism 6/17/07 w/ 24 mo bar
20 13 07-50856 RLE 03/26/07 David Craighead Skel/install Dism 5/17/07 -- no docs
21 13 07-51108 ASW 04/18/07 Patricia Craighead Skel/install Dism 6/9/07 -- do docs
22 13 07-51596 ASW 5/29/07 David Craighead Skel/install Pending
The UST asks the Court to take judicial notice of the Objection to Motion to Dismiss and 2-year Bar to Re-filing ("Objection to Two-Year Bar") filed on March 23, 2007, by Patricia Craighead, appearing in propria persona in In re Patricia Craighead, 06-52419-ASW. Debtor did not oppose the UST's request. The Court takes judicial notice pursuant to Fed.R.Evid. 201, made applicable to bankruptcy proceedings pursuant to Fed. R. Bankr.P. 9017. Fed.R.Evid. 201 allows the Court to take judicial notice of its own records and proceedings. This judicial notice encompasses notice of the cases filed in the Court, the dockets of those cases, and the documents filed therein. The Objection to Two-Year Bar directly addresses the serial filings by members of the Craighead family and Robert Helwig and was filed in response to a similar motion to dismiss with a filing bar filed by the UST approximately two months before David Craighead filed the instant case. Based on the similarity of the issues, the closeness in time, and the fact that Debtor has failed to respond on the merits of the Motions, the Court takes judicial notice of the Objection to Two-Year Bar. The Objection to Two-Year *653 Bar provides the background of transfers and bankruptcy filings.
In her Objection to Two-Year Bar, Patricia. Craighead stated that: "All the filings in question were done to protect two real properties from foreclosure: 7119 Via Portada, San Jose, CA, the personal residence of Debtor [Patricia Craighead] and Debtor's spouse [Carlton Craighead], and 7871 Prestwick Cir, San Jose, CA, an 1891 historic mansion that the Debtor's spouse has been trying to renovate and preserve since April, 1995." Objection to Two-Year Bar at 1:25-2:2. The Objection to Two-Year Bar also stated that the "[d]ebtor strongly believes her civil rights to use the federal bankruptcy laws to save her personal residence are being abridged and violated by the U.S. Trustee's motion to dismiss and bar to re-filing." (Emphasis added). Objection to Two-Year Bar at 2:3-5. The Objection to Two-Year Bar also explains that: (1) the nine bankruptcies filed from July 2, 1999 to February 14, 2003 (Numbers 3 -12 in the table above) were filed to protect the Prestwick Property; (2) Debtor [David Craighead] purchased the Via Portada Property for his parents in approximately the year 2000; and (3) the bankruptcies filed from April 11, 2003 to November 28, 2006 (Numbers 13-19 in the table above) were filed to save the Via Portada Property.
Since 1997, the Prestwick Property has been transferred between and among Robert Helwig, Evonne Helwig, Carlton Craighead, Peter Craighead, Theodore Gallis, and Debtor. Carlton Craighead and Peter Craighead currently hold title to the Prestwick Property as tenants in common. Since 2001, the Via Portada Property has been transferred between and among Peter Craighead, Patricia Craighead, Carlton Craighead, Robert Helwig, and Debtor. Robert Helwig currently holds title to the Via Portada Property.
The UST provided the Court with a declaration of Shannon L. Mounger-Lum and a transcript of a deposition of Carlton Craighead, taken during one of his personal bankruptcy cases on April 8, 2002 in In re Carlton Craighead, 01-54572-ASW. The Court takes judicial notice of the deposition transcript pursuant to Fed. R.Evid. 201, made applicable to bankruptcy proceedings pursuant to Fed. R. Bankr.P. 9017. The deposition was taken under oath and discussed how and why Debtor briefly held title to the Prestwick Property from June 30, 2000 to September 19, 2001.
In his deposition, Carlton Craighead testified that he and various parties transferred property to each other for no consideration and for the express purpose of filing bankruptcy so as to prevent foreclosure on properties whose mortgages were delinquent. Specifically, Carlton Craighead testified as follows:
Q: So when you were Grant Deeded the 977 and 979 Prevost, did you pay money or any other kind of consideration for that property?
A: No, I didn't. I didn't pay any consideration. Like I said, it was a move to save this thing from going into foreclosure. . . . I took it because I knew I was going to file bankruptcy so that was going to at least hold that up until we could sort out what we were going to do.
Deposition of Carlton Bertram Craighead dated April 8, 2002 at 22:5-18. At another point in the deposition, Carlton Craighead testified that Debtor came to own the Prestwick Property because the purchasers of the Prestwick Property Robert and Evonne Helwig fell behind in the payments and filed for Chapter 13. Carlton Craighead testified that Evonne quitclaimed the Prestwick Property to Robert and Robert Helwig subsequently transferred the Prestwick Property to *654 Debtor by grant deed. The deed granting the property to Debtor was recorded on June 30, 2000. Debtor received a second loan on the Prestwick Property since Robert Helwig could not qualify for a loan after filing his chapter 13 bankruptcy petition. According to Carlton Craighead, Debtor never paid any money for the acquisition of the Prestwick Property. When the Prestwick Property went into default in August of 2001, Debtor executed a grant deed to transfer the property to Carlton Craighead without any consideration so Carlton Craighead could then file for bankruptcy. The grand deed to Carlton Craighead was recorded on September 19, 2001. Id. at 36:16-37:21; 40:10-41:23.
Debtor, Robert Helwig, Carlton Craighead, Peter Craighead, and Patricia Craighead have all listed the Prestwick Property as their residence on all seventeen of their bankruptcy petitions from April 9, 2001 to the current petition on May 29, 2007 (Numbers 6-22 in the chart above). Even though Debtor listed the Prestwick Property as his residence, an internal investigation by the UST (uncontested by Debtor) indicates that Debtor's likely current address is in Rancho Cucamonga, California not San Jose. Declaration of Brian M. Martinson filed in support of the Motion by the UST, ¶ 5.
There is already a 60-month refiling bar against Debtor's brother Peter Craighead imposed on September 28, 2004 in In re Peter Craighead, 03-54164-JRG. There is also a 24-month refiling bar against Debtor's mother Patricia Craighead, imposed on June 17, 2007 in In re Patricia Craighead, 06-52419-ASW.
II.
ANALYSIS
In the Ninth Circuit, bad faith constitutes cause for dismissal of a Chapter 13 case under § 1307(c) and constitutes cause for dismissal with prejudice under § 349(a). In re Leavitt, 171 F.3d 1219, 1224 (9th Cir.1999). Section 349(a) of the Bankruptcy Code states:
Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.
The phrase "[u]nless the court, for cause, orders otherwise" in Section 349(a) authorizes the bankruptcy court to dismiss the case with prejudice. Leavitt, 171 F.3d at 1223. See also In re Tomlin, 105 F.3d 933, 937 (4th Cir.1997). "Cause" for dismissal under § 349 is not specifically defined in the Bankruptcy Code. For Chapter 13 cases, Bankruptcy Code sections 1307(c)(1) through (10) provide that the bankruptcy court may convert or dismiss, depending on the best interests of the creditors and the estate. Leavitt, 171 F.3d at 1224. Bad faith can constitute cause for dismissal under § 1307(c). Id. Bad faith is determined by the totality of the circumstances including the repeated filing of bankruptcy petitions without the balance of the schedules and plan. In re Stober, 193 B.R. 5 (Bankr.D.Ariz.1996); In re Warren, 89 B.R. 87 (9th Cir. BAP 1988).
Leavitt is the leading Ninth Circuit case on dismissal with prejudice. Leavitt sets forth certain factors to be considered in dismissing a case with prejudice:
Bad faith, as cause for the dismissal of a Chapter 13 petition with prejudice, involves the application of the "totality of the circumstances" test. The bankruptcy court should consider the following factors: (1) whether the debtor "misrepresented *655 facts in his [petition or] plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] plan in an inequitable manner,"; (2) "the debtor's history of filings and dismissals,"; (3) Whether "the debtor only intended to defeat state court litigation,"; and (4) whether egregious behavior is present. (Citations omitted).
Id. at 1224.
Courts generally hold that when a debtor repeatedly files bankruptcy petitions and then repeatedly fails to file schedules or to comply with other requirements, this pattern of behavior is evidence of bad faith and an attempt to abuse the system. Walker v. Stanley, 231 B.R. 343 (N.D.Cal.1999). The Court can determine that a debtor filed a case in bad faith based on a pattern of conduct, and may impute bad faith from the timing and circumstances of the filings. Walker, 231 B.R. at 349; In re Eisen, 14 F.3d 469, 470 (9th Cir.1994); In re Huerta, 137 B.R. 356, 367 (Bankr.C.D.Cal.1992). Once the issue of bad faith is raised, it is the debtor's burden to prove his good faith. In re Leavitt, 209 B.R. 935, 940 (9th Cir. BAP 1997), aff'd, 171 F.3d 1219 (9th Cir.1999) (citing In re Powers, 135 B.R. 980, 997 (Bankr.C.D.Cal.1991)) ("Leavitt II ").
Debtor's position is that all the bankruptcy filings were all legal and there was never a finding of bad faith.[4] Debtor also seems to object to imputing the bankruptcy filings of other family members to Debtor. The UST and Trustee contend that Debtor and other family members have filed multiple bankruptcy cases in bad faith in an effort to hinder or delay creditors.
The Court finds that there is sufficient evidence to consider the multiple bankruptcy filings by Debtor and Debtor's family and Robert Helwig[5] in determining the totality of the circumstances regarding Debtor's bad faith. Various courts in similar circumstances have considered the filings and acts of family members and other real property titleholders when determining bad faith of a debtor. See In re Kinney, 51 B.R. 840, 845 (Bankr.C.D.Cal.1985) (finding that the actions of each family member in filing multiple bankruptcies could be imputed to the rest of the family for purposes of determining abuse of the bankruptcy system); see also In re Feldman, 309 B.R. 422, 427 (Bankr.E.D.N.Y. 2004) (imputing the non-filing spouse's prior abusive filings to the debtor in determining that the debtor's first case was filed in bad faith); In re Wong, 30 B.R. 87, 89 (Bankr.C.D.Cal.1983) (considering husband and wife's separate filings to determine abuse of the bankruptcy system).
Robert Helwig, Carlton Craighead, Peter Craighead, Patricia Craighead, and Debtor have filed seventeen bankruptcy petitions since 2001 using the Prestwick. Property address as their residence. The evidence before this Court is that the Prestwick Property is a renovation project to restore a historic house, and that none of the above-named individuals who filed for bankruptcy actually resided in the property.
This bankruptcy petition appears to have been filed to prevent a foreclosure of *656 the Prestwick Property and/or Via Portada Property. Although Debtor does not hold title to either of the properties and the evidence submitted by the UST shows that Debtor does not live at either of the real properties, Debtor listed the Prestwick Property as his residence in the instant case, as Debtor, Robert Helwig, Carlton Craighead, Peter Craighead, and Patricia Craighead had each done in the previous sixteen bankruptcy petitions.
Furthermore, Carlton Craighead testified under oath that he and various parties transferred property to each other for no consideration for the express purpose of filing bankruptcy and preventing foreclosures on properties. Carlton Craighead also testified that a deed to the Prestwick Property was granted to Debtor from Robert Helwig on June 30, 2000, and transferred again to Carlton Craighead on September 19, 2001 for the purposes of filing bankruptcy. According to the testimony, this transfer occurred only to have Carlton Craighead file for bankruptcy because Debtor refused to file for bankruptcy. Carlton Craighead filed a skeletal petition on September 19, 2001, in In re Carlton Craighead, 01-54572-JRG.
Patricia Craighead also stated in her Objection to Two-Year Bar that all the bankruptcy filings in question were done to protect the. Via Portada and Prestwick Properties from foreclosure. The Objection to Two-Year Bar implies that Patricia Craighead is under the misconception that there is an inherent civil right to use the bankruptcy laws to file multiple bankruptcy cases in order to save one's personal residence.[6] That is simply not the law.
This is the twenty-second bankruptcy case filed by this family and Robert Helwig since 1998. None of the twenty Chapter 13 cases has resulted in a confirmed plan, and all but one of the filings[7] were skeletal filings. The various debtors applied to pay the filing fee in installments in nineteen of the twenty-two cases. Only Carlton Craighead's chapter 7 cases were completed by the issuance of a discharge. The family members and Robert Helwig have managed to impose an automatic stay on creditors by filing multiple and serial bankruptcy petitions for over eight years. The UST and Trustee have had to expend significant resources monitoring and litigating the dismissal of those cases.
Even without considering the multiple bankruptcy filings of Debtor's other family members, there is sufficient cause to find bad faith based solely on the actions of Debtor alone. Under the totality of circumstances test under Leavitt, this Court should consider certain factors such as whether Debtor misrepresented facts in his petition, whether Debtor is unfairly manipulating the Bankruptcy Code, whether Debtor filed this bankruptcy petition in an inequitable manner, Debtor's history of filings and dismissals, whether this bankruptcy case was intended only to defeat state court litigation, and whether there has been any egregious behavior. Here this is Debtor's sixth bankruptcy case in the past five years. All but one of the six cases were skeletal filings. Debtor has also applied to pay all of his filing fees in installments. Of these six cases, five were dismissed prior to confirmation and the sixth is the current case pending; not one has been confirmed. This is also the second case filed by Debtor within the past *657 few months. Each bankruptcy petition listed Debtor's residence as the Prestwick Property. However, evidence shows that Debtor has not held any interest in this real property since November 22, 2002. The uncontested internal' investigation by the UST indicates that Debtor's likely current address is Rancho Cucamonga, California. See Declaration of Brian M. Martinson filed in support of the Motion by the UST, ¶ 5.
Once the issue of bad faith is raised, Debtor has the burden to prove his good faith. Leavitt II, 209 B.R. at 940. Debtor has failed to meet his burden. Debtor's conduct shows a pattern of filing a case and failing to take the necessary steps to move the case forward. Debtor has failed to file schedules under penalty of perjury in this case and in all prior cases. Debtor has never appeared for a section 341(a) first meeting of creditors, so he has never been examined under oath. In short, Debtor has never come close to confirming a plan in any of his six bankruptcy cases.
Furthermore, in response to the Motions, Debtor asked the Court to dismiss this case in his Objection, filed the day before the hearing. Debtor failed to respond on the merits. Debtor failed to appear at the hearing as well. Debtor was given the opportunity to prove his good faith multiple times and Debtor has failed to rebut the bad faith allegation. Based on the facts before the Court, cause exists under the Ninth Circuit authority of Leavitt to dismiss this bankruptcy case and impose a refiling bar against Debtor. Dismissal is in the best interests of Debtor's creditors and Debtor's estate. Indeed, Debtor himself requests that the case be dismissed. A refiling bar is in the interests of Debtor's creditors, especially those creditors with a security interest in the properties Debtor has repeatedly attempted to block from foreclosure.
The Motions request a five-year refiling bar asserting that a five-year bar is needed to deter Debtor from engaging in further abusive filings. Bankruptcy Code section 349 gives the bankruptcy court authority to dismiss a bankruptcy case with a bar preventing a debtor from re-filing in cases of abuse. The Court agrees with the UST and Trustee that a bar to re-filing is appropriate in this case. However, the issue of the length of the bar is a matter for the Court's discretion. See Leavitt, 171 F.3d at 1226.
The Court has decided that a three-year refiling bar is appropriate in this case. While Debtor may have been under the misguided impression that he could use the Bankruptcy Code in the way that he did to block foreclosures on real properties in which Debtor and/or family members had an interest, this Memorandum Decision disabuses Debtor of any possible misunderstanding. This Decision holds that Debtor's conduct constitutes bad faith and an abuse of the Bankruptcy Code. Three years should also be sufficient for any creditors of the Debtor to take whatever actions they deem appropriate pursuant to state law.
III.
CONCLUSION
For the reasons set forth above, this Court grants the motions of both the UST and Trustee to dismiss Debtor's bankruptcy case, and imposes a three-year refiling bar. Counsel for the UST shall prepare a proposed form of order, serve it upon Trustee and Debtor, and submit it to the Court.
NOTES
[1] While Debtor's Objection requested immediate dismissal of his bankruptcy case, dismissal was not granted at the time. Bankruptcy Code § 1307(b) permits dismissal of a bankruptcy case at any time on the request of a debtor if a case has not been previously converted. Per Bankruptcy Rule 1017, such a request "shall be on motion filed and served as required by Rule 9013." Fed. R. Bankr.P. 1017(f)(2). This Court did not construe Debtor's Objection as such a motion, and Debtor's bankruptcy request has not yet been dismissed.
Even if this Court had construed Debtor's Objection as a proper motion to dismiss his bankruptcy case under Bankruptcy Rule 1017(f)(2), this Court could have dismissed Debtor's bankruptcy case in July and retained jurisdiction to determine the request of the UST and the Trustee for a five-year re-filing bar. In re Lawson, 156 B.R. 43, 45-46 (9th Cir. BAP 1993).
[2] The Court has no information as to how, if at all, Robert Helwig is related to the Craighead family.
[3] The Court takes judicial notice of all the filings pursuant to Fed.R.Evid. 201, made applicable to bankruptcy proceedings pursuant to Fed. R. Bankr.P. 9017.
[4] The Objection filed by Debtor the day before the hearing states in relevant part that: "All the filings were 100% legal. All the real property transfers were 100% legal. Not one law was broken, and in all cases, there was never a finding of bad faith." (Emphasis in original). Objection at 2:14-16.
[5] The Court would find bad faith on Debtor's part whether or not Robert Helwig is a family member or had even filed for bankruptcy.
[6] "Debtor strongly believes her civil rights to use the federal bankruptcy laws to save her personal residence are being abridged and violated by the U.S. Trustee's motion to dismiss and bar to re-filing." (Emphasis added). Objection to Two-Year Bar at 2:3-5.
[7] In re David Craighead, 03-53805-JRG. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/376837/ | 618 F.2d 1021
Robert WILLIAMS, Appellant,v.J. R. MARTIN, Warden, and the Attorney General of the Stateof South Carolina, Appellees.
Nos. 77-1058, 78-6569.
United States Court of Appeals,Fourth Circuit.
Argued Aug. 22, 1979.Decided March 6, 1980.
Timothy W. Bouch, Third Year Law Student (Walter Reiser, Randall M. Chastain, University of South Carolina Law Center, Columbia, S. C., on brief), for appellant.
Katherine W. Hill, Asst. Atty. Gen., Columbia, S. C. (Daniel R. McLeod, Atty. Gen., and Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., on brief), for appellees.
Before BUTZNER, HALL and PHILLIPS, Circuit Judges.
BUTZNER, Circuit Judge:
1
The critical issue in this appeal is whether a state court's refusal to furnish an indigent prisoner an expert for the preparation and presentation of his defense was constitutional error. The district court held that it was not and dismissed Robert Williams' petition for a writ of habeas corpus. We reverse because we believe that the appointment of an expert was constitutionally required for Williams' adequate defense against a charge of murder.
2
* Williams shot Phoebe Maybank during a family quarrel over a missing wallet. The wound paralyzed Maybank, and eight months later she died. Williams was initially charged with assault and battery with intent to kill and later with murder. The indictments were consolidated for trial in the General Sessions Court, Charleston County, South Carolina.
3
Williams was indigent. Before trial his court-appointed attorney moved for the appointment, at the state's expense, of an independent forensic pathologist to evaluate medical evidence concerning the cause of Maybank's death. The motion disclosed that the county medical examiner believed Maybank died from a pulmonary embolism resulting from a thrombosis that formed in her leg due to immobilization caused by her paralysis from the gunshot wound. The motion explained that while Williams' attorney had learned from medical books that there are numerous causes of a pulmonary embolism, he was not professionally able to evaluate the evidence and question the medical examiner without consulting a pathologist. He therefore sought authorization to engage a pathologist to examine the autopsy report and perhaps to testify about the "probability that events unrelated to assault and battery" caused Maybank's death. The motion concluded with an estimate that a minimum fee for consultation with a pathologist and for his appearance as a witness would be $400.
4
At the pretrial hearing on the motion, Williams' attorney elaborated on the necessity of consultation with a pathologist because of the eight-month interval between the infliction of the wound and death. He said:
5
There is a rather complex issue of medical causation involved. As best I understand it from my research, there is the cause of death was a blood clot which formed in the leg of the decedent and then was detached and lodged in the pulmonary artery, I believe. I don't know exactly the detail, but the difficulty is that the blood clot in the leg can be caused by a variety of means. The medical examiner informed me that he did not observe any of these other things in his examination of the body and the specimens that he preserved, but it is impossible for counsel to examine those specimens and determine whether or not his assessment is correct and it's important, therefore, that the defendant be appraised and afforded the assistance of the competent expert witnesses to assist counsel in determining whether or not the cause of death as stated by the medical examiner is in fact the true cause of death . . . .
6
After counsel presented the motion, the following colloquy occurred:
7
Judge: I have read your motion. As I understand it, your request, what you are in need of are funds to obtain this information, whether it is good or bad, and you ask the Court to direct that funds be paid? Is that correct?
8
Defense Attorney: Be made available, yes, sir.
9
Judge: Well, I don't have that authority.
10
Defense Attorney: Well, Your Honor, if it pleases the Court, I think the situation is in all respects similar to the situation of a defendant who needs to have a transcript provided for appeal or for other purposes.
11
Judge: Well, that is provided for by law.
12
Defense Attorney: The constitutional principle is the same, I believe, Your Honor, and I submit the motion to the Court.
13
Judge: Well, I can say to you that I can't issue an order directing the Treasurer of Charleston County to pay out this sum of money because, in my opinion, if I issued the order it would be ignored and I know of no funds available to pay for this type of evidence or testimony. So, I am not going to hold out to you that I can do that because I am satisfied that I can't. All I can tell you is what my understanding of the law is, and that is I don't have the authority to direct any money be paid to obtain this type of evidence or testimony from this type of witness. And, lacking that authority, I certainly can't mislead you or your client by stating that I can provide those funds. Now, if you can talk to someone in authority who has funds available and they are agreeable, based on an order of the Court, to pay the money, I will so order it.
14
Defense Attorney: I'll investigate that, Your Honor.
15
Williams' attorney did not renew his motion or advise the court about any further investigations concerning a source of funds to pay the pathologist.
16
At trial the state presented evidence that Williams shot Maybank, that she was unarmed, and that she presented no danger to him. The forensic pathologist testifying on behalf of the state said that Maybank's body was embalmed and buried. Nine days after death the body was exhumed, and he conducted an autopsy. He testified that in his opinion Maybank's death was due to a clot or thrombosis in her leg migrating to her lungs and cutting off the supply of blood to the lungs; her paralysis from the gunshot wound caused the clot; and her body exhibited no other cause for the clot in her leg. The autopsy report stated, "this thrombosis was most probably secondary to her paraplegia which resulted from a gunshot wound of the neck." The doctor explained that the phrase "most probably" indicated the highest degree of medical certainty, although he could not be 100% sure about anything in medicine.
17
Williams contended that Maybank's death did not result from the gunshot wound. He also asserted that he shot in self-defense when Maybank attacked him with a knife. The jury convicted him of voluntary manslaughter, and the court sentenced him to 15 years in prison.
18
Williams' appeal to the Supreme Court of South Carolina assigned error to the trial court's denial of his motion for funds to retain a pathologist. The Court held that a statute1 authorizing payment of expenses of counsel appointed to represent indigents encompassed compensation for expert witnesses when the assistance of an expert is reasonably necessary for a proper defense. It noted that Williams' motion had been denied because of the trial court's erroneous conclusion that funds were not available, but it held that the failure to provide funds did not prejudice Williams. It based its ruling on testimony of the state's pathologist that the autopsy demonstrated to the highest possible degree of medical certainty that the gunshot wound caused death and that Williams had not shown that another pathologist would have aided his defense. See State v. Williams, 263 S.C. 290, 300, 210 S.E.2d 298, 303 (1974).
19
Williams subsequently unsuccessfully sought a writ of habeas corpus in the state courts on the ground that he was denied effective representation because his counsel did not bring to the attention of the trial court the statute authorizing payment of expert witnesses.
20
Williams then twice applied for writs of habeas corpus in the federal district court. In the first he alleged that the denial of his motion for funds to retain a pathologist deprived him of due process of law and denied him equal protection of the law in violation of the fourteenth amendment. In his second petition he alleged that his counsel was ineffective because he did not obtain a pathologist to assist with his defense. With respect to the first petition, the district court held that Williams had not been prejudiced because he had shown only that "he might have found a pathologist who did not share the opinion of the pathologist who testified for the State as to the cause of death." It ruled that the constitution does not mandate "the expenditure of public funds for an indigent defendant to go shopping for a favorable expert witness." The district court denied the second writ, involving the competency of counsel, for essentially the same reasons: Williams had not shown that medical evidence in his behalf was available and "if so, the substance of such testimony." The appeals from denials of both writs were consolidated in this proceeding.
II
21
There can be no doubt that an effective defense sometimes requires the assistance of an expert witness. This observation needs little elaboration. Had Williams been financially able to afford his own defense, competent counsel undoubtedly would have consulted a pathologist. Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system. The American Bar Association standards on providing defense services state:
22
The plan (for providing competent counsel to indigents) should provide for investigatory, expert and other services necessary to an adequate defense. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense participation in every phase of the process . . . .
23
The accompanying commentary notes that "(t)he quality of representation at trial may be excellent and yet valueless to the defendant if his defense requires . . . the services of a(n) . . . expert and no such services are available." ABA Standards, Providing Defense Service, 22-23 (App. Draft 1968). Similarly, a distinguished committee of lawyers, state and federal judges, and academicians reported to the Attorney General that adequate representation of criminal defendants requires in some cases provision for engaging experts in addition to appointment of counsel. The committee stated:
24
The need for such services has been recognized in all well-developed systems of representation for financially incapacitated defendants, both in this country and abroad. Until . . . such services are made available, the procedures in the federal courts can not fairly be characterized as a system of adequate representation. One of the assumptions of the adversary system is that counsel for the defense will have at his disposal the tools essential to the conduct of a proper defense . . . .2
25
Both Congress and the South Carolina legislature have responded to this need by authorizing the provision of funds to indigent defendants for expert services when necessary for an adequate defense. See 18 U.S.C. § 3006A(e); S.C.Code § 17-3-80 (Cumm.Supp.1978).
26
Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965), vacated a judgment denying a motion for collateral relief brought under 28 U.S.C. § 2255. Relying on Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), we recognized that the obligation of the government to provide an indigent defendant with the assistance of an expert was firmly based on the equal protection clause. In Jacobs we held that the obligation arises when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant's position cannot be fully developed without professional assistance. 350 F.2d at 573. The determination of the defendant's need for expert assistance is committed to the sound discretion of the trial judge.
III
27
The trial judge acknowledged Williams' need for assistance, but he denied the motion because he erroneously believed that he lacked authority to furnish an expert at the state's expense. It is quite evident that denial of Williams' motion was not the result of the informed discretion of the trial judge. We therefore must make an independent examination of the record to determine (a) whether a substantial question requiring expert testimony arose over the cause of death, and (b) whether Williams' defense could be fully developed without professional assistance. See Jacobs, 350 F.2d at 573.
28
The cause of Maybank's death was an essential element of the state's case. It could be established by the prosecution only through the testimony of an expert witness. Although the state's pathologist professed confidence in his opinion, despite embalming and the nine-day delay, he acknowledged that generally an autopsy should be performed as soon as possible after death. The pathologist also conceded that it is unusual for a pulmonary embolism to occur as long as eight months after trauma.
29
Thus, the record discloses a substantial question over the cause of death which required expert testimony for its explication. This satisfies the first aspect of the Jacobs test.
30
Jacobs next requires consideration of whether Williams' defense could be fully developed without professional assistance. We must apply the Jacobs test in the light of the Supreme Court's observation that the assignment of a lawyer to an indigent must not be made "under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). Without the services of an expert, Williams' trial counsel could not adequately prepare his case. A complete understanding of the medical factors involved was necessary before a medical layman could effectively question the state's pathologist and test the firmness of his opinion. The handicap under which Williams' counsel was forced to operate while preparing for and cross-examining the state's expert is markedly similar to the situation in Jacobs where we held that the defendant's "position could not be fully developed for lack of available professional assistance." 350 F.2d at 573.
31
The presentation of Williams' defense at trial was also hampered by the absence of a defense expert witness. An expert may have been able to question the accuracy of an autopsy performed after embalming and delay. Furthermore, the record discloses that Maybank had cirrhosis of the liver. A medical textbook cited by Williams' counsel in his brief indicates that cirrhosis and numerous other ailments may cause an embolism. Therefore, it is possible that a pathologist could have expressed an opinion on the likelihood that cirrhosis of the liver or some other disease caused the embolism. Such testimony could well have raised a reasonable doubt concerning the cause of death. Just as the state needed an expert to prove the cause of death, Williams needed an expert to present his defense. It is not incumbent upon Williams to prove under the Jacobs test that an independent expert would have provided helpful testimony at trial. An indigent prisoner who needs expert assistance because the subject matter is beyond the comprehension of laymen should not be required to present proof of what an expert would say when he is denied access to an expert.
32
The state, relying on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), argues that Williams waived any right to relief. Estelle found waiver of a constitutional right because the defendant never objected to the trial court about being tried in prison clothing. Here, in contrast, Williams' counsel did request funds and was affirmatively informed by the trial judge that no funds were available. Moreover, the state asserted in response to Williams' claim of ineffective counsel that "(c)ounsel cannot be personally faulted for being unaware of the South Carolina law providing for such assistance since the trial judge, who has had many years on the bench, was also unaware of the statute."3 Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), on which the state also relies, dealt with an alternative source of assistance that was widely known and easily available. In Williams' case, however, the record discloses no alternative to the state funds requested and denied by the trial judge. Likewise, we conclude that Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), which the state cites, is not controlling because of factual differences. Satterfield concerned the defendant's claim of insanity. Satterfield was able to procure a doctor to testify in his defense, and the state did not introduce evidence available to it that he was sane.
33
Because a substantial question requiring expert testimony arose over the cause of Maybank's death and because Williams' defense could not be fully developed without professional assistance that would have been available to a person who could afford his own defense, Williams has satisfied the dual test prescribed in Jacobs to establish that he was denied equal protection of the law. Furthermore, the trial judge's refusal to provide an expert deprived Williams of the effective assistance of counsel and due process of law in violation of the sixth and fourteenth amendments. Cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir. 1974); Davis v. Coiner, 356 F.Supp. 695 (N.D.W.Va.1973); United States v. Germany, 32 F.R.D. 421 (M.D.Ala.1963).
34
The order dismissing Williams' habeas corpus petition is vacated, and the case is remanded with directions to appoint a pathologist to investigate the cause of Maybank's death. If, with such assistance, Williams can establish that the expert assistance of a pathologist in preparing and presenting his defense was necessary to the adequate presentation of that defense, and might reasonably have affected adjudication of the cause of death, the writ should be granted, subject to retrial in a reasonable length of time. See ABA Standards, Providing Defense Services § 1.5 (App. Draft 1968). Obviously, if the pathologist testifies that there is no reasonable doubt that the gunshot wound caused Maybank's death, Williams will have failed to establish that an expert witness would have assisted in the adequate preparation and presentation of his defense. In that situation, the error caused by the state's failure to appoint an independent expert would be harmless and the conviction will stand. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Jacobs, 350 F.2d at 573.
35
Because Williams failed to object at trial to the jury instruction on self-defense, we affirm the judgment of the district court on that issue. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977); Frazier v. Weatherholtz, 572 F.2d 994, 996 (4th Cir. 1978).
36
Vacated and Remanded for Further Proceedings.
K. K. HALL, Circuit Judge, dissenting:
37
I can agree with the majority decision that upon the facts of this case Williams was denied due process of law and equal protection of the law in violation of the Sixth and Fourteenth Amendments to the Constitution; however, I cannot agree that the fault therefor was with the trial judge. The South Carolina statute, S.C.Code § 17-3-80 (Cum.Supp.1978), which lies at the heart of this case, limits to fifty thousand dollars the total amount of money which may be spent and gives the trial judge considerable discretion in reimbursement of funds to counsel representing indigent criminal defendants. In my view, it was incumbent upon counsel to make his case before the judge that funds were available, that expenses had been (or would be) incurred, and that the circumstances of his case brought it within the terms of the statute.
38
If co-counsel, who was responsible for expert testimony, had been diligent, he would have presented his case to the court in a proper manner. It is no excuse that he was engaged in another case during the three days between arraignment and trial. It is difficult to see how he could have been adequately prepared on any phase of the case under such circumstances. Yet the record fails to show a motion for continuance.
39
I would reverse for ineffective assistance of counsel. That is where the true fault lies.
40
The majority opinion more grievously errs in the relief portion of the opinion.
41
I would reverse and remand for a new trial. Counsel should have the opportunity to make and argue a motion for allowance of expenses for the employment of an independent forensic pathologist to evaluate the medical and scientific causes of the victim's death and to advise counsel during trial. The trial judge would then have an opportunity to make a determination as to whether such relief should be granted.
42
There is more involved in the proper defense of a case than its mere presentation at the trial itself. More often than not the preparation for trial is of greater importance. How is counsel to prepare a defense unless he can secure information upon which to base it? Here he needed to consult an expert to determine whether the state's pathologist was correct in his opinion as to the cause of death. The expert would undoubtedly have been helpful to counsel in understanding the medical testimony, in cross examining the state's expert and in presenting his argument to the court and jury.
43
The majority proposes to let this conviction stand unless ". . . the testimony of the pathologist would have been relevant to (the) defense." As I interpret this phrase, it makes the pathologist's testimony conclusive on the constitutional issue. This is inconsistent with the majority's position that the assistance of an expert was necessary for an adequate defense, regardless of whether the expert would have provided helpful testimony at trial. Maj. op. at 1026-1027. Defense counsel might well have been able to raise a reasonable doubt by astute cross-examination of the state's expert but not without his own expert to advise him.
44
As a practical matter, I wonder if the appointed expert will have enough physical evidence to reach an independent conclusion on the cause of death, or if he will have to base his opinion solely on the state expert's autopsy report. If that is so, and if his opinion agrees with the state expert, the defendant will not get a new trial despite all the majority opinion says about the defendant's constitutional rights. The majority declares: "We reverse because we believe that the appointment of an expert was constitutionally required for Williams' adequate defense against a charge for murder." These are strong words. Appointment of an independent expert to give an opinion is weak action.
45
The majority likens this case to Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965). I find no significant similarity. There the sole issue was the mental capacity of the defendant at the time of trial. Testimony by an expert on that point is subject to the most limited cross examination. The facts in this case call for opinion as to cause of death, and all the defendant needs to do is to raise a reasonable doubt. Under no theory can this be compared to evaluating the results of an I.Q. test to determine whether defendant was mentally competent to stand trial in Jacobs.
46
I cannot see how the majority can say so much and do so little.
1
S.C.Code § 17-3-80 (Cumm.Supp.1978) provides:
Appropriation for expenses of appointed private counsel and public defenders; restrictions and limitations.
In addition to the appropriation in § 17-3-70, there is hereby appropriated for the fiscal year commencing July 1, 1969 the sum of fifty thousand dollars for the establishment of the defense fund which shall be administered by the Judicial Department. This fund shall be used to reimburse private appointed counsel, public defenders, and assistant public defenders for necessary expenses actually incurred in the representation of persons pursuant to this chapter, provided that the expenses are approved by the trial judge. No reimbursement shall be made for travel expenses except extraordinary travel expenses approved by the trial judge. The total State funds provided by this section shall not exceed fifty thousand dollars.
2
Report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, 45-46 (1963)
3
In view of our disposition of the case, we need not address Williams' claim that his counsel was ineffective because he did not obtain a medical witness | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1585379/ | 508 So.2d 644 (1987)
Albert Frank FAGONE, Plaintiff-Appellant,
v.
Charline Dodd FAGONE, Defendant-Appellee.
No. 18765-CA.
Court of Appeal of Louisiana, Second Circuit.
June 10, 1987.
*645 Sholars, Gunby, Allbritton, Hayden & Lawrence by Clifford L. Lawrence, Jr., Monroe, for plaintiff-appellant.
McIntosh, Fox & Lancaster by John M. Lancaster, Oak Grove, for defendant-appellee.
Before JASPER E. JONES, FRED W. JONES, Jr., and LINDSAY, JJ.
JASPER E. JONES, Judge.
The plaintiff, Albert Frank Fagone, instituted this action against defendant, Charline Dodd Fagone, his former wife, seeking to partition immovable community property located in West Carroll Parish. The trial judge sustained defendant's exceptions of no right of action, no cause of action, res judicata and no justiciable interest. Plaintiff appealed.
The Facts
Plaintiff and defendant obtained a divorce on July 2, 1984 in the Common Pleas Court of Montgomery County, Ohio. The Ohio court partitioned all property of the marriage.
Plaintiff subsequently filed a pleading styled "Petition to Partition Community Property" in West Carroll Parish alleging the Ohio courts failed to apply Louisiana law to the partition of a Louisiana farm. Defendant filed exceptions of no right of action, no cause of action, res judicata and no justiciable interest.[1]
The trial court held the final foreign judgment of divorce which incorporates a division of community property is res judicata in all aspects and entitled to full faith and credit, unless the court rendering the judgment lacked jurisdiction or unless the judgment was subject to collateral attack in the rendering state. The trial court found the Ohio judgment of divorce and partition of property was entitled to full faith and credit in Louisiana because the Ohio court had jurisdiction and the judgment was not subject to collateral attack because plaintiff admitted its finality. The trial court, therefore, sustained defendant's exceptions of no right of action, no cause of action, res judicata and no justiciable interest and further concluded the doctrine of judicial estoppel was applicable.
The sole issue on appeal is whether the trial court erred in sustaining defendant's exceptions of res judicata and no cause of action and finding the Ohio decree was entitled to full faith and credit in Louisiana.
Plaintiff contends the trial court erred in sustaining defendant's exceptions of res judicata because in a suit to annul a prior judgment, the judgment itself cannot be urged as res judicata. Plaintiff argues the present action is a suit to annul the Ohio judgment which failed to partition the Louisiana farm pursuant to Louisiana law. He argues immovables in this state are subject to Louisiana law and in a judicial partition, the court must value the assets as of the time of trial under LSA-R.S. 9:2801. Plaintiff contends the Ohio court applied Ohio law and assigned the Louisiana farm a value as of the date of the separation. He argues the farm was worth $50,000.00 less in 1968, when the separation occurred, than it was in 1984, when the trial occurred.
*646 Plaintiff further contends the trial court erred in concluding judicial estoppel was applicable because judicial estoppel does not apply in Louisiana.
Defendant contends the instant action is a suit to partition community property, not a suit to annul a judgment. She argues the trial court was correct in sustaining her exceptions of res judicata and judicial estoppel because under the full faith and credit clause, a foreign judgment of separation or divorce which incorporates a division of community property is final and res judicata unless the foreign court lacked jurisdiction. Defendant contends the Ohio court had jurisdiction because plaintiff made an appearance in the Ohio proceedings.
Applicable Law
Pleadings should be interpreted according to their true meaning and effect in order to do substantial justice, rather than interpreted according to their caption. Cook v. Matherne, 432 So.2d 1039 (La.App. 1st Cir.1983); Bourgeois v. O'Neil, 393 So.2d 390 (La.App. 1st Cir.1980).
Immovable property is governed by the law of its situs and judgments of one state cannot directly affect or determine title to immovable property located in another state. Butler v. Bolinger, 16 La. App. 397, 133 So. 778 (2d Cir.1931); Dickerson v. Scott, 476 So.2d 524 (La.App. 1st Cir.1985). However, while a foreign court may not act directly on title to property, it may affect the parties' dealings with the property and bind them personally. Where a foreign judgment of divorce incorporates a division of community property in a community property settlement, that judgment is final, res judicata and entitled to full faith and credit in other states unless the rendering court lacked jurisdiction or unless a collateral attack against the judgment could be entertained in the rendering state. Article 4, § 1 U.S. Constitution; Shaw v. Ferguson, 437 So.2d 319 (La.App. 2d Cir.1983); Sandifer v. Sandifer, 389 So.2d 767 (La.App. 3d Cir.1980); Swain v. Swain, 339 So.2d 453 (La.App. 1st Cir. 1976); Dickerson v. Scott, supra. The litigant seeking to deny full faith and credit to the foreign judgment based upon the judgment being subject to a collateral attack where rendered has the burden of alleging and proving the basis for the availability of the collateral attack. Didier v. Didier, 230 So.2d 436 (La.App. 1st Cir.1969); Dickerson v. Scott, supra.
Under LSA-C.C.P. art. 2004, which sets forth the exclusive grounds for annulment of a judgment based on defects of substance, a judgment which is contrary to the law is immune from the action of nullity.[2]Fidelity & Casualty Co. of New York v. Clemmons, 198 So.2d 695 (La.App. 1st Cir. 1967); Levy v. Stelly, 254 So.2d 665 (La. App. 4th Cir.1971), writ den., 260 La. 403, 256 So.2d 289 (1972); Zeigler v. Zeigler, 420 So.2d 1342 (La.App. 2d Cir.1982); State v. Beauchamp, 473 So.2d 323 (La.App. 1st Cir.1985), writ den., 477 So.2d 1125 (La. 1985).
In the instant case, plaintiff's petition is styled "Petition to Partition Community Property." Plaintiff alleged in his petition that the Ohio court partitioned Louisiana community property contrary to Louisiana law and, therefore, the judgment can have no effect in Louisiana.
We conclude the trial court was correct in dismissing plaintiff's suit whether it is considered as an action for nullity or an action to partition community property.
The Ohio trial court rendered a judgment of divorce between plaintiff and defendant and partitioned all property owned by them. Plaintiff does not question the jurisdiction of the Ohio court in his petition wherein his sole attack on the Ohio judgment is stated to be that the Ohio court applied Ohio law to the partition of the Louisiana immovable property instead of Louisiana law. Plaintiff submitted to the jurisdiction of the Ohio court by making *647 an appearance.[3] Plaintiff admitted the finality of the Ohio decree in his petition in the instant action. Therefore, the Ohio judgment of divorce which incorporated a division of community property is res judicata and entitled to full faith and credit in Louisiana because the Ohio court had jurisdiction to enter the decree and there has been no assertion that it is subject to a collateral attack other than on the grounds of error of law which we will hereafter address and find without merit.
If plaintiff's petition is construed as an action to nullify the Ohio decree, we conclude the trial court committed no error in sustaining defendant's exception of no cause of action.
At the time the exceptions were under consideration by the trial court the plaintiff did not establish the Ohio law governing an action to annul a judgment. Where the law of another state is not established, it may be presumed that the law of that state is the same as the existing law of Louisiana. Rohring v. Rohring, 441 So.2d 485 (La.App. 2d Cir.1983); Schueler v. Schueler, 460 So.2d 1120 (La.App. 2d Cir.1984), writ den., 464 So.2d 318 (La. 1985).
The exception of no cause of action raises the question of whether any remedy is afforded by law. It is triable on the face of the petition, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. LSA-C.C.P. arts. 927, 931; Evans v. Century Ready Mix Corporation, 446 So.2d 860 (La.App. 2d Cir.1984); Dier v. Hamilton, 501 So.2d 1059 (La.App. 2d Cir.1987).
In the instant case, the only ground for nullity alleged by plaintiff in his petition is that the Ohio judgment is contrary to Louisiana law. A judgment contrary to the law is immune from the action of nullity. Fidelity & Casualty Co. of New York v. Clemmons, supra; Zeigler v. Zeigler, supra; Levy v. Stelly, supra. Therefore, accepting as true plaintiff's allegation that the Ohio decree is contrary to law, the petition states no cause of action because there is no remedy, in the form of an action of nullity, afforded by law to annul the judgment in Louisiana or in Ohio, whose law is presumed to be the same as Louisiana.
For the foregoing reasons, the judgment appealed is affirmed at plaintiff's costs.
AFFIRMED.
NOTES
[1] The plaintiff's petition affirmatively alleged the Ohio divorce judgment containing the community property settlement and that it was a final judgment and the defendant attached to her exceptions a copy of the Ohio divorce judgment which included the judicial partition of the community which judgment was certified in substantial compliance with LSA-C.C.P. art. 1395.
[2] LSA-C.C.P. art. 2004 provides in pertinent part
"A final judgment obtained by fraud or ill practices may be annulled."
[3] The first paragraph of the Ohio judgment states: "This cause came on for final hearing on July 2, 1984 upon plaintiff's complaint for divorce, defendant's answer and the evidence of the parties. The defendant, having been duly served with summons and a copy of the complaint and having filed his answer herein, the court finds that the parties are properly before the court and that it has jurisdiction over the parties and the subject matter. Both parties were present for the final hearing with counsel." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585401/ | 508 So.2d 317 (1987)
DEPARTMENT OF CORRECTIONS, et al., Appellants, Cross/Appellees,
v.
FLORIDA NURSES ASSOCIATION, Appellee, Cross/Appellant.
No. 68986.
Supreme Court of Florida.
May 7, 1987.
Rehearing Denied July 13, 1987.
Robert A. Butterworth, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel, and Arden M. Siegendorf, and George Drumming, Jr., Asst. Attys. Gen., Tallahassee, for appellants, cross/appellees.
Rhea P. Grossman, of Law Offices of Rhea P. Grossman, P.A., Miami, for appellee, cross/appellant.
SHAW, Justice.
The First District Court of Appeal has certified a trial court order as passing on the following question of great public importance requiring our immediate resolution:
WHETHER CHAPTER 85-318, LAWS OF FLORIDA, CREATING THE SELECTED PROFESSIONAL SERVICE,[1] MAY BE CONSTITUTIONALLY APPLIED TO STATE EMPLOYEES WHO HAD PERMANENT STATUS IN THE CAREER SERVICE SYSTEM AS OF OCTOBER 1, 1985? (Footnote added.)
*318 We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.
The trial court found as follows:
1. The 1985 session of the Florida Legislature passed House Bill 1304, enacted as Ch. 85-219, Laws of Florida, and committee substitute for Senate Bill 670, enacted as Ch. 85-318, Laws of Florida. The former enactment became effective July 1, 1985 and purported to exempt from the Career Service System those physicians employed by the DOC and the HRS. Ch. 85-318 which became effective on October 1, 1985, was much more comprehensive than Ch. 85-219. It, too, exempted state employed physicians from the Career Service System and likewise exempted attorneys from the Career Service System. Additionally, it created a new category of state service called the Selected Professional Service (SPS) into which the exempted attorneys and physicians were included.
Among the exempted physicians are members of the professional health care unit for collective bargaining purposes, many of whom are also members of the Florida Nurses Association (FNA), that unit's bargaining representative... .
The FNA positions are covered by a collective bargaining agreement which will expire on June 30, 1987.
.....
Sec. 14 of Art. III requires that "there shall be a civil service system for state employees, except those expressly exempted." Pursuant to the above exemption language, the Legislature has from time to time over the years exempted certain positions from the Career Service System. (See Sec. 110.205(2) generally.) In Part 2 of Ch. 110, F.S. are contained various statutory provisions relating to the Career Service System including Sec. 110.227 which provides in pertinent part that "(A)ny employee who has permanent status in the Career Service may only be suspended or dismissed for cause." Sec. 110.227(1). .. . Provision is also made for a hearing before the State Career Service Commission for a permanent status employee dismissed from state service. Sec. 110.227(5)(a)[.]
The newly created Selected Professional Services Category of the State Civil Service to which all attorney [except attorneys serving as hearing officials] and doctor positions have been transferred makes no provision for dismissal for cause nor does it contemplate any hearings for aggrieved physician or attorney employees. Since October 1, 1985, at least, doctors and lawyers employed by the state, even those who had attained permanent Career Service status, have served at the pleasure of their agency head.
.....
The legislative purpose sought to be achieved in exempting doctors and lawyers from Career Service and placing them in the Selected Professional Services Category is set out in full in Sec. 110.601., F.S. In pertinent part that Section provides that the State's interests will best be served by a system of personnel management which "ensures ... the delivery of high quality performance ... by facilitating the State's ability to attract and retain qualified personnel in these positions, while also providing sufficient management flexibility to insure that the work force is responsive to agency needs."
To achieve this purpose, all state employed doctors and lawyers, probationers and permanent employees alike, were `exempted' from Career Service and transfered en masse to the new category of state service. (Emphasis in original, footnote omitted.)
The trial court held in pertinent part:
1. The establishment by the Legislature of the Selected Professional Services and the assignment of State employed physicians and attorneys to that category of State service is hereby specifically upheld,
(a) as to all physicians and attorneys who have been hired after October 1, 1985;
*319 (b) as to all physicians and attorneys who had not earned permanent status in career service as of October 1, 1985;
(c) as to all persons in the affected classes who had achieved permanent status in the State Career Service System as of October 1, 1985, and who affirmatively choose assignment to the Selected Professional Services after being fully advised of the advantages and disadvantages of such assignment.
2. While the state may assign all state employed physicians and attorneys to the Selected Professional Services category for bookkeeping purposes if it chooses to do so, no state employed physician or attorney who had achieved permanent status in the Career Service System prior to October 1, 1985, may be suspended or discharged except for cause nor may they or any of them be denied the protections afforded in Secs. 110.227 and 110.309, F.S., or any other statutory section designed to protect the rights of permanent state employees.[2] (Footnote added.)
Appellants argue that chapter 85-318 is a legitimate exercise of legislative authority. Appellee asserts, however, that the en masse reclassification of physicians from Career Service to Selected Professional Service is an unconstitutional violation of substantive due process and equal protection guarantees. The parties agree that there is no fundamental right or suspect class involved and that the rational basis test should be applied in determining the validity of chapter 85-318.[3] Thus, the legislation here must be upheld if it bears a rational and reasonable relationship to a legitimate state objective and is not arbitrary or capriciously imposed. See Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla. 1981); In re Estate of Greenberg, 390 So.2d 40 (Fla. 1980); United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla. 1979); and Golden v. McCarty, 337 So.2d 388 (Fla. 1976).
The stated purpose of chapter 85-318 is to create a personnel management system which "ensures ... the delivery of high quality [attorney and physician] performance ... by facilitating the State's ability to attract and retain qualified personnel in these positions." Ch. 85-318, Laws of Fla. The legislature seeks to achieve this goal by providing greater pay and benefits to Selected Professional Service members than are provided to Career Service members. Additionally, the legislature seeks to create a work force responsive to agency needs by providing that the personnel shall work at the pleasure of their agency head. These means are reasonably related to the legislature's goal of creating a highly qualified and responsive staff of selected professionals. "[W]e do not concern ourselves with the wisdom of the Legislature in choosing the means to be used, or even with whether the means chosen will in fact accomplish the intended goals; our only concern is with the constitutionality of the means chosen." Lasky v. State Farm Insurance Co., 296 So.2d 9, 15-16 (Fla. 1974). "The Legislature has a great deal of discretion in determining what measures are necessary for the public's protection, and this Court will not, and may not, substitute its judgment for that of the Legislature insofar as the wisdom or policy of the act is concerned." Hamilton v. State, 366 So.2d 8, 10 (Fla. 1979).
The trial court found that the legislature's employment policy in originally placing physicians and attorneys in Career Service is the same as the policy now supporting reclassification of these professionals as Selected Professional Service members. The court determined that "a vested right *320 may not be taken away for the same reason it was first bestowed." The fact, however, that the legislature has enacted statutes with substantially similar goals, but has employed different means of achieving those goals, does not, in and of itself, deprive either statute of a rational basis.
The trial court also found that
permanent members of the state employed physician and attorney classes had more than a "property interest" in their jobs as of the effective date of the "exemption"... . Their rights to continued state employment had vested by statute on the effective date of Chap. 85-318, F.S... .
While the Legislature was not and is not prevented from amending a statute merely because rights have accrued thereunder, in amending a statute under which a vested right has accrued, the Legislature may not thereby interfere with rights which have vested under the original statute. State ex rel. Warren v. Miami, [153 Fla. 644, 15 So.2d 449 (1943)]. (Emphasis in original.)
The court's reliance on Warren is misplaced. That case involved a widow's pension rights established by judgment. It is undisputed that tenured employees acquire a property right in their employment. See e.g. Headley v. Baron, 228 So.2d 281 (Fla. 1969). There are, however, no vested or contractual rights in the continuation of legislatively created employment once that employment is legislatively abolished. State ex rel. McIver v. Swank, 152 Fla. 565, 12 So.2d 605 (1943).
Swank involved rights of tenured employees acquired under the civil service system of Panama City. The city commissioners were authorized to discharge economically "excessive" tenured employees without cause, but were required to rehire these employees in order of seniority when new vacancies occurred or positions were created. After several "excessive" employees were discharged, the civil service law of Panama City was repealed, abolishing all positions created thereunder. A new civil service system was then established. The "excessive" employees discharged under the old system were not rehired. We held that there are "no vested or contractual rights to office or employment, after the Legislature has acted so as to cut them off." Id. at 609 (citation omitted). See also State ex rel. Gibbs v. Couch, 139 Fla. 353, 190 So. 723 (1939); City of Jacksonville v. Smoot, 83 Fla. 575, 92 So. 617 (1922).
The reclassification of professionals into a Selected Professional Service reflects a policy decision of the legislature. There is no suggestion, nor given its scope is it likely, that this is a bad faith subterfuge to discharge or deny rights to an employee or group of employees in violation of civil service rules. Arnold v. State ex rel. Mallison, 147 Fla. 324, 2 So.2d 874 (1941). A tenured employee's right to continued employment during good behavior is contingent upon the continued existence of the employment. Any expectation that Career Service, or any particular position therein, will exist for infinity, is at most a mere hope. Implicit in the employment arrangement is the possibility that one day the legislature may consider such employment no longer consistent with the public welfare. "The inhibitions of the Constitutions of the United States upon the deprivation of property without due process, or the equal protection of the law by the states, are not violated by the legitimate exercise of legislative power in securing the health, safety, morals and general welfare." Powell v. State, 345 So.2d 724, 725 (Fla. 1977). We note that each professional in the instant case was given the opportunity to remain in the career service in any position for which he was qualified, albeit not as an attorney or physician since those positions no longer exist in Career Service.
Accordingly, we answer the certified question in the affirmative, and hold that Chapter 85-318 may be constitutionally applied to state employees who had permanent status as of October 1, 1985. We reverse those portions of the lower court's judgment which conflict with the opinions expressed herein.
It is so ordered.
*321 McDONALD, C.J., and OVERTON, EHRLICH and BARKETT, JJ., and ADKINS, J. (Ret.), concur.
NOTES
[1] Chapter 86-149, Laws of Florida, changes the name of Selected Professional Service to Selected Exempt Service and transfers several hundred Senior Management employees to the Selected Exempt Service.
[2] The parties do not challenge that portion of the trial court's order finding that collective bargaining agreements in effect October 1, 1985, shall remain in full force until expiration notwithstanding Chs. 85-219 and 85-318.
[3] Appellee initially argued that the placement of doctors into a classification separate from other medical personnel is "suspect" in that it treats allegedly similarly situated persons differently. A "suspect" class, such as those based on race, nationality, or alienage, is subject to the strict scrutiny test. In re Estate of Greenberg. But as appellee conceded at oral argument, doctors are not a "suspect" class as that term is traditionally used in discrimination actions. The use of the word "suspect" in the instant case is inappropriate and does not support application of the strict scrutiny test in this instance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455312/ | 640 F. Supp. 2d 519 (2009)
In the Matter of the Arbitration Between TIG INSURANCE COMPANY, Petitioner/Cross-Respondent,
v.
GLOBAL INTERNATIONAL REINSURANCE COMPANY, LTD., Respondent/Cross-Petitioner.
No. 09 Civ. 1289(JSR).
United States District Court, S.D. New York.
August 7, 2009.
*520 Sean Thomas Keely, Lovells, LLP, New York, NY, Amy B. Kelley, James I. Rubin, Butler Rubin Saltarelli & Boyd LLP, Chicago, IL, for Petitioner/Cross-Respondent.
MEMORANDUM ORDER
JED S. RAKOFF, District Judge.
Because an arbitrator is not required to proceed in formal fashion or to give reasons for his rulings, his decisions may often appear arbitrary, especially to the non-prevailing party. But having chosen to forego the procedural punctiliousness and reviewable reasoning of a court of law, the loser is hard-pressed to complain if there is even a colorable justification for the result. Here, the losing party got all that it bargained for when it elected arbitration.
Global International Reinsurance Company, Ltd. ("Global") and TIG Insurance Company ("TIG") are parties to a reinsurance agreement pursuant to which Global agreed to indemnify TIG for certain losses. In a previous Order dated October 30, 2008, the Court confirmed an arbitrator's award granting TIG's motion for partial summary judgment on the basis that Global had entered into a settlement agreement that released its right to audit and dispute TIG's claims for certain of those losses. Global then asserted before the arbitrator that TIG had fraudulently induced it to enter into that release and settlement agreement, or, alternatively, that TIG had allocated the disputed claims in bad faith; but the arbitrator, in a one-sentence order, rejected those assertions as well. Global now petitions this Court to vacate the arbitration award pursuant to sections 10(a)(3) and 10(a)(4) of the Federal Arbitration Act, and TIG cross-petitions to confirm the award.
By way of background, Global agreed to reinsure TIG for certain losses pursuant to a Loss Reserve Reinsurance Agreement (the "LPT Agreement") with an aggregate limit of $315 million. Declaration of Christopher Paul Anton ("Anton Decl.") Ex. 20, Tab R, Art. V. A sublimit, which has been exhausted, capped Global's exposure for *521 certain losses at $25 million. Id. Art. XII. In 1999, the parties disputed the scope of the sublimit, and on September 23, 2002 an arbitration panel agreed with TIG's interpretation. Id. Ex. 20, Tab A.
In accordance with that decision, TIG undertook to have its auditor, Buxbaum Loggia & Associates ("Buxbaum"), perform an audit (the "Buxbaum Audit") to ensure that claims were properly coded in accordance with the arbitration panels' ruling. Anton Decl. Ex. 20, Tab V. In connection with that audit, TIG prepared a written protocol that set forth the procedure for allocating losses. Id. The protocol expressly noted that there was at least some subjectivity involved in both the original underwriters' assignment of premium codes and in the claims coders' assignment of codes. See, e.g., id. at 10 (identifying "[o]ne additional area in which a claims coder would have had the opportunity to make a choice that would affect the [code] ultimately assigned to the claim . . ."). TIG forwarded the protocol to Global, and solicited "any comment that [Global] may have regarding the methodology that TIG intends to employ in creating and verifying accuracy" of the proposed audit. Id. Global did not provide any comments, objections, or feedback on the protocol. TIG represented to Global and the arbitration panel that the Buxbaum Audit was "exhaustive" and based on a "carefully developed methodology" for "ensuring that the claims were properly coded." Id. Ex. 1 at 1-2.
The results of the Buxbaum Audit, which TIG provided to Global in February 2003, showed, inter alia, that out of 1,118 audited claims valued at approximately $130 million, 162 claims with an incurred value of approximately $14 million had been miscoded as falling outside of the sublimit and 48 claims with an incurred value of approximately $7 million had been miscoded as falling inside the sublimit. Id. Ex. 20, Tab Q. TIG represented to Global that the Buxbaum Audit was accurate and that TIG had corrected the identified coding errors. Id. Ex. 13 ¶ 5. In March 2003, TIG forwarded to Global a Fourth Quarter 2002 Loss Report, which incorporated the results of the audit. Declaration of Sean Thomas Keely ("Keely Decl.") Ex. A at Ex. 4. Although the prior order of the arbitration panel required Global to object to any quarterly report within seven days, Anton Decl. Ex. 6, Global never objected to or reserved its rights with respect to the Fourth Quarter 2002 Loss Report.
On May 13, 2004, the parties entered into a Settlement Agreement that dismissed with prejudice all claims raised but not resolved in the parties' ongoing arbitration proceedings and incorporated the arbitration panel's September 23, 2002 interpretation of the sublimit. Id. Ex. 20, Tab B. Paragraph 14 of the Settlement Agreement required TIG to audit a statistically representative sample of Global's claim to ensure that those claims were coded in a manner consistent with the September 23, 2002 Order. Id. Ex. 20, Tab B at ¶ 14. The Settlement Agreement also provided that, in any subsequent arbitration proceeding (including the one underlying this action), "[t]he arbitrator shall be relieved of all judicial formality and shall not be bound by the strict rules of law." Id. ¶ 21.
Later in 2004, Global sought to amend the Settlement Agreement to permit Global to review the allocation of pre-2003 losses, together with additional losses reported between January 1, 2003 and March 15, 2004 that had not previously been reviewed as part of the first audit. Id. Ex. 20, Tab E. On July 28, 2004, David Thirkill of TIG informed Manjo Karnani of Global by e-mail that the Settlement Agreement had foreclosed Global's right to audit pre-2003 claims. See id. ("We had *522 a deal. Whatever the words say, that deal was to draw a line in the sand and to move forward"). On July 29, 2004, Mr. Thirkill sent another e-mail to Mr. Karnani that served "as a clarification of Section 14 (audit scope) of the Settlement Agreement," noting that, with certain exceptions, "[n]o other claim reported to TIG prior to 12/31/02 shall be subject to review in any future audit." Id. Ex. 20, Tab C. Global agreed. Id.
In March 2005, TIG conducted the audit required by the Settlement Agreement. Id. Ex. 20, Tab O ¶¶ 9-10. Approximately 33% of the 64 claims reviewed were miscoded or lacked sufficient information to verify the coding. Id. ¶¶ 13-14. Global thereafter retained Edward McKinnon of Claims Resource Management, Inc. to conduct an independent inspection of TIG's records pursuant to paragraph 11 of the Settlement Agreement. Id. Ex. 20, Tab O ¶ 19. McKinnon determined that 222 of 494 claims reviewing during its audit were miscoded, amounting to approximately $18 million that should have been subject to the sublimit. Id. Ex. 14, ¶¶ 2, 7, 10. McKinnon noted that 62 of these miscoded claims were previously audited by Buxbaum, which "either failed to recognize that TIG had miscoded the claims or erroneously determined that the claims should be recoded." Id. Ex. 14, ¶ 19(e).
In October 2007, Global served a demand for arbitration on TIG, alleging, inter alia, that TIG had miscoded and misallocated the pre-2003 claims in bad faith and that it had fraudulently concealed its coding and allocation errors in order to induce Global to enter into the Settlement Agreement. Id. Ex. 2. On October 28, 2008, TIG moved in the arbitration proceedings for summary judgment on Global's fraud and bad faith claims. The parties fully briefed the issues, TIG submitted 35 exhibits in support of its motion, and Global submitted 3 declarations and 23 exhibits in response. See id. Ex. 20, Keely Decl. Exs. A and B. The arbitrator heard oral argument on December 16, 2008, and on December 30, 2008, the arbitrator granted TIG's motion and dismissed Global's fraud and bad faith claims. Id. Ex. 19. Global's petition to vacate the arbitrator's award then followed.
An arbitrator's decision is entitled to "great deference," and Global thus "bears the heavy burden of showing that the award falls within a very narrow set of circumstances delineated by statute and case law" that warrant vacatur. Duferco Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir.2003). Indeed, as a general matter, this Court is required to enforce the arbitration award as long as there is a "barely colorable justification for the outcome reached." Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255, 260 (2d Cir.2003) (citation and quotation omitted); see ReliaStar Life Ins. Co. of New York v. EMC Nat'l Life Co., 564 F.3d 81, 86 (2d Cir.2009) ("as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority," a court's conviction that the arbitrator has "committed serious error" in resolving the disputed issue "does not suffice to overturn his decision") (citations and quotations omitted); see also White v. Local 46 Metallic Lathers Union and Reinforcing Iron Workers of New York City, 01 Civ. 8277, 2003 WL 470337, at *5 (S.D.N.Y. Feb. 24, 2003) ("mistakes of fact, errors of law, inadequate reasoning or even arbitrary determinations" do not constitute grounds for vacating an arbitration award).
The specific provisions under which Global here seeks vacatur are no less demanding. In particular, section 10(a)(3) of the Federal Arbitration Act authorizes vacatur of an arbitration award *523 only in cases "where the arbitrators were guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced." 9 U.S.C. § 10(a)(3). Although arbitrators "must give each of the parties to the dispute an adequate opportunity to present its evidence and argument," there is no requirement that they follow the Federal Rules of Civil Procedure or the Federal Rules of Evidence, and vacatur under this section is warranted only in those rare circumstances where the arbitrator's conduct "amounts to fundamental unfairness." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20-21 (2d Cir.1997). Moreover, Global must demonstrate that the error complained of "was made in bad faith or was so gross as to amount to affirmative misconduct." Local 530 v. District Council No. 9, 99 Civ. 2703, 1999 WL 1006226, at *2 (S.D.N.Y. Nov. 5, 1999) (citations and quotations omitted).
In arguing that it meets these exacting standards, Global contends that the arbitrator in granting summary judgment improperly resolved factual issues without a fully developed factual record and without the benefit of discovery and witness testimony. Arbitrators, however, have "great latitude to determine the procedures governing their proceedings and to restrict or control evidentiary proceedings," Supreme Oil Co., Inc. v. Abondolo, 568 F. Supp. 2d 401, 408 (S.D.N.Y.2008), and thus may proceed "with only a summary hearing and with restricted inquiry into factual issues." AT & T Corp. v. Tyco Telcoms (U.S.) Inc., 255 F. Supp. 2d 294, 303 (S.D.N.Y.2003); Areca, Inc. v. Oppenheimer & Co., 960 F. Supp. 52, 55 (S.D.N.Y. 1997). It may also be noted that here the Settlement Agreement itself explicitly provided that the arbitrator "shall be relieved of all judicial formality and shall not be bound by the strict rules of law." Anton Decl. Ex. 20, Tab B, ¶ 21.
It is undisputed, moreover, that after TGI had submitted 35 exhibits in support of its motion for summary judgment, Global was given an unrestricted opportunity to respond, which it did by submitting 23 exhibits, three sworn declarations, and substantial written briefing. The arbitrator also heard extensive oral argument from the parties before rendering a decision. See Anton Decl. Ex. 17. This was thus far from a fundamentally unfair hearing.
Global also argues that the arbitrator had before him various items of evidence that purportedly raised genuine issues of material fact, precluding summary judgment. Despite Global's attempt to portray this as a deprivation of a fair hearing or as a manifest disregard of the law, it really amounts to a claim that the arbitrator ignored relevant evidence. Such arguments must fail, because the law "does not recognize manifest disregard of the evidence as proper ground for vacating an arbitrator's award." Wallace v. Buttar, 378 F.3d 182, 193 (2d Cir.2004) (citation and quotation omitted).
Finally, Global argues that the arbitrator, in holding that the release of the pre-2003 claims in the Settlement Agreement barred Global's claim that the Settlement Agreement was fraudulently obtained, manifestly disregarded the law that a fraudulently obtained contract is void. Global Mem. at 22. However, the judicially-created doctrine of manifest disregard of the lawto the extent it still exists, see Stolt-Nielsen v. AnimalFeeds Int'l, 548 F.3d 85, 93 (2d Cir.2008), cert. granted, ___ U.S. ___, 129 S. Ct. 2793, 174 L. Ed. 2d 289 (2009)is confined to "those exceedingly rare instances where some egregious impropriety on the part of the arbitrators is apparent." Duferco Int'l *524 Steel Trading, 333 F.3d at 389. Here, in a situation where Global was unquestionably aware of prior miscodings and misallocations on TIG's part, one can reasonably assume that the arbitrator, in granting judgment summarily, applied the well-established doctrine of applicable New York law that a claim for fraudulent inducement will not lie where the allegedly defrauded party is on notice from prior disclosures of the likely existence of the allegedly concealed information on which the claim of fraudulent inducement is based. See, e.g., Lumber Indus., Inc. v. Woodlawn Furniture Corp., 26 A.D.2d 924, 924-25, 274 N.Y.S.2d 813 (1st Dep't 1966); see also, e.g., Kirkwood v. Nakhamkin, 169 A.D.2d 693, 565 N.Y.S.2d 75 (1st Dep't 1991). Thus, there is no basis for asserting manifest disregard of the law.
Accordingly, for all of the foregoing reasons, the Court hereby grants TIG's petition to confirm the award and denies Global's petition to vacate the award. The Clerk of the Court is directed to enter final judgment.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299343/ | 616 S.E.2d 594 (2005)
NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, Petitioner-Appellee,
v.
Sharon F. GREENE, Respondent-Appellant.
No. COA04-1261.
Court of Appeals of North Carolina.
August 16, 2005.
Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.
Alan McSurely, Chapel Hill, for respondent-appellant.
*596 McGEE, Judge.
Sharon F. Greene (respondent) appeals from the trial court's order reversing an *597 order of the State Personnel Commission (the SPC) and affirming the action of the North Carolina Department of Crime Control and Public Safety (petitioner) in declining to promote respondent to a Personnel Analyst I position.
A Personnel Analyst II employee resigned from employment with petitioner in October 2002. Weldon Freeman (Freeman), petitioner's Personnel Director, posted the job opening as a Personnel Analyst I position. Respondent applied for the Personnel Analyst I position on 25 October 2002. Respondent was forty-six years old, had more than twenty years of experience in State government personnel administration, and was employed by petitioner as a Personnel Technician III/EEO Officer. In this role, respondent supervised two employees, including Shawnda Brown (Brown). Respondent had hired Brown to work for petitioner one year previously.
Brown also applied for the Personnel Analyst I position. Brown was thirty-nine years old, had obtained a B.A. from the University of South Florida, and had approximately six and a half years of experience in various personnel administration positions. A third person also applied for the position.
Each applicant was interviewed by a panel of three. The panel consisted of Freeman, Human Resources Partner Jerry McRae (McRae), and Director of Personnel Hanna Gilliam (Gilliam). Each interview lasted between thirty and forty-five minutes and each applicant was asked the same twenty questions. Gilliam asked the first seven questions, McRae asked the next nine questions, and Freeman asked the last four questions. At the conclusion of each interview, the applicant completed a ten-minute writing exercise. The selection criteria was based fifty percent on the interview, twenty-five percent on the writing exercise, and twenty-five percent on the applicant's work history.
Following each interview, the panel discussed the applicants' responses and writing exercises and gave each applicant a numerical score. Respondent received a score of thirty-one, the third applicant received a score of thirty-two, and Brown received a score of thirty-nine. Freeman sent an email announcement on 7 November 2002 stating that Brown was selected for the Personnel Analyst I position.
Crystal Goodman (Goodman), a Human Resources Associate, received Brown's Personnel Action Clearance package for processing. Goodman told McRae that she questioned the package because she did not believe that Brown was qualified for the Personnel Analyst I position. McRae reviewed Brown's application and determined that Brown should be given credit for two years of relevant experience based on her previous employment in the personnel department of Sam's Club. McRae's supervisor, Nellie Riley, and State Personnel Director Thom Wright signed off on McRae's decision.
Respondent filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings on 21 November 2002. Respondent alleged that petitioner discriminated against her on the basis of her age when it selected Brown, a younger applicant, over respondent for the Personnel Analyst I position. A hearing was held on 29 August 2003 before an Administrative Law Judge (ALJ). The ALJ found that petitioner did discriminate against respondent because of respondent's age. The ALJ ordered that petitioner instate respondent to the Personnel Analyst II position; adjust respondent's employment record to reflect respondent as being a Personnel Analyst II as of 29 October 2002; remit all back pay, raises and other benefits respondent would have received; and pay respondent's reasonable attorney's fees. The SPC adopted, in total, the ALJ's decision and remedies. Petitioner filed a Petition for Judicial Review of the administrative decision of the SPC on 12 December 2003 with the trial court. The trial court reversed the final decision of the SPC. The trial court also affirmed the action of petitioner in declining to promote respondent to the Personnel Analyst I position.
We note at the outset that since respondent has failed to present an argument in her brief in support of assignment of error number eight, we deem it abandoned. N.C.R.App. P. 28(b)(6).
*598 I.
Respondent first contends that the trial court erred when it failed to limit its application of the whole record test in determining whether the decision of the SPC was supported by substantial competent evidence in view of the entire record and had a rational basis in the record. Under North Carolina's Administrative Procedure Act, a trial court may reverse or modify a SPC decision
if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under [N.C. Gen.Stat. §] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
N.C. Gen.Stat. § 150B-51(b) (2003). Our Supreme Court has directed that the first four grounds for reversal or modification are "law-based" inquiries that receive de novo review. N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004). The last two grounds are "fact-based" inquiries and are reviewed under the whole record test. Id.
At the trial court, petitioner argued that the ALJ's findings of fact, as adopted by the SPC, were not supported by substantial evidence. Therefore, the trial court was to apply the whole record test when it reviewed the SPC's decision. N.C. Gen.Stat. § 150B-51(b)(5); see also King v. N.C. Environmental Mgmt. Comm., 112 N.C.App. 813, 816, 436 S.E.2d 865, 868 (1993).
Application of the whole record test "requires the examination of all competent evidence to determine if the administrative agency's decision is supported by substantial evidence." Rector v. N.C. Sheriffs' Educ. and Training Standards Comm., 103 N.C.App. 527, 532, 406 S.E.2d 613, 616 (1991). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Walker v. N.C. Dept. of Human Resources, 100 N.C.App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The whole record test requires that the trial court take all evidence into account, including the evidence that both supports and contradicts the agency's findings. Leiphart v. N.C. School of the Arts, 80 N.C.App. 339, 344, 342 S.E.2d 914, 919, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). When the agency's findings of fact are not supported by substantial evidence, the trial court may make its own findings of fact that may be "at variance with those of the agency." Scroggs v. N.C. Justice Standards Comm., 101 N.C.App. 699, 702-03, 400 S.E.2d 742, 745 (1991). "However, the `whole record' test is not a tool of judicial intrusion" and a court is "not permitted to replace the agency's judgment with [its] own, even though [it] might rationally justify reaching a different conclusion." Floyd v. N.C. Dept. of Commerce, 99 N.C.App. 125, 129, 392 S.E.2d 660, 662, disc. review denied, 327 N.C. 482, 397 S.E.2d 217 (1990).
In her first two assignments of error, respondent argues that the trial court misapplied the whole record test when it determined whether the SPC's findings of fact were supported by substantial competent evidence. Respondent contends that the trial court erred by independently weighing the evidence of record and thus exceeded its role of determining whether the SPC's findings had a rational basis in the record. However, we determine that due to a violation of our Rules of Appellate Procedure, we cannot review this assignment of error.
This Court's review is "limited by properly presented assignments of error and exceptions." N.C. Dept. of Correction v. Hodge, 99 N.C.App. 602, 609, 394 S.E.2d 285, 289 (1990). Under N.C.R.App. P. 10(c)(1), "[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question *599 is made, with clear and specific record or transcript references." (emphasis added). Failure to comply with the Rules of Appellate Procedure subject an appeal to dismissal, since "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant." Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).
In the case before us, respondent's assignments of error are extremely broadsided. None of the assignments of error are followed by citations to the record or transcript. More importantly, none of the assignments of error specify which findings respondent challenges. As a result, we are unable to determine which findings of fact respondent specifically contends evidence misapplication of the whole record test. We are thus unable to address respondent's first two assignments of error.
Similarly, in assignment of error number four, respondent argues that "[t]he trial court erred when it substituted its judgment for the special expertise of the [SPC] in determining whether [Brown] was `qualified' for the position." This assignment of error is also not followed by any citation to the record or transcript, nor does it indicate which finding or findings respondent challenges. Several of the ALJ's and the trial court's findings of fact discuss Brown's qualifications for the position. We cannot determine which findings of fact respondent challenges and therefore cannot review this assignment of error.
In assignments of error numbers three and seven, respondent specifically cites the ALJ's finding of fact number 25 and the trial court's finding of fact number 38. Therefore, we are able to conduct a meaningful review of assignments of error numbers three and seven.
In those two assignments of error, respondent contends that the trial court erred when it replaced the ALJ's finding of fact number 25. The finding of fact stated that Freeman and McRae were not credible when they testified about Brown's qualifications and previous personnel experience:
25. Based on the undersigned's observations of [Freeman] and. . . McRae, neither witness was credible when questioned about [Brown's] qualifications and the evidence that her clerical experience in the Sam's Club and Fayetteville personnel departments did not approach the minimal qualification requirements for even the Personnel Analyst I position.
On review, the trial court made the following finding of fact:
38. Given that the interview panel had approximately seventy (70) years of combined experience in personnel functions and were serving or had served in top level personnel management positions, [the trial court] finds that the ALJ's Finding of Fact No. 25 relating to the "credibility" of . . . Freeman and . . . McRae is not supported by the record as a whole.
We agree that the trial court erred in finding that the ALJ's determination of the witnesses' credibility was not supported by the record. "The credibility of the witnesses and the resolution of conflicts in their testimony is for the [agency], not a reviewing court[.]" In re Wilkins, 294 N.C. 528, 549, 242 S.E.2d 829, 841 (1978); see also White v. N.C. Bd. of Examiners of Practicing Psychologists, 97 N.C.App. 144, 154, 388 S.E.2d 148, 154, disc. review denied, 326 N.C. 601, 393 S.E.2d 891 (1990). On review of an agency's decision, a trial court "is prohibited from replacing the Agency's findings of fact with its own judgment of how credible, or incredible, the testimony appears to [the trial court] to be, so long as substantial evidence of those findings exist in the whole record." Little v. Board of Dental Examiners, 64 N.C.App. 67, 69, 306 S.E.2d 534, 536 (1983).
In this case, although the trial court impermissibly replaced the ALJ's judgment of the credibility of Freeman and McRae with its own, we find that this error was not prejudicial. The ALJ's finding of incredibility concerned the issue of whether Brown was qualified for the position. The finding had no bearing on the ultimate issue in the case: whether respondent was the victim of age discrimination. We find that the error did *600 not affect the outcome of the case and overrule this assignment of error.
II.
In assignments of error numbers five and six, respondent contends that the trial court erred when it substituted its judgment for that of the SPC and concluded as a matter of law that respondent had failed to establish a prima facie case of age discrimination. The trial court concluded that respondent had failed to establish a prima facie case of age discrimination because the age difference between respondent and Brown was not "substantial."
Respondent first argues that the trial court erred in making conclusions of law in conflict with the ALJ's conclusion of law number seven, as adopted by the SPC. The ALJ's conclusion of law number seven stated that respondent established a prima facie case of age discrimination "by proving: [1] she applied for and was qualified for a vacant position, [2] she was rejected, [3] she was over 40 years of age, [4] after she was rejected the employer filled the position with a younger employee below 40 years of age." Respondent argues that petitioner did not except to this conclusion of law at the trial court, and therefore waived review of the issue. We disagree. In its petition for judicial review, petitioner specifically excepts to many of the ALJ's conclusions of law, as adopted by the SPC, that support the conclusion that respondent had established a prima facie case of age discrimination. Furthermore, petitioner drafted recommended conclusions of law, which state: "[Respondent] did not establish a [prima facie] case. . . . [Respondent] has failed to meet her burden of proving that she was denied the promotion to Personnel Analyst I on account of her age." We find that petitioner properly excepted to the conclusion of law and we may review this issue on appeal.
Respondent argues that the trial court erred in concluding as a matter of law that respondent had not established a prima facie case of age discrimination. We apply de novo review to a trial court's conclusions of law. Campbell v. N.C. Dep't of Transp., 155 N.C.App. 652, 660, 575 S.E.2d 54, 60, disc. review denied, 357 N.C. 62, 579 S.E.2d 386 (2003).
The United States Supreme Court has established a scheme by which employees may prove discrimination in employment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see also Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 142, 120 S. Ct. 2097, 2105-06, 147 L. Ed. 2d 105, 116 (2000) (applying the McDonnell Douglas framework to an age discrimination case); and Dept. of Correction v. Gibson, 308 N.C. 131, 136-37, 301 S.E.2d 78, 82-83 (1983). Under this framework, an employee must first establish a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S.Ct. at 2105-06, 147 L.Ed.2d at 116. Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to prove a legitimate, non-discriminatory basis for the employer's action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 678. If the employer succeeds, the burden shifts back to the employee to show that the employer's reason for the action is a mere pretext for discrimination. Id. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679. However, "`[t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [employee] remains at all times with the [employee].'" Reeves, 530 U.S. at 143, 120 S.Ct. at 2106, 147 L.Ed.2d at 117 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207, 215 (1981)); see also Gibson, 308 N.C. at 138, 301 S.E.2d at 83.
An employee can establish a prima facie case of age discrimination when the employee shows that (1) the employee is a member of the protected class, or over forty years old; (2) the employee applied or sought to apply for an open position with the employer; (3) the employee was qualified for the position; and (4) the employee "was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959-60 (4th Cir.1996). An inference of unlawful discrimination *601 arises when an employee is replaced by a "substantially younger" worker. O'Connor v. Consol. Coin Caterers, 517 U.S. 308, 312-13, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433, 438-39 (1996); Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 430 (4th Cir.2000).
In the case before us, the trial court found that respondent failed to establish a prima facie case of discrimination because she failed to show that she "was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Evans, 80 F.3d at 959-60. The trial court found that Brown was not "substantially younger" than respondent, and as such, an inference of age discrimination did not arise.
This Court has not established a bright-line rule for determining whether an applicant who was selected is "substantially younger" than an employee who was not selected. We need not decide this issue today because even if respondent did establish a prima facie case of discrimination, petitioner has established a legitimate, non-discriminatory reason for its action, and respondent has not shown that this reason was a pretext for discrimination.
The evidence before the SPC showed that, based on the interview and writing sample scores, respondent ranked lowest out of all of the applicants. All three panel members ranked the applicants similarly, and two of the panel members testified that based on these rankings, they considered Brown to be the best applicant for the Personnel Analyst I position. Freeman gave the following testimony at the hearing before the ALJ:
Q. Okay. After thetaking you back, once again, to the interview panel, in addition to the rankingsthe numerical rankings, did thedid you have some discussion with . . . [Gilliam] and. . . [McRae] about who they thought would make the best employee in that particular position?
A. I think we all agreed afterwards that, again, based on the selections, the interview questions, that [Brown] answered the questions most appropriately, very clear and concise. And [respondent], you know, she kind of rambled and, you know, avoided answering some of the questions directly.
In addition, McRae gave the following testimony:
Q. How did you rate the applicants for those positions? Do you recall?
A. I recall that [Brown] was rated higher than the other two, and the reason for that, based on my personnel experienceprofessional personnel experience, is that she seemed to have a much broader and diverse personnel background, and in a personnel analyst position, that is, the beginning of a professional level of human resource work and what you're looking for or at least what I'm looking for is people that are able to use good judgment and discretion in interpreting and applying policies.
This testimony and the applicants' scores establish that petitioner had a legitimate, nondiscriminatory reason for its action. Under the McDonnell Douglas framework, the burden then shifts back to respondent to prove that this reason was a pretext for discrimination. In order to prove that a reason for an employer's action is a pretext for discrimination, an employee must prove "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. at 2742, 2752, 125 L. Ed. 2d 407, 422 (1993). "It is not enough, in other words, to disbelieve the employer; the factfinder must believe the [employee's] explanation of intentional discrimination." Id. at 519, 113 S.Ct. at 2754, 125 L.Ed.2d at 424.
We find that respondent has not established that petitioner's reason for its action was false. There is no evidence in the record that the reason was false or that the real reason for petitioner's action was to discriminate against respondent based on respondent's age.
Since respondent has failed to show that the trial court erred in its application of the whole record test and has failed to meet her *602 burden of proving age discrimination, we affirm the trial court's order.
Affirmed.
Judges McCULLOUGH and LEVINSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585211/ | 508 So.2d 792 (1987)
STATE of Louisiana
v.
Joseph Floyd CARMOUCHE, Jr.
No. 85-KA-0119.
Supreme Court of Louisiana.
January 12, 1987.
Rehearing Granted February 12, 1987.
On Rehearing May 18, 1987.
*793 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan Goudeau, Dist. Atty., David Miller, Asst. Dist. Atty., for plaintiff-appellee.
Leslie J. Schiff, G. Douglas Dean, Opelousas, M. Michele Fournet, Anthony Marabella, Baton Rouge, for defendant-appellant.
MARCUS, Justice.
Joseph Floyd Carmouche, Jr. was indicted by the grand jury for the first degree murder of Mrs. Augusta ("Gussie") B. Young in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. Defendant appealed his conviction and sentence to this court, urging six assignments of error. On appeal, however, a serious question was raised for the first time as to whether the defense attorney labored under a conflict of interest which had deprived defendant of effective assistance of counsel. Accordingly, defendant's case was remanded to the district court "for the appointment of a new attorney to represent the defendant, for the development of additional facts not of record pertaining to whether the defense counsel's performance was deficient and whether the deficiencies, if any, prejudiced the defense or deprived the defendant of a conscientious advocate for his life, and for the trial court's decisions on these issues." State v. Carmouche, 480 So.2d 728, 729 (La.1985).
On remand, the trial court found that, even if defense counsel had been subject to an actual conflict of interest, that conflict had not adversely affected his performance and thus ruled that defendant had not been deprived of effective assistance of counsel. On his second appeal, defendant assigns this ruling as error and relies on it and his original six assignments of error[1] for reversal of his conviction and sentence.
FACTS
The victim in this case, eighty-one year old Augusta B. Young, lived alone near Lawtell, Louisiana. She talked on the telephone daily with Nora Johnson, a friend of many years. At about 9:00 a.m. on March 13, 1984, Mrs. Johnson called Mrs. Young and spoke with her briefly, promising to call again when she returned from a visit to the doctor. About 3:30 or 4:00 that afternoon, Mrs. Johnson attempted to phone Mrs. Young, but there was no answer. Mrs. Johnson phoned twice after supper, but Mrs. Young still did not answer. Alarmed that Mrs. Young was not answering her telephone, Mrs. Johnson alerted Mrs. Young's neighbors, who went to Mrs. Young's house to investigate. Upon entering Mrs. Young's house, the neighbors found Mrs. Young's dead body lying on the floor in the doorway between the living room and bedroom. There was blood on her face from a gunshot wound to her head, her blouse had been pulled up over her breasts, and she was nude from the waist down. The police were called and at about 8:00 p.m., Billy Frilot of St. Landry Parish Sheriff's Department arrived to investigate.
Dr. Glenn Larkin, a forensic pathologist, arrived at the scene of the crime about 10:55 p.m. Dr. Larkin determined that the victim had died from a single gunshot wound to her head through the right eye and estimated the time of death to be between 9:00 a.m. and 3:00 p.m. During his autopsy of the victim, he removed hairs found on the victim's body and took vaginal, *794 rectal, and oral smears. He found a tear in the lining of her vagina which was consistent with forceful sexual intercourse. There was a bruise on the victim's thigh which could have been made by pinching, squeezing, or by a blow. Dr. Larkin also found contusion abrasions compatible with suction on the victim's right breast. There was also a small wound on the victim's hand which Dr. Larkin characterized as a defensive wound.
Forensic scientists from the Louisiana State Police Crime Lab collected evidence at the crime scene and received more from Dr. Larkin following the autopsy. Testing revealed pubic hair on the bedspread which had been on the victim's bed. The hair was negroid, and microscopic examination showed that all the characteristics of the hair were the same as defendant's pubic hair. Hairs found on the victim's right buttock and on the right side of her pubis microscopically matched defendant's pubic hair (and the hair on the bedspread). A hair found on the victim's chin was found to match defendant's head hair. Swabs taken from the vaginal area tested positive for seminal fluid, sperm, and blood; swabs taken from material on the victim's thigh tested positive for seminal fluid and blood.
At the crime scene, police also found the victim's wallet on her bed. The wallet was empty of all cash but contained a government supplemental benefits check payable to the victim and which she received monthly about the first of the month. Prints were lifted from the check and the wallet. A state fingerprint analyst subsequently found twenty-seven points of identity between the print found on the back of the check and defendant's left thumb print, twelve points of identity between a print on the front of the check and defendant's right thumb print, and thirty points of identity between a partial palm print found in the wallet and defendant's left palm print. Also at the crime scene, police found and videotaped bicycle tracks outside the victim's home. The tracks went behind a pile of brush, and there were footprints going from the pile toward the road in the direction of the victim's house.
Subsequent investigation revealed that a young black man resembling defendant had been seen in the neighborhood of the victim's house in the late morning of March 13, 1984. Nelma Boutee, who worked for a neighbor of the victim, stated that she had noticed a boy, who looked like her son, riding a bicycle and wearing a shirt like one her son had, at 11:30 a.m. The boy had come from the direction of the victim's house and was riding in the direction of the local grocery store owned by Mr. Elton Bihm. Mrs. Boutee later positively identified defendant in both a photographic line-up and a live line-up as the young man she had seen. Deputy Sheriff Oneil Antoine also saw defendant riding in the direction of Bihm's store. Although he was uncertain of the exact time, he thought it was between 10:30 and 11:00 a.m. Elton Bihm stated that on March 13, 1984, defendant came into his store about 11:00 a.m. or a little later and purchased a soft drink. Edgar Bellard had been in Bihm's store just before defendant and saw defendant pushing a bicycle as he approached the store. Defendant told him that the bicycle was broken and asked Bellard for a ride home. Bellard agreed and took defendant home at a time between 11:30 and 11:45. Defendant paid Bellard five dollars for the short ride home.
On March 26, 1984, defendant was arrested by the St. Landry Parish Sheriff's Department and charged with aggravated battery, attempted armed robbery, aggravated rape, and first degree murder in connection with the death of Mrs. Young. On the same day, Mr. Edward Lopez and Mr. Thomas DeJean were appointed by the court to represent defendant.
CONFLICT OF INTEREST
Defendant first contends that his attorney Lopez's dual representation of him and prosecution witness Ernest Jenkins created a conflict of interest which denied defendant his right to the effective assistance of counsel as guaranteed by the sixth amendment to the federal constitution and article 1, section 13 of our state constitution. Defendant argues that, because of conflicting *795 interests, Lopez failed to discredit the damaging testimony of Jenkins (who was also Lopez's client) for fear of jeopardizing Jenkins' then unconcluded plea bargain arrangements with the state in an unrelated case.
On the last day of trial, prior to the close of the state's case, the state served on defendant a "768 Notice and Discovery" in which it notified him that the state intended to introduce inculpatory statements made by defendant to a jail cellmate, Ernest Jenkins. Because Jenkins had only agreed to testify on the previous day after the close of proceedings for the day, defense counsel Lopez was unaware that Jenkins was to testify until that morning. Defendant objected on the ground that the state had failed to give him notice of its intent to use these statements prior to the state's opening statement as required by La.Code Crim.P. art. 768. Lopez mentioned in passing to the court that he was also the attorney for Ernest Jenkins (for whom he had negotiated an as-yet unconsummated plea bargain in an unrelated criminal matter)[2] and expressed some concern that there might be a conflict of interest. The following colloquy took place between the court and Lopez:
MR. LOPEZ: I would also state to the court, that the individual involved in this particular case who intends to make this statement is a client of my own. I represent Mr. Jenkins.
THE COURT: You represent him by court appointment.
MR. LOPEZ: Yes. It may be a distinct disadvantage to me because I may not be able to cross-examine Mr. Jenkins on certain things because there maybe a conflict of interest in what he told me.
THE COURT: The only foreseeable thing Mr. Lopez where you could question him would be as to whether the question about the subject matter on which you represent him and he's only been charged and he can't be questioned about that. Unless you question him and there's been some sort of deal that's been. I mean if you want to question him on bias and that would be beyond your representation. That would be cured simply by appointing another lawyer. Let's proceed.
However, Lopez did not ask to be relieved of representation of Jenkins, request a recess for purposes of developing impeachment evidence, or move for a mistrial. Moreover, after interviewing Jenkins, the trial judge offered defense counsel additional time to meet the evidence which the state was about to put on in connection with this particular witness. Lopez declined the offer, stating: "I'm satisfied that if I'd have ten more hours ... I'd still be where I am right now." Jenkins took the stand and proceeded to relate a damaging confession made to him by defendant while the two were incarcerated in the same cell block. Although defense counsel had questioned Jenkins closely for possible bias in a hearing outside. the presence of the jury prior to his testimony, defense counsel did not raise the issue of bias in his brief cross-examination of Jenkins before the jury since Jenkins had, in the prior hearing, firmly denied that his testimony had been induced by promises of a plea bargain for a reduced sentence.
On remand, Jenkins testified that he was under the impression that he would be allowed a plea bargain for a reduced sentence of five years for his unrelated charge (five years less than the plea bargain which Lopez had previously negotiated for Jenkins) in return for his testimony. Lopez testified that he became aware of this deal some months after the trial, but was not aware of any such deal at the time of defendant's trial. The district attorney's office, however, denied that Jenkins had been promised anything other than protection from other inmates in return for his testimony. Accordingly, the trial court applied the analysis of Cuyler v. Sullivan, *796 446 U.S. 335,100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and found that because any conflict of interest resulting from defense counsel's dual representation of defendant and Jenkins did not adversely affect defense counsel's performance at trial, defendant was not deprived of his right to the effective assistance of counsel.
It is well settled that multiple representation is not per se illegal and does not violate the sixth amendment to the United States Constitution or article 1, section 13 of the Louisiana Constitution unless it gives rise to a conflict of interest. State v. Kahey, 436 So.2d 475 (La.1983). In State v. Edwards, 430 So.2d 60 (La.1983), this court summarized the law applicable to claims that dual or multiple representation resulted in the ineffective assistance of counsel:
The relationship between joint representation and ineffective assistance of counsel has been thoroughly examined by the United States Supreme Court in its opinions rendered in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 708, 64 L.Ed.2d 333 (1980). State v. Marshall, 414 So.2d 684 (La.1982). In Holloway, defendant raised the issue of a conflict of interest prior to a joint trial. In this situation, the Court held that the trial judge is required "either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel." In Sullivan, the defendant did not raise the issue of conflict of interest either before [or] during his separate trial. Rather, the defendant... raised the issue for the first time after his trial. In this situation, the Court held that a defendant "in order to establish a violation of the Sixth Amendment... must demonstrate that an actual conflict of interest adversely affected his lawyer's performance...." Recently, in State v. Marshall, supra, we held that the time at which a concern over the effects of multiple representation is raised is the determinative factor in deciding whether the rules of Holloway or Sullivan are controlling. [Footnote omitted.]
However, the instant case presents an issue of first impression in Louisiana: that is, which rule controls where the trial court is alerted to the possibility of a conflict of interest from dual representation during trial, but no formal objection is raised to the dual representation.
As a starting proposition, we note that the sixth amendment does not require "state courts themselves to initiate inquiries into the propriety of multiple representation in every case." Cuyler v. Sullivan, 446 U.S. at 346, 100 S.Ct. at 1717. In fact, "[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." [Emphasis supplied.] Id. at 347, 100 S.Ct. at 1717. However, federal jurisprudence has also held that "where a defendant puts a trial judge on notice of the alleged conflict before or during trial and the trial court fails to inquire into the conflict, a reviewing court will presume prejudice upon a showing of possible prejudice." United States v. Marrera, 768 F.2d 201, 205 (7th Cir.1985), citing Holloway, supra, and Cuyler, supra. Thus,
[t]o decide whether to apply the Holloway test and afford defendant a per se presumption of prejudice or to apply the Cuyler test and grant the presumption of prejudice only upon a showing of actual conflict and adverse effect on counsel's performance, we must first determine whether the defendant put the trial judge on notice of the alleged conflict.
Marrera, 768 F.2d at 206.
Defense counsel in the instant case made no formal objection or motion to withdraw from the representation of either defendant or Jenkins. Defense counsel made only the most fleeting reference to a vague possibility of conflict stemming from his dual representation. He did not elaborate on that possibility either at that time or later in the trial. At the time defense counsel made reference to the alleged conflict of interests, the conflict was potential only. As the trial judge pointed out, the potential conflict would become actual only if Lopez, *797 in his capacity as defense counsel, were to cross-examine his former client Jenkins regarding confidential matters pertaining to Lopez's representation of Jenkins or regarding possible bias on the part of Jenkins; in that event, said the trial judge, the problem would be cured by simply appointing other counsel. When faced with an analogous situation, the court in United States v. Marrera, supra, held that
[t]he trial judge gave [defense] counsel forewarning of the potential conflict and thereafter reasonably relied on defense counsel to bring to the court's attention any conflict that might arise during the course of his representation....
[Because c]ounsel never mentioned the conflict problem again [, t]he judge did not neglect his duty in not inquiring further into the potential conflict problem. See Cuyler, 446 U.S. at 346-48, 100 S.Ct. at 1717-18 ("Absent special circumstances,... trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist").
Marrera, 768 F.2d at 206. And
[s]ince ... the judge was not put on notice of an actual conflict and fulfilled his duty in warning counsel of the possibility for conflict, we apply the Cuyler test, that is, we inquire whether the potential conflict ever developed into an actual conflict which adversely affected defense counsel's performance.
Marrera, 768 F.2d at 207. For the same reasons, we consider that the Cuyler test, that is, whether the potential conflict ever developed into an actual conflict which adversely affected defense counsel's performance, is applicable here. Accord, State v. Kahey, supra; State v. Rowe, 416 So.2d 87 (La.1982).
The first inquiry under the Cuyler test is whether the potential conflict ever developed into an actual conflict requiring defense counsel to make a choice advancing the interest of his client Jenkins to the detriment of defendant's interest. An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties. State v. Kahey, supra. However, as the trial court pointed out, any conflict here was only potential until such time as defense counsel might choose to cross-examine and impeach his client Jenkins before the jury regarding confidential matters or bias, particularly in relation to Jenkins' reasons for testifying. In fact, counsel never pursued such a line of cross-examination. Outside the presence of the jury, in a hearing conducted pursuant to La.R.S. 15:451,[3] Lopez questioned Jenkins closely about his reasons for testifying against defendant, clearly trying to elicit an admission that Jenkins' testimony had been induced by promises of a plea bargain for a reduced sentence and was therefore biased. However, Jenkins firmly denied any such inducement, and Lopez, who by his own admission did not at that time know of the alleged plea bargain for a reduced sentence of five years, saw no point in cross-examining Jenkins to the same effect before the jury. Instead, Lopez made a valid tactical decision to cross-examine Jenkins as little as possible so as to minimize the impact of the highly damaging confession which defendant had allegedly made to Jenkins. Thus, because Lopez felt it was unnecessary to cross-examine and impeach Jenkins for bias before the jury, the potential conflict of interest never ripened into an actual conflict of interest during trial. It was not until several months after trial that Lopez allegedly learned facts which caused him to believe that Jenkins' testimony had been induced by promises of a plea bargain for a reduced sentence and further leniency in the terms of that sentence. It was at this point in time that an actual conflict of interest first developed.
Given that an actual conflict developed only after trial, under Cuyler we must *798 consider whether the conflict affected counsel's performance at trial. Obviously it could not and did not. Defense counsel's brief cross-examination of Jenkins was due, not to any fear that Jenkins' original plea bargain would be jeopardized, but rather to a tactical decision by defense counsel "not to focus that much attention on the evidence that was ... given." Even if this tactical decision were unwise, the possibility that another approach should be used in a trial with better results to a defendant exists in every case and is far from making out a deprivation of a constitutional right. State v. Kahey, supra; State v. Edwards, supra. Moreover, at the remand hearing, defense counsel testified that he did not think that his dual representation of both defendant and Jenkins adversely affected his performance at defendant's trial. Accordingly, we conclude that, under the analysis of Cuyler, defendant was not deprived of his constitutional right to the effective assistance of counsel. The trial court did not err in so ruling. This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
Defendant contends the trial judge erred in allowing the testimony of Ernest Jenkins concerning inculpatory statements of defendant without giving notice to defendant prior to the state's opening statement as required by La.Code Crim.P. art. 768. He argues that because of the lack of such notice, he was unfairly surprised by Jenkins' testimony and was therefore unable to prepare an adequate defense.
In pre-trial discovery and in a pre-trial notice filed in accordance with La.Code Crim.P. art. 768, the state indicated that it intended to introduce a number of inculpatory statements against defendant. It made no mention of the confession and inculpatory statements made by defendant to Ernest Jenkins because it was unaware of the existence of such statements. However, after the close of proceedings on the fourth day of defendant's trial, the state learned for the first time that defendant had made a confession and certain inculpatory statements[4] to Ernest Jenkins, who had been his jail cellmate in the St. Landry Parish jail. The state immediately attempted to locate defense counsel to inform them of the newly-discovered statements but was unsuccessful in these attempts.
Accordingly, on the fifth day of trial, the state filed a second 768 notice, informing defendant that it intended to introduce the statements made to Ernest Jenkins. Defense counsel objected. The trial judge held an evidentiary hearing to determine when the state had learned of the existence of these statements. After the hearing, the trial judge found that although the state had exercised due diligence in its pre-trial investigation, nevertheless the state did not learn of Jenkins' statement until the fourth day of trial and could not possibly have complied with the literal terms of art. 768. Therefore, the trial judge overruled defendant's 768 objection to the testimony of Jenkins and allowed Jenkins to testify as to the statements made to him by defendant.
La.Code Crim.P. art. 768 provides:
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
The purpose of the notice required by art. 768 is to prevent surprise and allow adequate time for preparation of the defense. State v. Knapper, 458 So.2d 1284 (La. *799 1984). However, when art. 768 is not followed to the letter, this court will examine the entire record and determine whether the defendant was prejudiced by the noncompliance and whether he suffered a substantial violation of his statutory rights. La.Code Crim.P. art. 921;[5]State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).
The record shows that the state was neither dilatory nor in bad faith in failing to discover and disclose the evidence of the confession and inculpatory statements made by defendant to Jenkins. Furthermore, before Jenkins testified before the jury, the trial judge offered defense counsel additional time to meet the new evidence; however, Lopez declined the offer of additional time, stating that if he had another ten hours he would still be at the same point. Finally, defendant does not suggest how his defense would have been different had he been apprised that the state intended to introduce these statements against him. State v. Knapper, supra. We find, therefore, that defendant was not prejudiced by the state's mid-trial 768 notice of its intent to use the statements made to Ernest Jenkins. Hence, the trial judge did not err in overruling defendant's objection.
Assignment of Error No. 4 is without merit.
ASSIGNMENT OF ERROR NO. 5
Defendant contends that there was insufficient evidence to support his conviction for the first degree murder of Mrs. Young.
The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 mandates that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." This is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis of the conviction. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. State v. Garcia, 483 So.2d 953 (La.1986); State v. Porretto, 468 So.2d 1142 (La.1985); State v. Wright, 445 So.2d 1198 (La.1984). Thus, the relevant inquiry on appeal in the instant case is whether a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant was guilty of the first degree murder of Mrs. Young. Jackson v. Virginia, supra.
The murder of Mrs. Young was an unwitnessed crime. Nevertheless, there is more than ample circumstantial evidence linking defendant to the crime. Defendant's fingerprints were found on Mrs. Young's government check (which had only arrived some ten days before the crime) and on her wallet despite defendant's assertion that he had not been to Mrs. Young's house in ten years. An expert in hair analysis testified that all the foreign pubic hairs and one of the foreign head hairs found on Mrs. Young's body matched those of defendant. A holster and an empty box of .22 caliber bullets found in defendant's room were compatible with the .22 caliber bullet retrieved from Mrs. Young's body. Furthermore, a number of eyewitnesses established that defendant was in the neighborhood of Mrs. Young's house on the morning of the murder. Nelma Boutee positively identified defendant (in both a photographic line-up and a physical line-up) as the young black man she had seen on the day of the murder at about 11:30 a.m. She *800 testified that he was riding a bicycle at a fast pace from the direction of Mrs. Young's house and looking behind him. Deputy Oneil Antoine and Edgar Bellard also saw defendant riding or pushing a bicycle about the same time Nelma Boutee saw him. Additionally, the record fully supports the conclusion that the murder was committed while defendant was engaged in the perpetration of aggravated rape. The evidence clearly shows that the victim had sexual intercourse before her death. Swabs taken from the vaginal area tested positive for seminal fluid, sperm, and blood; swabs taken from material on the victim's thigh tested positive for seminal fluid and blood. There were bruises on the victim's nude body, a tear in the lining of her vagina, and a defensive wound on her hand, indicating resistance by the victim. The attack ended with the victim's being shot to death. It is therefore a reasonable conclusion that defendant was armed with a dangerous weapon and that the victim was raped under threats of great and immediate bodily harm accompanied by apparent power of execution. Finally, the jury heard Ernest Jenkins testify that defendant confessed to both the rape and the murder when the two were in the same cell block in the St. Landry Parish jail.[6]
Considering all the evidence, we find that this evidence, viewed in the light most favorable to the prosecution, excludes every reasonable hypothesis of innocence. Jackson v. Virginia, supra. Therefore, the jury did not err in finding defendant guilty of the first degree murder of Mrs. Young.
Assignment of Error No. 5 is without merit.
SENTENCE REVIEW
Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.Code Crim.P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La.Sup.Ct.R. 28, § 1, which provides:
Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury's finding of a statutory aggravating circumstance, and
(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(a) Passion, prejudice or any other arbitrary factors
There is no evidence that passion, prejudice or any other arbitrary factors influenced the jury in its recommendation of the death sentence.[7] Nor has any argument to that effect been raised by defendant.
(b) Statutory aggravating circumstances (Assignment of Error No. 6)
The jury found that two of the aggravating circumstances listed in La.Code Crim.P. art. 905.4 were present in this case:
(a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape, ... aggravated burglary, [and] ... armed robbery....
(g) the offense was committed in an especially heinous, atrocious, or cruel manner....
Defendant contends that the jury's finding of aggravating circumstances and recommendation *801 of the death penalty are contrary to the evidence.
The record amply supports the jury's conclusion that the murder was committed while defendant was engaged in the perpetration of aggravated rape. Aggravated rape at the time of this crime was defined as follows:
Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
La.R.S. 14:42.[8] The evidence clearly shows that the victim had sexual intercourse before her death. Swabs taken from the vaginal area tested positive for seminal fluid, sperm, and blood; swabs taken from material on the victim's thigh tested positive for seminal fluid and blood. There were bruises on the victim's nude body, a tear in the lining of her vagina, and a defensive wound on her hand, indicating resistance by the victim. Furthermore, the attack ended with the victim's being shot to death. Given that fact, the jury could reasonably have concluded that the offender was armed with a dangerous weapon, despite the gun's not being admitted in evidence,[9] and that the victim had been raped under threats of great and immediate bodily harm accompanied by apparent power of execution. The jury's finding that defendant committed this murder while engaged in the perpetration of aggravated rape is clearly supported by the evidence. Accordingly, it is unnecessary for us to consider the sufficiency of the evidence for the findings that defendant committed this murder while engaged in the perpetration of aggravated burglary and armed robbery.
Since the jury found one statutory aggravating circumstance (La.Code Crim.P. art. 905.4(a)) and that circumstance is clearly supported by the record, we find it unnecessary to decide whether the jury erred in finding that the offense was committed in an especially heinous, atrocious, or cruel manner (the second aggravating circumstance). The failure of one aggravating circumstance would not invalidate the death penalty if another aggravating circumstance is also found and is upheld on review. La.Code Crim.P. art. 905.3; State v. Bates, 495 So.2d 1262 (La.1986).
(c) Proportionality to the penalty imposed in similar cases
Supreme Court Rule 28, § 4 provides that the district attorney shall file with this court a list of each first degree murder case in the district in which sentence was imposed after January 1, 1976. The list shall include the docket number, caption, crime convicted, sentence actually imposed and a synopsis of the facts in the record concerning the crime and the defendant.
In the instant case, the sentence review memorandum submitted by the district attorney stated that there had been no other first degree murder cases in the district since January 1, 1976. However, our research reveals that, including the instant case, there have been five convictions of first degree murder in the Twenty-Seventh Judicial District Court in and for the Parish of St. Landry since January 1,1976.[10] Out *802 of these five, the death penalty was recommended by the jury in only two cases, including the present case.[11] In both of these cases, the defendants were the actual killers. In State v. Bates, the other death penalty case in this district, the jury found that Bates had shot and killed a hitchhiker while engaged in the perpetration of an armed robbery, a statutory aggravating circumstance. Of the remaining cases (in which a sentence of life imprisonment was imposed), one was an armed robbery/murder case in which the jury was unable to reach a unanimous recommendation of the death penalty,[12] one was a case in which the conviction of first degree murder was reduced on appeal to this court to second degree murder because the evidence was found insufficient to support the jury's finding of an aggravating circumstance,[13] and one was a case in which the jury might reasonably have found one or more mitigating circumstances justifying imposition of a life sentence.[14] In the instant case, the victim was an 81-year-old woman of good reputation in her community. She was raped and murdered within the confines of her own home. We conclude, therefore, that the sentence of death imposed in this case is not inconsistent with the other first degree murder convictions in this district.
According to the Uniform Capital Sentencing Report, defendant, a black male of average intelligence, was nineteen years of age at the time the crime was committed. He has never been married. He only completed the seventh grade in school. Although defendant comes from an apparently stable home environment, he has a history of problems and outbreaks of violence at the schools he has attended and at home. At the time of the crime, defendant had aggravated battery and attempted armed robbery charges pending against him arising out of an incident which had occurred approximately one month before the murder. He has been diagnosed as having various substance use disorders, including alcohol and marijuana dependency. The psychiatric evaluation further revealed that defendant is subject to episodic adult antisocial behavior, undersocialized aggressive reaction, and other conduct disorders.
After having considered the above factors, we are unable to conclude that the sentence of death in the instant case is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Hence, based on the above criteria, we do not consider that defendant's sentence of death constitutes cruel, excessive, or unusual punishment.
DECREE
For the reasons assigned, defendant's conviction and sentence are affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution as provided by La.R.S. 15:567 until (a) defendant fails to petition the United States Supreme Court timely for certiorari; (b) that court denies his petition for certiorari; (c) having filed for and been denied certiorari, defendant fails to petition the United States Supreme Court timely under their prevailing rules for applying for rehearing of denial of certiorari; or (d) that court denies his application for rehearing.
CALOGERO and DENNIS, JJ., dissent for the reasons assigned by LEMMON, J.
LEMMON, J., dissents and assigns reasons.
*803 LEMMON, Justice, dissenting.
Defense counsel informed the trial judge of the conflict of interest as soon as the conflict arose.[1] Under such circumstances, it was incumbent upon the trial judge to explain immediately to defendant on the record his right to conflict-free counsel. Unless the defendant knowingly and intelligently waived this right, it was then incumbent upon the trial judge to take steps to protect defendant's rights, either by removing the conflict (by, for example, having the witness waive his attorney-client privilege and open himself for full cross-examination or granting a recess until the next day and appointing new counsel to cross-examine the witness whose representation gave rise to the conflict), or by excluding the evidence which the state developed at the last moment, or by some other means.
Unfortunately, the trial judge in the present case did not invoke any of these safeguards, but rather required defense counsel to proceed with his representation of the defendant and to cross-examine his own client who was presented at the last minute as the state's most important witness. Because defense counsel could not effectively cross-examine this witness and emphasize to the jury the facts which gave rise to an inference of bias, there was an actual conflict of interest. The judge's failure to invoke any safeguards therefore requires reversal of the conviction and sentence.[2]Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). For cases with similar facts, see United States v. Winkle, 722 F.2d 605 (10th Cir. 1983) and Pinkerton v. State, 395 So.2d 1080 (Ala.App.1980), cert. denied 395 So.2d 1090, and the numerous federal cases cited therein.
ON REHEARING
DIXON, Chief Justice.
A rehearing was granted to reconsider whether the defendant's attorney was faced with a conflict of interest, and, if so, whether the effect of this conflict requires this case be remanded for further proceedings. The facts and procedural history are described in this court's earlier decision. The issue on rehearing is what rule controls when defense counsel informs the trial judge during trial that a conflict of interest has arisen from his representation of both the defendant and the prosecutor's surprise star witness, without raising any formal objection.
This court has held that a formal incantation is not required to make an objection in the trial court. State v. Shoemaker, 500 So.2d 385 (La.1987), State v. Vanderpool, 493 So.2d 574 (La.1986), State v. Boutte, 384 So.2d 773 (La.1980), State v. Jones, 332 So.2d 267 (La.1976). This is especially clear when an attorney complains to the court that he is being forced to labor under a conflict of interest. The nature of such a complaint can place an attorney in the difficult position of balancing the competing interests of two clients. Even while the issue is being raised before the trial judge, the attorney must be wary not to betray the confidences that may underlie his conflict. For this reason, when a conflict has been explicitly raised before the court, the trial judge must assume some responsibility to examine the nature of the conflict and its possible ramifications.
The defendant's attorney, Edward Lopez, first learned that a conflict of interest existed while the trial was in progress. The defendant Carmouche had allegedly made statements to his cellmates to the effect that he was guilty of the offense with which he was charged. Although the inculpatory statements had been made some time earlier, the prosecution only became aware of the statements during trial, and *804 notified the defense counsel under C.Cr.P. 768 on the following day. This meant that defense counsel learned of the confession on the sixth and final day of trial, just prior to the close of the state's case.
Lopez discovered that the witness who would disclose the confession, Ernest Jenkins, was one of his own clients in another case. As soon as Lopez was aware of the apparent conflict, he presented his dilemma to the trial judge:
"MR. LOPEZ: I would also state to the court, that the individual involved in this particular case who intends to make this statement is a client of my own. I represent Mr. Jenkins.
THE COURT: You represent him by court appointment.
MR. LOPEZ: Yes. It may be a distinct disadvantage to me because I may not be able to cross-examine Mr. Jenkins on certain things because there maybe (sic) a conflict of interest in what he told me."
This was sufficient to alert the trial judge that an actual conflict existed and that defendant's counsel felt required to balance the competing interests of his two clients. In State v. Kahey, 436 So.2d 475 (La.1983), this court accepted the definition of an actual conflict of interest set out in Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979):
"If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client."
In State v. Kahey, supra at 485, this court found:
"When there is such a conflict of interest, the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real, a denial of effective representation exists without a showing of specific prejudice. Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974)...."
Defendant's counsel was confronted with an actual conflict of interest when one of his clients was arguably the most damaging witness against a second client. When Lopez cross-examined Jenkins, one of his clients would suffer. If Lopez failed to raise a doubt as to Jenkins' credibility, the defendant's case would be seriously damaged. On the other hand, if Lopez were successful in his cross-examination, he could jeopardize Jenkins' plea bargain that had not yet been formalized.
After the trial court has been alerted that an actual conflict of interest exists, the judge must take the proper steps to assure that the defendant's Sixth Amendment right to effective counsel is not abridged. In State v. Edwards, 430 So.2d 60, 62 (La.1983), this court summarized the law applicable to claims that multiple representation resulted in the ineffective assistance of counsel:
"The relationship between joint representation and ineffective assistance of counsel has been thoroughly examined by the United States Supreme Court in its opinions rendered in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). State v. Marshall, 414 So.2d 684 (La.1982). In Holloway, defendant raised the issue of a conflict of interest prior to a joint trial. In this situation, the Court held that the trial judge is required `either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel.' In Sullivan, the defendant did not raise the issue of conflict of interest either before and (sic) during his separate trial. Rather, the defendant ... *805 raised the issue for the first time after his trial. In this situation, the Court held that a defendant `in order to establish a violation of the Sixth Amendment ... must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.' ... Recently, in State v. Marshall, supra, we held that the time at which a concern over the effects of multiple representation is raised is the determinative factor in deciding whether the rules of Holloway or Sullivan are controlling...."
In its previous opinion, this court found the facts of this case were analogous to the facts in Cuyler v. Sullivan, supra, and therefore followed the guidelines established in that case. However, on rehearing, the court now acknowledges that the present facts fall directly between Cuyler v. Sullivan, supra, and Holloway v. Arkansas, supra, because the trial judge was first informed that an actual conflict existed during the trial. In this case the judge was told of the existing conflict at the earliest feasible opportunity but before the conflict had actually affected defense counsel's representation.
When a conflict of interest is raised prior to trial as in Holloway, the court has the opportunity to remedy the conflict by appointing separate counsel. However, this is not a feasible alternative when the conflict does not arise until the trial is in progress. Furthermore, the conflict could remain an obstacle during the defense counsel's closing argument, where he might be required to discredit the testimony of one of his clients.
On the other hand, when counsel informs a trial judge during trial that a conflict has arisen which could jeopardize the defendant's protection under the Sixth Amendment, the judge must take steps to investigate the nature of the conflict and to form an appropriate remedy.
While being mindful of the restrictions inherent in the attorney/client privilege, the judge should require the attorney to disclose the basis of the conflict. If the judge determines that the conflict is not too remote, he should explain the conflict to the defendant outside the presence of the jury and inform the defendant of his right to representation that is free of conflict. Thereafter, if the defendant chooses to exercise his right, a statement should be prepared in narrative form, which indicates that the defendant is fully aware of his right but has chosen to make a knowing and intelligent waiver thereof. See United States v. Winkle, 722 F.2d 605 (10th Cir. 1983) and United States v. Martinez, 630 F.2d 361 (5th Cir.1980). If the defendant opts not to waive his right to counsel that is free of conflict, the judge must offer the defendant and his counsel a mistrial under C.Cr.P. 775(1).
Once the judge determines that a conflict of interest in fact exists, it is presumed that the conflict will affect the defense counsel's representation of his client. If the trial court fails to take the proper steps to protect defendant's right to effective counsel, a reversal of the conviction is required. As stated by the United States Supreme Court in Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 702 (1942), "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." In Holloway v. Arkansas, supra, the Court found the holding in Glasser v. United States, supra, to be "whenever a trial court improperly requires joint representation over timely objection reversal is automatic." 435 U.S. at 489, 98 S.Ct. at 1181. This holding is applicable where defense counsel alerts the trial court during trial that he is faced with a conflict of interest and the trial judge orders counsel to continue without taking the proper steps to protect the defendant's right to counsel that is free from conflict.
Accordingly, the conviction and sentence are reversed and the case is remanded for a new trial.
*806 LEMMON, J., concurs and assigns reasons.
MARCUS, J., dissents, adhering to the view expressed in the original opinion.
COLE, J., respectfully dissents, adhering to the original opinion.
LEMMON, Justice, concurring.
When a defendant, after the colloquoy with the judge outlined in the majority opinion, decides to exercise his right to conflict-free counsel, mistrial is not the only remedy. In this particular case, the trial judge could have taken any of a number of steps to protect defendant's rights. For example, the conflict might have been removed by having the witness waive his attorney-client privilege and open himself for full cross-examination, or the judge could have granted a recess until the next day and appointed new counsel to cross-examine the witness whose representation gave rise to the conflict, or the judge could have excluded the evidence which the prosecution discovered at the end of the trial. Mistrial was only one of a number of reasonable courses of action; ignoring the conflict was reversible error.
NOTES
[1] Assignments of Error Nos. 1, 2 and 3 do not represent reversible error nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case.
[2] At the time of this trial, the district attorney and Lopez had already confected a plea bargain for Jenkins whereby Jenkins would enter a plea of guilty to an aggravated battery and would receive the maximum penalty of ten years at hard labor. In return, other charges of armed robbery, second degree battery, and simple burglary were to be dropped. However, Jenkins had not, at the time of this trial, entered a formal plea of guilty.
[3] La.R.S. 15:451 provides as follows:
Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.
[4] Jenkins stated that when he asked defendant if he had committed the crime of which he was accused, defendant nodded his head yes. When Jenkins asked why defendant had done it, defendant replied that "he [had gotten] up on the wrong side of the bed." Defendant further told Jenkins that "when he left [the victim's house,] he saw a woman hanging clothes but she didn't see him," thus corroborating the testimony of Nelma Boutee, who claimed to have seen defendant in the area of the victim's house on the morning of the murder. Finally, when Jenkins asked defendant why he had raped Mrs. Young, defendant replied that "that bitch had good pussy."
[5] La.Code Crim.P. art. 921 provides:
A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.
[6] Defendant also made two other confessions, neither of which was received into evidence. The first was a videotaped confession made by defendant to the St. Landry Parish police. However, the trial judge ordered part of this confession suppressed and therefore the state decided not to introduce the confession into evidence. The second confession was made by defendant to his mother; however, the state also declined to introduce this confession into evidence. Since neither of these confessions is in evidence, we do not consider them in testing the sufficiency of the evidence against defendant.
[7] The state introduced no evidence to show that the murder was committed in an especially heinous, atrocious, or cruel manner.
[8] The 1984 Legislature added a fifth circumstance: "When two or more offenders participated in the act." This did not become effective until September 3, 1984.
[9] The police located the murder weapon as a result of a suppressed statement. The prosecution did not attempt to introduce the gun in evidence.
[10] The other cases were: State v. Bates, 495 So.2d 1262 (La.1986); State v. Gibson, a case not appealed to this court and hence unreported (tried in September, 1985); State v. Andrews, 452 So.2d 687 (La.1984); State v. Delahoussaye, 443 So.2d 648 (La.App. 3d Cir.1983).
[11] The other case was State v. Bates, supra.
[12] State v. Gibson, supra (defendant shot and killed a hitchhiker after pistol whipping him and robbing him at gunpoint).
[13] State v. Andrews, supra (defendant threatened to kill two brothers but in fact killed only one; this court found that there was insufficient evidence to show that defendant intended to kill or inflict great bodily harm on more than one person, an aggravating circumstance).
[14] State v. Delahoussaye, supra (following an argument, defendant killed his companion with whom he had been drinking all night).
[1] The majority apparently considers significant the fact that defense counsel failed to object at the time. Of course, the purpose of an objection is to inform the court of a problem at a time when the problem can be corrected. That was clearly done here.
[2] Perhaps there was insufficient prejudice in this case to fulfill the post conviction standards of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). However, that is not the appropriate standard in this case in which the conflict issue was brought to the court's attention prior to the conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342941/ | 161 S.W.3d 736 (2005)
Leo Joseph HAMEL, Appellant,
v.
Barbara HAMEL, Appellee.
No. 09-04-162 CV.
Court of Appeals of Texas, Beaumont.
Submitted February 10, 2005.
Decided March 24, 2005.
*737 James D. Jones, Conroe, for appellant.
Barbara Hamel, Houston, pro se.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
OPINION
STEVE McKEITHEN, Chief Justice.
Appellant Leo Joseph Hamel (Leo) appeals the issuance of a family violence protective order by the trial court pursuant to TEX. FAM.CODE ANN. §§ 85.001, 85.021, & 85.022 (Vernon 2002). We have no appellate brief from appellee Barbara Hamel (Barbara). Leo raises seven appellate issues for our consideration.
The record indicates that Leo and Barbara are husband and wife and that in September of 2003, a divorce petition was filed in County Court at Law No. 2, Montgomery County, Texas. Thereafter, on January 30, 2004, Barbara filed an application for protective order alleging family violence by Leo. An evidentiary hearing was concluded on February 19, 2004, on Barbara's application and the trial court issued the protective order on February 26, 2004. At some point in time between the issuance of the protective order on February 26, 2004, and Leo's Motion For New Trial, filed on March 23, 2004, the trial court, without explanation, transferred the pending divorce proceeding between Leo and Barbara to County Court at Law No. 4, Montgomery County, Texas. Leo also filed his notice of appeal on March 23, 2004. On June 24, 2004, we notified Leo of our concern that we may lack jurisdiction over this appeal because of the pending divorce proceedings. We asked for a written response to our jurisdictional inquiry and Leo replied citing a number of cases. In a well written and persuasive brief, Leo urges this Court to exercise jurisdiction and issue an opinion ruling on the merits of his appellate issues. However, because we lack jurisdiction, we must dismiss his appeal.
Generally, appellate jurisdiction exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (orig. proceeding). The Texas Legislature has, however, authorized appeal of several types of interlocutory orders, none of which are at issue here. See, e.g., TEX. CIV. PRAC. & REM.CODE ANN. §§ 15.003, 51.014, 171.098 (Vernon Supp.2005); TEX. GOV'T CODE ANN. § 1205.068 (Vernon 2000). It is fundamental error for an appellate court to assume jurisdiction over an interlocutory appeal that is not expressly authorized by *738 statute. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990).
A family violence protective order may be rendered by the divorce court as part of "temporary orders" issued during the normal course of divorce proceedings. See TEX. FAM.CODE ANN. § 6.504 (Vernon 1998). However, because Chapter 6 of the Family Code classifies such an order as "temporary," interlocutory appeal is not permitted. See TEX. FAM.CODE ANN. § 6.507 (Vernon 1998). A family violence protective order rendered by a court not having jurisdiction over a pending suit for dissolution of marriage may be transferred by the court that rendered the protective order either "in the interest of justice," or "for the safety or convenience of a party or a witness," to the court having jurisdiction of the pending divorce proceeding. See TEX. FAM.CODE ANN. § 85.064(a), (c) (Vernon 2002).
In the instant case, the protective order at issue was rendered by the trial court in which the divorce proceeding was pending, although filed and rendered under a separate cause number from that of the divorce proceeding.[1] The protective order at issue was limited in time, and expressly provided that "[t]he terms of this Protective Order should not supercede the terms set forth in the Temporary Orders" in the divorce proceeding. Given this apparent incorporation by reference of the terms of the temporary orders from the divorce proceeding, even though the divorce and protective order proceedings remain separate, we conclude under these facts and circumstances this Court is without jurisdiction to review the protective order because of its distinct lack of finality as to the parties and issues. See, e.g., In re K.S.L.-C., 109 S.W.3d 577, 579-80 (Tex.App.-Tyler 2003, no pet.) (Protective order rendered during the pendency of a divorce held not final judgment for purposes of appeal). Therefore, this appeal is dismissed for lack of jurisdiction.
APPEAL DISMISSED.
NOTES
[1] The record reflects that the divorce was filed in County Court at Law No. 2 under cause number "NO. 03-09-06660-CV." Barbara's application for protective order was also filed and rendered in County Court at Law No. 2, but filed under cause number "NO. 04-01-00724-CV." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585224/ | 508 So.2d 225 (1987)
MUSCLE SHOALS AVIATION, INC.
v.
MUSCLE SHOALS AIRPORT AUTHORITY and James Crowder.
86-12.
Supreme Court of Alabama.
April 24, 1987.
Rehearing Denied May 29, 1987.
Lindsey G. Mussleman of Holt, McKenzie, Holt & Mussleman, Florence, for appellant Muscle Shoals Aviation, Inc.
J.A. Keller of Keller, Cochran & Pitts, Florence, for appellee Muscle Shoals Airport Auth.
Frank Butler Potts, Florence, for appellee James Crowder.
HOUSTON, Justice.
Muscle Shoals Airport Authority ("the Authority") filed this declaratory judgment action against Muscle Shoals Aviation, Inc. *226 ("Aviation"), in the Circuit Court of Colbert County, asking for a declaration that a renewal option in a 1966 lease agreement (that option appearing as paragraph F of a November 8, 1966, addendum to the lease) was unenforceable. The trial court entered a judgment declaring the renewal option unenforceable because of "vagueness" and "uncertainty." Aviation appeals from this judgment. We affirm.
The facts herein are not disputed. In March 1966, Aviation entered into a 20-year lease with the Authority to operate a "fixed base operation" at the Muscle Shoals Airport in Muscle Shoals, Alabama. In November 1966, the renewal clause here in question was added to the lease. It provides as follows:
"F. The Lessor [the Authority] gives to the Lessee [Aviation] an express option of renewal of the Contract at the end of the term hereof with the rate of rental and other terms and conditions to be negotiated."
Prior to the expiration of the lease, Aviation notified the Authority of its intent to exercise the renewal option. The Authority, by letter dated December 31, 1985, acknowledged Aviation's intention to renew the lease and in response submitted a proposed lease agreement for Aviation's acceptance by January 14, 1986. Upon receipt of the Authority's proposal, Aviation requested a meeting to negotiate the terms of the proposed lease, and indicated that it would consider legal recourse to enforce its rights under the 1966 lease if the Authority failed to "fully" and "fairly" negotiate the terms of the proposed lease agreement. Dr. James Crowder, who subsequently was allowed to intervene as a plaintiff, and General Aviation, Inc. (a "fixed base operator"), also threatened suit if the Authority did not award the lease pursuant to the Alabama Public Bid Laws, § 41-16-24, Code 1975. The Authority filed this declaratory judgment action to determine the enforceability of the renewal provision.
The general rule, as followed by a majority of the states, is stated in 50 Am.Jur.2d Landlord and Tenant, § 1158 (1970):
"[T]he provision for a renewal or extension must be certain in order to render it binding and enforceable; indefiniteness, vagueness, and uncertainty in the terms of such a provision will render it void unless the parties by their subsequent conduct or acts supplement the covenant and thus remove an alleged uncertainty. The certainty that is required is such as will enable a court to determine what has been agreed upon. A covenant to renew or extend upon such terms as may be agreed upon is void for uncertainty...."
The general rule, as expressed above, was enunciated in Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (1980), and in the following cases:
"In Keating v. Michael, 154 Ark. 267, 242 S.W. 563 (1922), the Arkansas Supreme Court stated:
"`A covenant to renew upon such terms as may be agreed upon is void for uncertainty ... No provision was fixed in the contract, except such rental value as the parties might agree upon. They might never agree and so the case falls squarely within the general rule announced above, and the contract is too uncertain and indefinite to be enforced'
"Likewise in Hatch v. Scott, Adm'x., 210 Ark. 665, 197 S.W.2d 559 (1946), the court determined:
"`A covenant to renew upon such terms as may be agreed upon is void for uncertainty. It is nothing more than an agreement to make an agreement.'"
In Clanton v. Bains Oil Co., 417 So.2d 149 (Ala.1982), Justice Jones wrote that "elementary to contract principles is the axiom that `agreements to later agree are not enforceable.'" See Cowin v. Salmon, 244 Ala. 285, 13 So.2d 190 (1943.) Furthermore, in Parker Chiropractic Research Foundation v. Fairmont Dallas Hotel Co., 500 S.W.2d 196 (Tex.Civ.App.1973), Chief Justice Williams set out several "well defined and settled principles" of law regarding the remedy of specific performance, including the following principle:
*227 "An agreement to make a future contract must be definite and certain upon all the subjects to be embraced in such future agreement. Thus, to be enforceable, a contract to enter into a future contract must specify all its material and essential terms, and leave none to be agreed upon as a result of future negotiations. Where a preliminary contract leaves certain terms to be agreed upon for the purpose of a final contract, there can be no implication of what the parties will agree upon. Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472 (1937); Page & Wirtz Construction Co. v. Van Doran Bri-Tico Co., 432 S.W.2d 731 (Tex.Civ.App., Amarillo, 1968, writ red'd n.r.e.); Friedrich v. Moke, 296 S.W.2d 565 (Tex.Civ.App., San Antonio, 1956, writ red'd n.r.e.)."
In Radford v. McNeny, supra, the Texas Commission of Appeals wrote:
"The general rule is: ` * * * unless an agreement to make a future contract be definite and certain upon all the subjects to be embraced, it is nugatory. "A contract between two persons, upon a valid consideration, that they will at some specified time in the future, at the election of one of them, enter into a particular contract, specifying its terms, is undoubtedly binding, and, upon a breach thereof, the party having the election or option may recover as damages what such particular contract to be entered into would have been worth to him, if made. But an agreement that they will in the future make such contract as they may then agree upon amounts to nothing. An agreement to enter into negotiations, and agree upon the terms of a contract, if they can, cannot be made the basis of a cause of action. There would be no way by which the court could determine what sort of a contract the negotiations would result in, no rule by which the court could ascertain whether any, or, if so, what damages might follow a refusal to enter into such future contract. So, to be enforceable, a contract to enter into a future contract must specify all its material and essential terms, and leave none to be agreed upon as the result of future negotiations. * * * Where a final contract fails to express some matter, as, for instance, a time of payment, the law may imply the intention of the parties, but, where a preliminary contract leaves certain terms to be agreed upon for the purpose of a final contract, there can be no implication of what the parties will agree upon." Shepard v. Carpenter, 54 Minn. 153, 55 N.W. 906.' St. Louis & S.F.R. Co. v. Gorman, 79 Kan. 643, 100 P. 647, 649, 28 L.R.A. (N.S.) 642, 643. See, also, 6 R.C.L. pp. 616, 617; 10 Tex.Jur. p. 176; Yerion v. Allison (Tex.Civ.App.) 242 S.W. 270; Joseph v. Bostick (Tex.Com. App.) 276 S.W. 672."
Aviation contends that the specific terms were not set out in the 1966 addendum because they were unascertainable at that time and argues, therefore, that reasonable terms should be inferred. Aviation further asserts that the renewal provision was incorporated in the agreement to insure that Aviation had the exclusive option to renew at the expiration of the initial lease period.
In support of this argument Aviation relies upon Slade v. City of Lexington, 141 Ky. 214, 132 S.W. 404 (1910), which appears to set out a rule contrary to the rule followed by the majority of the states. Alabama follows the majority rule and we are not persuaded that we should adopt the rule enunciated in Slade in the event that Slade cannot be distinguished from the case at issue.
The renewal provision in the case at issue leaves everything pertaining to the renewal open for determination by the parties' future negotiations. That is to say, they must agree on not only the amount of rent to be paid, but upon such conditions, covenants, and limitations as are acceptable to both parties. Renewal agreements much more specific than this one, in that they leave only the renewal rental to be fixed by future agreement between the parties, have generally been held unenforceable and void for uncertainty and indefiniteness. See Edgewater Enterprises, Inc. v. Holler, 426 So.2d 980 (Fla.Dist.Ct. App.1982); Giglio v. Saia, 140 Miss. 769, 106 So. 513 (1926); Phipps, supra.
*228 It is fundamental that courts will not enforce a contract which is vague, indefinite, or uncertain. It is not the province of the court to make or remake a contract for the parties. Cotton States Mut. Ins. Co. v. Conner, 387 So.2d 125 (Ala.1980). In order to be enforceable, a contract to enter into a future contract must be definite and certain in all of its terms and conditions so that the court can know what the parties have agreed upon. Radford, supra. Since there was no specificity as to the terms and conditions of the lease to be made, we hold the renewal provision void for uncertainty and therefore unenforceable.
Aviation further contends that the Authority should be estopped from denying the enforceability of the renewal provision because of the Authority's letter of December 31, 1985. Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977). We do not agree.
The Authority had no legal obligation to renew Aviation's lease; however, the Authority, by its letter dated December 31, 1985, offered a proposed lease agreement for Aviation's acceptance. Aviation did not accept the Authority's offer. Therefore, this contention is without merit. The judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585233/ | 508 So.2d 943 (1987)
STATE of Louisiana
v.
Lloyd J. ANCAR.
No. KA 6905.
Court of Appeal of Louisiana, Fourth Circuit.
June 3, 1987.
*945 Sherry Watters, Orleans Indigent Defender Program, New Orleans, for appellant.
William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William A. Marshall, Asst. Dist. Atty., New Orleans, for appellee.
Before CIACCIO, WARD and WILLIAMS, JJ.
CIACCIO, Judge.
On the basis of six assignments of error,[1] defendant appeals his conviction for second degree murder. La.R.S. 14:30.1. Finding no error warranting reversal of defendant's conviction, we affirm.
There was one eyewitness to the crime, Wilbert Byes. He testified that he and Larry Noil were attempting to repair the tires on Noil's car which had been slashed, when defendant walked up to them. While standing near the car defendant dropped a pistol. Larry Noil picked up the gun and placed it in the glove compartment of his car.
The three men then drove in Byes's car to a service station. Noil purchased a tire and had it mounted on the rim from which the slashed tire had been removed. The three men then got back into Byes's car to return to Noil's car.
Byes drove, Noil rode in the passenger seat, and defendant sat in the rear. As they were returning to Noil's car, defendant pulled a gun and fired two bullets into Noil's head. He fired a third shot which grazed Byes's face.
Byes had already begun slowing down the car. He placed the transmission in neutral and leaped from the moving car. The car rode off the road and came to a stop near some trees in a grassy area.
Defendant left the car and approached Byes who was reluctant to allow defendant to get near him. Three other men drove up, however, and stopped near where Byes's car was stopped in the grass off of the road. These three men were Robert Lloyd, Larry Legania and Lenard Lagania.
Robert Lloyd testified that prior to the crime defendant had stated that he had slashed Noil's tires and that he was going to "get" Noil over something involving money. Prior to the shooting, Lloyd had given defendant a ride and dropped him off about a block from Noil's car. He stated that he and the Legania brothers had returned to the area because they feared that defendant might harm Noil.
Lloyd testified that after the crime defendant stated that he had gotten Noil, that he had shot him in the head, and that he had to get Byes.
Almost immediately after arriving at the scene of the crime, Lenard Lagania left, walking. Those who remained helped Byes push his car back onto the road.
The police had been called. As they approached the scene Larry Lagania, Robert Lloyd, and defendant drove away in Lloyd's car. Byes started to drive away, but the police stopped him. The police were also able to stop Lloyd's car, but did not arrest anyone because the men convinced them that there had been a fight but that no one had been hurt. Noil's body was not discovered until the next day, when it was found in the weeds in the area where Byes's car had stopped after leaving the road.
Mrs. Noil testified that Noil had been carrying $1,000.00. No money was found on him. Lloyd testified that after the shooting defendant told him that he had $900.00. Noil had spent some money buying the tire.
*946 Defendant's girlfriend testified that he had been with her the entire night of the crime.
Assignments of Error Nos. 1 and 2
Defendant's first two assignments of error concern the State's failure to comply with discovery requests. By pre-trial motion defendant requested "any oral or written confession, statement and/or admission whether inculpatory or exculpatory, and if so specify which." See La. C.Cr.P. Art. 716. The state answered that none existed. Defendant also requested information and copies of reports concerning any physical examinations or scientific tests made in connection with this case. See La. C.Cr.P. Art. 719. The state provided some reports prior to trial, but not all of the reports which it introduced at trial.
At the beginning of trial the state served defendant with notice of its intention to introduce in evidence inculpatory statements, as required by La. C.Cr.P. Art. 768. Defendant objected and sought to have the statements excluded because the state had responded to the discovery request for such statements that none existed. The state responded that it was unaware of the statements when its written answers were filed, but when it became aware of the statements, prior defense counsel was informed verbally. The record contains nothing to corroborate the state's claim of compliance. Although La. C.Cr.P. Art. 729.3, imposing a continuing duty to disclose, does not specifically require disclosure in writing, it does require notification to the courtwhich the state does not claim to have done; and since this is a court of record, we are constrained to consider the case based on the record before us which does not reveal satisfaction of the continuing duty to disclose. We conclude, therefore, that the state failed to satisfy its continuing duty to disclose.
The trial judge did not rule on whether the state had adequately complied with discovery procedures, and apparently did not consider the sanctions for non-compliance provided in La. C.Cr.P. Art. 729.5, one of which, as requested by defendant, is prohibiting the party from introducing into evidence the subject matter not disclosed. The trial judge ultimately ruled that the statements were admissible as res gestae. Whether the statements are res gestae is irrelevant to whether the state complied with discovery. On the record before us we find that the trial judge erred by failing to impose some remedial sanction as provided for in La.C.Cr.P. Art. 729.5.
The failure of the state to comply with the discovery procedure, however, will not automatically command reversal. The defendant must show prejudice before the court will reverse his conviction. The court will review the record for a determination of whether any prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Sweeney, 443 So.2d 522 (La. 1983); State v. Ray, 423 So.2d 1116 (La. 1982).
The controversial statements are those made by defendant both before and after the crime to which Robert Lloyd testified. The most critical evidence against defendant is the eyewitness testimony of Wilbert Byes. The statements to which Robert Lloyd testified do not affect Byes's credibility or corroborate his account of the shooting. Although evidence of the statements increases the amount of evidence against defendant, we cannot say that any prejudice which resulted caused the trier of fact to reach the wrong conclusion.
Likewise as to the reports which defendant was provided prior to trial, we do not find that any prejudice which resulted caused the jury to reach the wrong conclusion.
Therefore, although the state violated discovery procedure and the trial judge appears to have erred in his rulings on defendant's objections concerning discovery non-compliance, we find that these errors do not warrant a reversal because on the record before us we are convinced that the jury reached the correct conclusion.
Assignment of Error No. 3
Defendant argues that the trial court erred by sustaining the state's objection *947 to defense counsel's questioning of Wilbert Byes concerning his military court-martial. Defendant contends that a court-martial should be considered the same as a conviction and available for impeachment. A court-martial does not necessarily involve a criminal prosecution, and being "court-martialled" does not mean being convicted of whatever violation was charged. To court-martial means to subject to trial; the term alone reveals neither the nature of the alleged violation nor the outcome of the proceedings, i.e., whether the accused was convicted.
Defense counsel asked Wilbert Byes whether he was "ever the subject of any court-martial proceedings?" Byes replied, "Yes, Sir." The state objected and after a bench conference the judge sustained the objection. Defense counsel asked no more questions on this issue.
From the record we know neither the nature nor the outcome of the court-martial. Since this genre of impeachment permits the use of criminal convictions only, without a proper predicate foundation bald reference to a court-martial is not proper. From the record before us we find that the trial judge did not err.
Assignment of Error No. 5
Defendant contends that the trial judge erred by ruling that N.O.P.D. criminalist, Officer David Waguespack is an expert in blood splatter analysis. Officer Waguespack testified that he analyzes evidence submitted to the laboratoryperforming microscopic tests, submitting his findings and testifying as an expert witness. He was then qualified as an expert witness in the identification of blood, hair and glass samples. He then testified to evidence concerning the knife used to slash the tire, and the hair and glass comparisons found on the scene, in the automobile and on the victim. The court sustained an objection that the witness not be allowed to testify to blood splatter analysis.
Later in the testimony, the State began to qualify Officer Waguespack as an expert for blood splattering. The witness testified that he has studied evidence of blood splattering during his sixteen years of work in the crime laboratory. He postulated that he has worked on perhaps twenty cases of blood splattering. Although he has not personally conducted any studies, he has aided other people in their studies. He has read literature on the subject. He has attended courses where blood splatter was discussed. He has never been qualified before as an expert in blood splatter analysis, but he has never been denied that status.
On cross, Waguespack testified that he has not written anything in the field, but has lectured on the subject. He said that he has a degree in biological science, but not physics. The court then qualified him as an expert.
The trial judge is vested with wide discretion in determining the competence of an expert witness under La. R.S. 15:466. Competence of an expert is a question of fact to be determined within the sound discretion of the trial judge. The trial judge's rulings on the qualification of expert witnesses will not be disturbed in the absence of manifest error. State v. Trosclair, 443 So.2d 1098 (La.1983).
Defendant argues that to be considered an expert in blood splatter analysis Officer Waguespack needs more and better qualifications. We do not find, however, that the trial judge's ruling that his qualifications were sufficient to allow him to testify as an expert was clearly wrong. We will not disturb that ruling, and therefore, we find no merit in this assignment of error.
Assignment of Error No. 6
Defendant complains that the trial court erred in refusing to give the accomplice instruction.
The trial judge is required to give requested jury charges which do not require qualification, limitation, or explanation and are not included in the general charge or another special charge, provided they are wholly correct and pertinent to the case. La. C.Cr.P. art. 807. This rule is a corollary of the trial court's obligation to charge the jury as to the applicable law in the *948 case. He is required to cover every phase of the case supported by the evidence whether or not he accepts it as true. La. C.Cr.P. art. 802; State v. Marse, 365 So.2d 1319 (La.1978).
The defendant argues that his defense to the crime was that Byes and Legania were his accomplices. This theory is contradicted by the record: the defendant's theory of the case was that he was with his girlfriend at the time of the crime. Thus, the accessory accusation was not part of the case. Nor was it supported by the evidence. All witnesses testified that Ancar killed his victim without help from the others.
The defendant also suggests that he wished to inform the jury of these men's arrest for the same crime. That information is not proper subject matter for jury charges.
Lastly, the "accomplice" instruction desired by the defendant is nothing more than an argument that those witnesses were biased or prejudiced, having a self-interest in the case. These attacks on the witnesses' credibility were adequately accomplished during cross-examination.
This assignment is without merit.
Assignment of Error No. 7
Defendant argues that the trial court unduly restricted the voir dire.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination. La. Const. Art. 1, Sec. 17 (1974).
The accused's right to intelligently exercise cause and peremptory challenges may not be curtailed by the exclusion of non-repetitious voir dire questions which reasonably explore the juror's potential prejudices, predispositions or misunderstandings relevant to the central issues of the particular case. State v. Monroe, 329 So.2d 193 (La.1976). On the other hand, a trial judge in a criminal case has the discretion to limit voir dire examination, as long as the limitation is not so restrictive as to deprive defense counsel of a reasonable opportunity to probe to determine a basis for challenge for cause and for the intelligent exercise of peremptory challenges. State v. Williams, 457 So.2d 610 (La.1984); State v. Duplessis, 457 So.2d 604, 606 (La. 1984). The trial judge's rulings will not be disturbed in the absence of a clear abuse of discretion. C.Cr.P. art. 786; State v. Perry, 420 So.2d 139 (La.1982); State v. Chevalier, 458 So.2d 507 (La.App. 4th Cir. 1984).
The defendant makes four specific allegations of impermissible limitation. First, he complains that he should have been allowed to rehabilitate a prospective juror. The juror testified that he knew the defendant and that knowledge would affect his ability to be fair and impartial.
The assistant district attorney stated, "I have no problem excusing the juror since he knows the defendant." Defense counsel then questioned the prospective juror, ultimately requesting that he be allowed to continue the questioning outside of the presence of the other prospective jurors. The trial judge denied this request and a bench conference ensued. Thereafter the court confirmed that the juror considered that his knowing defendant might affect his partiality, and then the court asked, "Anything further on the challenge for cause?" Defense counsel replied, "I'd submit it." Without objection from either side the court excused the juror. Defendant has made no showing that the action of the trial judge was in any way improper. Further, it is doubtful that any further questioning would have rehabilitated the juror, and surely had further questioning revealed that the juror held defendant in disrepute, defendant would have wanted him excused.
Defendant's second complaint concerns the trial judge's refusal to allow him to ask prospective jurors who had previously served on juries whether they agreed with the verdicts of those juries. Defendant may ask prospective jurors, "Have you ever served on a criminal jury before?", "What was the charge in that case?", "What was the verdict in that case?". See State v. Holmes, 347 So.2d 221 (La.1977). The trial judge permitted questions such as *949 those, but refused to permit "individual probing and/or questions by any attorney as to how any prospective juror voted in any previous case." A complete reading of State v. Holmes, supra, reveals the Supreme Court's position that there is no specific ground for prohibiting defendant from obtaining this information.
"Undoubtedly the defense is entitled to wide latitude in examining prospective jurors. This right is, however, to be exercised within the discretion of the trial judge who determines the scope of the examination under the prevailing facts and circumstances. La.Code Crim. Pro. art. 786. And when the question arises whether voir dire examination has been unduly restricted, the disallowance of a proper question is not autometically reversible. In evaluating the fairness of the ruling the entire examination must be considered. State v. Monroe, 329 So.2d 193 (La.1976); State v. Jones, 315 So.2d 650 ([La.] 1975).
State v. Vinet, 352 So.2d 684, 687 (La. 1977).
In State v. Holmes, supra, the court considered the possible unfairness if the State had prospective juror's prior jury-service voting records and the defense did not. In the record of this case there is nothing to suggest that the State had this information made unavailable to defendant. Even assuming the State did have this information, however, defendant has not shown that any prejudice resulted from the trial judge's restriction. See State v. Nicholas, 397 So.2d 1308, at 1316-1317 (La.1981). Defendant has not shown that his voir dire was so restricted as to prevent a fully meaningful and effective examination of prospective jurors and the intelligent exercise of his right of peremptory challenge. We find that any error was essentially harmless.
Defendant also complains that the court announced to the jury his exhaustion of his allotment of peremptory challenges. The judge was conversing with defense counsel, albeit in front of the jury, informing him that he had no more peremptory challenges and could henceforth challenge prospective jurors for cause only. Counsel made no objection to the comment, and on appeal defendant has made no showing of why this comment may have been improper. We find no error.
Defendant also argues that his challenge for cause should have been granted as to a prospective juror who was twenty-years retired from the New Orleans Police Department. Defendant contends that despite the prospective juror's unwavering assertion that he would be fair and impartial, his sixteen years as a police officer and present receipt of a pension "implies a bias in favor of police testimony and put him in a position of becoming an expert in police procedure with the other jurors." The record does not support this contention. We have closely scrutinized the voir dire of this prospective juror and have found nothing to indicate that the trial judge erred by denying the challenge for cause.
Further, we reviewed the entire voir dire and find that defendant was afforded full and fair examination of the prospective jurors.
DECREE
For the reasons provided, having found no basis in defendant's assigned errors to warrant reversal, and having found no errors in the pleadings and proceedings, La. C.Cr.P. Art. 920, we affirm defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] Defendant's assignment of error number 4 was neither briefed nor argued and is considered abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585237/ | 508 So.2d 26 (1987)
SEBRING UTILITIES COMMISSION, Appellant,
v.
HOME SAVINGS ASSOCIATION OF FLORIDA, a State of Florida Chartered Savings & Loan Association, and American Homes Service Corporation, a Florida Corporation, Appellees.
No. 86-1366.
District Court of Appeal of Florida, Second District.
March 18, 1987.
As Modified on Denial of Rehearing June 5, 1987.
*27 Andrew B. Jackson, Sebring, and Steven L. Brannock of Holland & Knight, Tampa, for appellant.
H. Rex Owen and Bruce Crawford of Law Offices of H. Rex Owen, St. Petersburg, for appellees.
SCHEB, Acting Chief Judge.
Appellant Sebring Utilities Commission challenges a final judgment awarding treble damages to appellee Home Savings Association for the Commission's violation of antitrust laws. We reverse.
The Sebring Utilities Commission was established by the Florida Legislature pursuant to Chapter 23535, Laws of Florida (1945). The Commission operates public municipal electric and water utilities for the city of Sebring and also serves customers outside the municipal boundaries. Home Savings was constructing an office building outside the city limits and applied to the Commission for water service. Home Savings preferred to purchase electricity from Florida Power Corporation, a private utility, which competes with the Commission in areas outside the city of Sebring. The Commission, however, informed Home Savings that its water service application would not be approved unless it also agreed to purchase electricity from the Commission. Home Savings refused, and when the Commission, in April 1984, formally denied its application, Home Savings proceeded to install a private well to supply its water needs.
Home Savings brought suit against the Commission in May 1984, alleging the Commission's policy of tying together of water and electrical services was arbitrary and unjustly discriminatory. Home Savings sought damages based on the Commission's refusal to extend water service and its refusal to provide fire protection to the building without the tie-in of electricity. In February 1985, Home Savings added to its claim a demand for treble damages, alleging the tie-in of water and electrical services violated the Florida Antitrust Act of 1980. The Commission moved to strike the antitrust claim urging immunity from antitrust liability, but the motion was denied.
At a nonjury trial the Commission presented evidence of financial difficulties as justification for its tie-in policy. Revenues from both the water and electrical systems were pledged to repay the indebtedness on its $92 million in bonds issued in 1981. Yet, the Commission's witnesses testified that sufficient revenues were not being generated to satisfy the debt service on these bonds. Additionally, some reports indicated the need to increase the capacity of the water system. Testimony further demonstrated that the tie-in policy was adopted as a result of these economic pressures to increase the Commission's income. Furthermore, the Commission's evidence demonstrated that Home Savings never made separate application for fire protection. There was, however, evidence presented that fire protection was automatically included when water service was afforded by the Commission.
The trial court ruled that the Commission's practice of tying water and electrical services together was unjust and discriminatory and that its denial of Home Savings' application for water service was invalid. The court awarded Home Savings $76,466.13 damages for the amount it expended to install water and fire protection systems. The trial court further ruled the tie-in was *28 a violation of Florida's antitrust laws and that the Commission was not immune from suit under the antitrust act. Hence, the court awarded treble damages as provided in section 542.22(1), Florida Statutes (1983), resulting in an award of $229,398.39. The court retained jurisdiction to determine attorneys' fees and costs. From that judgment, this appeal by the Commission ensued.
At the outset, we note that in ruling the tie-in policy unjust and discriminatory, the trial court apparently followed our decision in Edris v. Sebring Utilities Commission, 237 So.2d 585 (Fla. 2d DCA), cert. denied, 240 So.2d 643 (Fla. 1970). In Edris, this court held the Commission's policy requiring customers residing outside the city to purchase electricity as a condition precedent to obtaining city water was unjust, discriminatory, and invalid. Missing from Edris was any economic justification for the tie-in policy. In contrast, the Commission in this case presented ample economic justification for having adopted a policy of tying water and electric services together. Hence, the cases are factually distinguishable and Edris does not control the result in this case.
Courts will not interfere with a municipal utility's exercise of its authority as long as the municipality does not arbitrarily discriminate between its customers and can present reasonable justifications for its actions. Pinellas Apartment Association, Inc. v. City of St. Petersburg, 294 So.2d 676 (Fla. 2d DCA 1974). A municipality's decision is presumed valid, and the burden is on the challenger to prove it is unjust or arbitrary. Clay Utility Co. v. City of Jacksonville, 227 So.2d 516 (Fla. 1st DCA 1969).
In this situation, we cannot say the Commission's refusal to provide water only to Home Savings was discriminatory because such a policy was applied to all potential customers outside the municipal limits. The financial difficulties experienced by the Commission and its need to increase revenues presented a reasonable economic justification for the tie-in policy. Consequently, we hold the trial court erred in awarding damages for the Commission's refusal to provide water service only to Home Savings. It necessarily follows that the Commission's failure to provide fire protection was not unreasonable.
Florida recently enacted section 542.235, Florida Statutes (1985), expressly immunizing municipalities from antitrust damages. However, the Commission concedes this recently enacted immunity is not available to it in this suit. See § 542.235(5), Fla. Stat. (1985). Yet, it argues that the Local Government Antitrust Act, 15 U.S.C. § 35, which became effective September 24, 1984, and grants absolute immunity from damages to all local governments in federal antitrust litigation, should apply. The Commission correctly points out that section 542.20, Florida Statutes (1983), of the Florida Antitrust Act provides any activity or conduct exempt under federal antitrust law is also exempt from the Florida Antitrust Act. See also East Naples Water Systems, Inc. v. Board of County Commissioners, 473 So.2d 309 (Fla. 2d DCA 1985) (County Water and Sewer System Law § 153.01 et seq. exempts boards of county commissioners, water-sewer districts and their members from Florida Antitrust Act). Since we think the Commission is entitled to immunity under the standard in effect prior to the enactment of the federal immunity statute, we do not decide whether the federal immunity statute is available to the Commission.
In Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985), the United States Supreme Court was presented with the question of whether a municipality's anticompetitive activities are protected by state action exemption to the Federal Antitrust Laws when the activities are authorized but not compelled by the state and the state does not actively supervise the anticompetitive conduct. The court held that a municipality is exempt from antitrust laws if its "anticompetitive activities [are] authorized by the state `pursuant to state policy to displace competition with regulation or monopoly public service.'" 105 S.Ct. at 1716 (quoting City of Lafayette v. Louisiana Power & Light *29 Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978) (Brennan, J. plurality). The court observed that state authorization is shown if the municipality demonstrates it is "engaging in the challenged activity pursuant to a clearly expressed state policy." Hallie, 105 S.Ct. at 1717. Further, the court opined that it is not necessary to show that the legislature explicitly intended the municipality's conduct to have anticompetitive effects. Rather, it is only necessary to demonstrate the legislature contemplated anticompetitive conduct would result from the authority granted the municipality. Hallie, 105 S.Ct. at 1718-19.
Thus, we must determine whether Chapter 23535, Laws of Florida (1945), authorizing the creation of the Commission, and the Florida Statutes authorizing municipal water systems satisfies the "clear articulation" test of Hallie. The latter question was answered affirmatively in Falls Chase Special Taxing District v. City of Tallahassee, 788 F.2d 711 (11th Cir.1986). The Falls Chase court quoted extensively from Auton v. Dade City, 783 F.2d 1009 (11th Cir.1986), and held that the Florida Statutes authorizing municipal water systems satisfy the "clear articulation" requirement expressed in Hallie. We think Falls Chase states the correct view on this issue.
Section 7 of Chapter 23535, Laws of Florida (1945), gives the Commission "exclusive general supervision, charge, operation and management of all of the public utilities of the City of Sebring." Section 9 grants it "full power and exclusive authority to fix rates and charges of electricity, gas and water ... as if provided by an ordinance of the City." We hold these provisions evidence a clearly expressed state policy to displace competition with monopoly public service. Delegation of regulatory power is an indication the legislature recognized municipal public works often require anticompetitive practices. See Auton v. Dade City, 783 F.2d at 1010. We recognize that general law specifically excludes utilities owned and operated by municipalities from regulation by the Public Service Commission. See §§ 366.02, 366.11 and 367.022(2), Fla. Stat. (1983). However, as the Supreme Court concluded in Hallie, "the active state supervision requirement should not be imposed in cases in which the actor is a municipality." Hallie, 105 S.Ct. at 1720.
Accordingly, we hold the trial court erred in finding the Commission violated the Florida Antitrust Act. We direct the trial court to vacate the judgment of damages against the Commission and enter judgment in its favor.
RYDER and FRANK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585238/ | 24 So.3d 480 (2006)
Michael Jerome LEWIS
v.
STATE of Alabama.
CR-03-0480.
Court of Criminal Appeals of Alabama.
April 28, 2006.
Opinion on Return to Remand November 2, 2007.
Rehearing Denied January 18, 2008.
*488 Stephen A. Strickland, Birmingham, for appellant.
Troy King, atty. gen., and Margaret Mary (Missy) Fullmer and Jasper B. Roberts, Jr., asst. atty. gen., for appellee.
*489 WISE, Judge.
The appellant, Michael Jerome Lewis, was convicted of capital murder in connection with the death of Timothy John Kaye. The murder was made capital because it was committed "during a kidnapping in the first degree or an attempt thereof." See § 13A-5-40(a)(1), Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 10-2, that Lewis be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Lewis to death.
Lewis raises a number of issues for this Court's review. However, our initial review of the record reveals that we must remand this case for additional action by the circuit court so that we may adequately address the merits of one of Lewis's claims.
Lewis contends on appeal that his due-process rights were violated when the prosecution used its peremptory challenges to remove African-Americans from the jury venire, thus violating the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
In Batson, the United States Supreme Court held that prospective African-American jurors could not be struck from an African-American defendant's jury based solely on their race. The Supreme Court later extended its holding in Batson to apply to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); to defense counsel in criminal cases in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); and to gender-based peremptory challenges in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
The State contends that because no Batson objection was made below and that the error, if any, does not rise to plain error, this Court should reject Lewis's claim.
"Under the `plain error' doctrine, as enunciated in rule 45A, [Ala.R.App.P.,] the Court of Criminal Appeals is required to search the record in a death penalty case and notice any error (ruling or omission) of the trial court, and to take appropriate action, `whenever such error has or probably has adversely affected the substantial right of the [defendant],' in the same manner as if defendant's counsel had preserved and raised such error for appellate review."
Ex parte Johnson, 507 So.2d 1351, 1356 (Ala.1986). The plain-error analysis has been applied to death-penalty cases when counsel fails to make a Batson objection. Pace v. State, 714 So.2d 316, 318 (Ala. Crim.App.1995), opinion after remand, 714 So.2d 320 (Ala.Crim.App.1996), reversed in part on other grounds, 714 So.2d 332 (Ala. 1997). For plain error to exist in the Batson context, the record must raise an inference that the State engaged in "purposeful discrimination" in the exercise of its peremptory challenges. See Ex parte Watkins, 509 So.2d 1074 (Ala.1987).
A defendant makes out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" surrounding a prosecutor's conduct during the defendant's trial. Batson, 476 U.S. at 94, 106 S.Ct. 1712. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging" a targeted class of jurors. 476 U.S. at 97, 106 S.Ct. 1712. While there may be "`any number of bases' on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause...., the prosecutor must give a *490 `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges." 476 U.S. at 98 n. 20, 106 S.Ct. 1712. It is then left to the trial court to determine whether the defendant has established "purposeful discrimination." 476 U.S. at 98, 106 S.Ct. 1712.
After Lewis's appeal was taken under submission by this Court, the United States Supreme Court released two decisions addressing Batson claims Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), and Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). In Miller-El, the prosecutors used peremptory strikes to remove 10 of 11 African-American jurors from Miller-El's capital-murder trial. Miller-El objected, claiming that the strikes were racially based and could not be presumed to be legitimate, given the district attorney's office history of excluding African-Americans from criminal juries. The trial court denied Miller-El's request for a new jury, and his trial ended with a conviction and the imposition of the death sentence. While his appeal was pending, the Supreme Court released Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), holding that discrimination by a prosecutor on the basis of race in selecting a defendant's jury violated the Fourteenth Amendment. On remand, the trial court found no showing that prospective African-American jurors were struck because of their race. Miller-El's conviction was affirmed on appeal, and he sought federal habeas relief. The federal district court denied Miller-El relief, as did the United States Court of Appeals for the Fifth Circuit. After comparing similarly situated black and white jurors, the "shuffling" of the venire panel, and the disparate questioning of black and white jurors, the Supreme Court held that the state court's factual findings as to nonpretextual nature of the state's race-neutral explanations for its use of peremptory challenges to excuse 10 of 11 African-American jurors were shown to be wrong by the requisite clear and convincing evidence, warranting the grant of federal habeas relief. 545 U.S. at 253, 125 S.Ct. at 2339-40.
In Johnson, the prosecution used 3 of its 12 strikes to remove all 3 African-American jurors from Johnson's jury leaving him to be tried and convicted of second-degree murder by an all-white jury. The California Court of Appeals set aside the conviction, but the California Supreme Court reinstated Johnson's conviction, holding that Batson permitted state courts to establish the standards used to evaluate the sufficiency of prima facie cases of purposeful discrimination in jury selection. The United States Supreme Court reversed, holding that California's "more likely than not" standard was an incorrect standard by which to determine the sufficiency of a prima facie case of purposeful discrimination in jury selection. Given the California Supreme Court's use of an incorrect standard, together with the fact that the prosecution removed of all 3 African-American jurors from the venire panel, the Supreme Court held that this evidence was sufficient to establish a permissible inference of discrimination to establish a prima facie case of discrimination under Batson, shifting the burden to the state to provide an adequate explanation for the jurors' exclusion by offering race-neutral reasons for its strikes. 545 U.S. at 239, 125 S.Ct. at 2418-19.
The record here supplies an inference of discrimination on the part of the State. Initially, we note that the record is conflicting as to the number of prospective jurors from which Lewis's jury was selected. The initial jury list of potential jurors consists of 189 individuals. (C. 115-132.) *491 The strike list indicates that Lewis's jury was struck from potential jurors no. 1-96. (C. 133-34.) Eighteen of the 96 jurors were African-American. However, what appears to be the actual strike list indicates that Lewis's jury was struck from a pool of 53 jurors, and only 5 of those 53 were African-American. (C. 135.) The transcript of voir dire proceedings does not clarify this discrepancy. Although the transcript indicates that the roll of jurors was called and that all were present, the individual names were not recorded by the court reporter so that this Court could determine the exact number of prospective jurors present for voir dire. The record does, however, indicate that eight potential jurors were excused from further service, based on their responses during voir dire. Of the eight jurors excused, six were white and two were African-American, leaving five African-Americans.[1] After voir dire concluded, the prosecutor and defense counsel exercised 41 peremptory challenges to select Lewis's jury. The State used its 21 strikes to strike 4 of the 5 remaining African-Americans from the venire. Defense counsel struck no African-Americans. Lewis's jury consisted of 11 white jurors and 1 African-American juror. Both alternate jurors were white.
The State contends that no inference exists that the State engaged in purposeful discrimination because of the meaningful voir dire directed at the jurors as a whole. The record indicates that the African-American jurors as well as the white jurors responded to the questions posed during voir dire. Moreover, it appears that the African-American jurors and some of the white jurors who gave similar responses to the questions posed were struck, while other white jurors were not. Although the State may have race-neutral and non-discriminatory reasons for its actions, we conclude that it is necessary to remand this case for a Batson hearing, in light of the many levels of judicial scrutiny that occur when a defendant is convicted of a capital offense and sentenced to death. As the Supreme Court noted in Miller-El:
"[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U.S., at 96-97, 106 S.Ct. 1712; Miller-El v. Cockrell, 537 U.S. [322] at 339, 123 S.Ct. 1029 [(2003) ]. It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, 476 U.S., at 106, 106 S.Ct. 1712 (Marshall, J., concurring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals'[] and the dissent's substitution of a reason for eliminating [the prospective juror] does nothing to satisfy the prosecutors' burden of stating a racially neutral explanation for their own actions."
545 U.S. at 252, 125 S.Ct. at 2331-32.
Based on the foregoing, this case is remanded to the circuit court with directions that that court hold a Batson hearing. If *492 the prosecution cannot provide race-neutral reasons for its use of peremptory challenges against African-American jurors, then Lewis shall be entitled to a new trial. See Ex parte Bankhead, 585 So.2d 112 (Ala.1991); Pace v. State, 714 So.2d 316 (Ala.Crim.App.1995), opinion after remand, 714 So.2d 320 (Ala.Crim.App.1996), reversed in part on other grounds, 714 So.2d 332 (Ala.1997); Guthrie v. State, 616 So.2d 913 (Ala.Crim.App.1992).
The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 90 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court and the circuit court's specific findings of fact. Because it is necessary to remand this case, we pretermit discussion of Lewis's remaining claims.
REMANDED WITH DIRECTIONS.
McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.
On Return to Remand
WISE, Judge.
Michael Jerome Lewis was convicted of capital murder in connection with the death of Timothy John Kaye. The murder was made capital because it was committed "during a kidnapping in the first degree or an attempt thereof." § 13A-5-40(a)(1), Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 10-2, that Lewis be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Lewis to death.
One of the issues raised on appeal by Lewis was that his due-process rights were violated when the prosecution used its peremptory challenges to remove African-Americans from the jury venire, thus violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On April 28, 2006, we remanded this case for additional action by the circuit court with regard to this claim. Lewis v. State, [Ms. CR-03-0480, April 28, 2006] 24 So.3d 480 (Ala.Crim.App.2006). The circuit court has complied with our instructions and on return to remand has submitted a transcript of the Batson hearing conducted by the circuit court, together with a copy of the circuit court's specific findings of fact regarding Lewis's Batson claim.
Facts
During the early morning hours of April 26, 1997, Lewis, James Anthony Free, April Hargedon, and Timothy John Kaye went to Lewis's mobile home in Houston County. Free and Kaye became involved in an altercation, which resulted in Free's beating Kaye in the head with his fist and a beer bottle. At some point, Lewis also became involved in the altercation. Free and Lewis then started arguing over who would shoot Kaye. The badly beaten Kaye was subsequently shot twice in the head. Kaye was placed in the back of his pick-up truck and taken across the state line into Holmes County, Florida. Lewis and Free then threw Kaye's body from a bridge on Highway 2 into the Choctawhatchee River. Lewis and Free later returned to Houston County, Alabama, in Kaye's truck, drove the truck to a field alongside Sonny Mixon Road, and set it on fire.
The evidence presented at trial tended to establish the following. On the afternoon of Friday, April 25, 1997, 38-year-old Timothy John Kaye left his parents' home in Houston County, telling his parents that he planned to attend his daughter's softball game. Later that evening, around 7:30 or 8:00 p.m., Sarah Kaye talked to her son again. Kaye asked his mother to tell his father that he would be by to pick him *493 up around 6:00 a.m. on Saturday; the two men planned to go to a relative's house in Mississippi to pick up some shrimp. Kaye failed to show up at his parents' house the following morning, or for his daughter's birthday party on Sunday, April 27; repeated attempts to contact him were unsuccessful.
On April 27, Investigator Richard St. John of the Houston County Sheriff's Department was dispatched to a location on Sonny Mixon Road in Houston County. Upon arrival, Investigator St. John saw a burned pick-up truck in a field. The truck was towed to an impound lot in Dothan. After authorities determined that the vehicle was registered to Timothy John Kaye, the Houston County Sheriff's Department attempted to contact Kaye and left a message on Kaye's answering machine regarding the discovery of the vehicle and its condition.
On the morning of Tuesday, April 29, after repeated attempts to contact their son, the Kayes "broke into" Timothy Kaye's home. Inside the house they found a birthday card for his daughter on the kitchen bar; the shirt and jogging shorts he wore to sleep in were laying on his bed. As best the Kayes were able to determine, all that was missing from their son's closet were some "casual clothes" stone-washed jeans, a sports shirt, and a pair of athletic shoes. When the Kayes listened to the messages on their son's answering machine, they discovered a message from the Houston County Sheriff's Department asking that their son contact the sheriff's department. The Kayes then contacted the Houston County Sheriff's Department and subsequently filed a missing-person report on their son. Given the circumstances, an investigation was launched into Kaye's disappearance.
The investigation of Kaye's disappearance led Houston County authorities to interview April Hargedon. During an April 30, 1997, interview, Hargedon told Investigator Donald Valenza and Commander Bill Land that on Friday, April 25, she accompanied Michael Lewis and Tony Free to the Corner Bar, located across the state line in Florida. The trio remained at the Corner Bar for several hours before returning to the Drifters' Club in Dothan, Alabama. According to Hargedon, Free was related to the Ready family, owners of the Drifters' Club. Inside the Drifters' Club, Hargedon lost contact with Free. However, Hargedon saw Lewis make contact with Kaye, a longtime acquaintance of Lewis's. At some point, Hargedon, Lewis, Kaye, and Kristy Hughes Free's girlfriend decided to leave the Drifters' Club and drive to the Players' Club. The group left the Drifters' Club, got into Lewis's Ford Bronco sport-utility vehicle, and proceeded toward the Players' Club. As Kristy Hughes was driving Lewis's Bronco to the Players' Club, the foursome was stopped by a Dothan police officer. After the officer determined that Hughes had an outstanding warrant, she was placed under arrest and taken into custody. Because Hargedon had no driver's license and Lewis and Kaye had been drinking, the officer called a taxi for them. When the taxi arrived, Hargedon, Lewis, and Kaye returned to the Drifters' Club. The trio went back inside the club for a while long enough for Kaye to consume another beer and Lewis to purchase a bottle of Canadian Mist brand whiskey. Sometime after midnight during the early morning hours of Saturday, April 26[1] the trio left the Drifters' Club in Kaye's maroon truck and drove to Lewis's mobile home.
*494 At the mobile home Lewis and Kaye sat around, drinking and talking. Hargedon stated that Lewis and Kaye seemed to be on good terms with each other, with one of them commenting that they had known each other for 20 years. It was not until Tony Free showed up that difficulties arose. According to Hargedon, Free exhibited "an attitude." At some point after Free arrived, Lewis and Kaye went outside to engage in what appeared to Hargedon to be a brief, good-natured wrestling match. After several minutes, Lewis and Kaye stopped wrestling and began walking back inside. However, Free told Kaye that it was Free's turn to wrestle. Kaye told Free that he did not want to wrestle again and continued walking toward the mobile home. At this point, Free hit Kaye in the back of the head with a beer bottle, causing Kaye to fall to the ground. Free fell to the ground with Kaye and began hitting him.
While Lewis and Hargedon looked on, Free "jumped on" Kaye and pinned Kaye to the ground by sitting on his chest and/or abdominal area, leaving Kaye unable to defend himself as Free continued to hit him. According to Hargedon, the beating lasted 15-20 minutes, and throughout the beating Kaye kept asking Free, "Why are you doing this?" While Free continued to beat Kaye, Lewis went inside the mobile home and returned with a shotgun. Hargedon stated that Lewis returned with the shotgun, but that he made no effort to stop Free from beating Kaye. Instead, Hargedon stated that Lewis said "`We got to finish this' or something to that effect." Not knowing what Lewis meant by this comment, Hargedon replied, "I don't want nobody shooting nobody in front of me," then took the shotgun from Lewis and put it back inside the mobile home. Because Hargedon had never seen a beating as vicious as the one Free was inflicting on Kaye, she became concerned for her own safety. As Kaye lay on the ground moaning, she heard first Free, and then Lewis say, "Let me shoot him," referring to Kaye. In Hargedon's words, "I just knew I needed to get out of there."
Hargedon stated that during the exchange between Lewis and Free over who would shoot Kaye, Lewis looked up and called out to a man across the road, "Look what I got." According to Hargedon, the man declined, stating "he didn't need no shit, he was in enough." Hargedon stated that she took advantage of Lewis's conversation with the unknown man to slip into the darkness and make her escape.
The man whom Lewis called out to was Mike Harger, the husband of Lewis's cousin Kandy Harger. The Hargers lived near Lewis; in fact, Lewis's mobile home was directly across the road from the Hargers' barn. On the morning of April 26, 1997, Kandy Harger awakened around 4:00 a.m. She left her house and went to the barn to check on the couple's gamecocks, because the couple was preparing to go to a cockfight. While checking on the gamecocks, Harger heard the sounds of someone being hit and/or beaten; she also heard someone moaning. The sounds, which Harger described as "loud," came from the direction of Lewis's residence; she continued to hear these sounds as long as she was outside. After she went back inside her house, the telephone rang. When Harger answered the telephone, she discovered that it was her cousin, Mike Lewis. Lewis wanted Harger's husband to come over to his residence. Harger told her husband what Lewis had said. A short while later, she returned to the barn. Harger's husband subsequently drove the couple's truck to the barn to load the gamecocks. Harger heard Lewis call out to her husband to "come over." Harger stated she was fearful of what was going on at Lewis's and that she did not want her husband *495 to go over there. Her husband did not go over to Lewis's residence. Instead, the couple loaded up their gamecocks and left. Although the sounds coming from Lewis's yard upset Harger, she did not call emergency 911 or notify the authorities because her husband would not let her. When she and her husband left around 5:00 a.m., Harger could still hear moaning and groaning coming from the area of Lewis's mobile home.
Authorities obtained a search warrant for Lewis's mobile home and the surrounding yard. On April 30, Dothan Police Officer Ray Owens executed the search warrant. During the search, Owens discovered spots of blood on two vehicles parked outside Lewis's mobile home; a hair was embedded in one of the blood spots. Authorities also found a number of items lying on the ground, including a man's Timex brand wristwatch with a torn band, a comb, a pack of cigarettes, several Canadian Mist brand whiskey bottles, and a number of beer bottles. Inside the mobile home, authorities discovered reddish stains that appeared to be "watered-down blood" around the bathroom sink near the back bedroom, a loaded 12-gauge shotgun, and a 5-gallon can containing what appeared to be kerosene. The wristwatch found outside Lewis's mobile home was later identified by Sarah Kaye as belonging to her son, Tim Kaye.
On May 4, 1997, Ray Darley was fishing in the Wildcat Cove area of the Choctawhatchee River in Holmes County, Florida, when he discovered the body of a white male "up against a log jam" in the river. Darley contacted local authorities and reported finding the body. Later that day, Investigator Donald Valenza of the Houston County Sheriff's Department traveled to Holmes County to meet with Holmes County investigators concerning the recovery of the body from the Choctawhatchee River. Upon observing the body, Valenza noted that the body was clothed in a green t-shirt, jeans, and white athletic shoes. Authorities discovered a set of keys in the front pants pocket; those keys were released to Valenza to determine whether the keys fit any property belonging to Tim Kaye. It was later determined that the keys unlocked Tim Kaye's truck, toolbox, and shed.
The body found in the Choctawhatchee River was identified as Tim Kaye. Dr. Marie Hermann, a district medical examiner for the 14th District of Florida encompassing Holmes County performed the autopsy on Kaye's body. Dr. Hermann's autopsy revealed that Kaye had suffered multiple blunt-force injuries, including three blunt-force injuries on the back of Kaye's head. Dr. Hermann also discovered two gunshot wounds on the back of Kaye's head, which she determined came from a small caliber weapon; one of the gunshots traveled through the skull and exited the head. Dr. Hermann determined Kaye's cause of death to be blunt-force trauma and/or two gunshot wounds to the head.
On May 8, 1997, Investigators Mark Johnson and Richard St. John of the Houston County Sheriff's Department traveled to 914 Matthews Road, DeFuniak Springs, Florida, to interview Rodney Ray Alford. The residence, located in an area identified as the Darlington Community, was approximately 3 miles from where Kaye's body was found and 50 miles from Houston County, Alabama. Alford told Johnson and St. John that Lewis had showed up at his son's residence on Saturday, April 26, 1997, between 6:00 and 6:30 a.m. as he, his son, and Buddy Slay were preparing to go fishing. Lewis was driving a maroon truck and was accompanied by a black-haired man that Lewis called "James," *496 who Alford later identified as James Anthony Free.
Alford observed that there was blood in the back of the truck as well as on the two men. Alford noticed that the blood on the two men appeared to be on their pants' legs and shoes. When Lewis got out of the truck, he had a bottle of Canadian Mist brand whiskey in his hand. Alford recalled Free and Lewis taking a hose and washing off their shoes. Alford stated that he did not ask Lewis and Free where the blood had come from and they did not volunteer any information about the source of the blood. Lewis and Free remained at the Alford residence for 45-60 minutes. While there, Alford observed them place a stick, a "car tag," and some floor mats in a fire that was burning outside the residence. However, before the two men left, one of them removed the tag from the fire and threw it in a well. Lewis asked Alford to accompany them to the liquor store, but he declined. Before leaving, Lewis told Alford, "It's family. Everything is all right."
Eddie Free testified that Lewis told him that he had shot Tim Kaye. According to Eddie, "they [Lewis and Free] shot him and they went to Florida and dumped him in the river and burned his truck." Lewis reportedly stated that he killed Kaye because he was a "snitch" and informant for Houston County law-enforcement officials.
Both Lewis and Free were indicted on charges of capital murder because the murder was committed during a kidnapping in the first degree or an attempt thereof. Free was tried first; he was convicted of capital murder and was sentenced to life imprisonment without the possibility of parole.[2] Free testified at length during Lewis's trial, setting out the details surrounding Kaye's murder and Lewis's involvement in it.
After both sides had rested and the circuit court had instructed the jury on the law applicable to Lewis's case, the jury returned a verdict finding Lewis guilty of capital murder, as charged in the indictment.
During the penalty phase of Lewis's trial, the State resubmitted all the evidence it had introduced during the guilt phase. Lewis offered the testimony of two witnesses: his parents, Wade Lewis and Collene Williams. Wade Lewis testified that his son was born in September 1953. Lewis's parents divorced in 1960, and both parents subsequently remarried. Lewis lived with his mother and stepfather until he was 16, when he went to live with his father. Wade Lewis described his son as a "good kid." He stated that his son worked with him in his floor-covering business; Lewis installed various types of floor covering for his father. According to Wade Lewis, his son was a good and conscientious worker who got along well with customers. Lewis testified that "several years" before the instant trial, Lewis was involved in an automobile accident that resulted in a broken neck. According to his father, Lewis had a lengthy and "difficult" recovery, but eventually was able to go back to work.
Collene Williams testified that following her divorce from Wade Lewis, she married Foy Ready. At the time of the marriage, Ms. Williams stated, Lewis was eight or nine years old. Ms. Williams described her son's relationship with his stepfather as "not real good." During the marriage, the family lived at the Parkway Motel. Ms. Williams testified that her son was *497 required to perform certain chores before and after school. Ms. Williams stated that Ready drank heavily and that he had a violent temper. Ms. Williams testified that Ready was physically abusive to both her and her son. On several occasions, Ready was physically abusive to Lewis, whipping him so severely that Lewis was unable to go to school. Ms. Williams testified that Lewis also saw his stepfather physically abuse Lewis's younger half-brother, Jimmy Ready. According to Ms. Williams, because of her husband's abusive nature, Lewis's grades fell, and he lost interest in school activities. Finally, when Lewis was 16, Ready's behavior became so bad that Ms. Williams sent Lewis to live with his father. Ms. Williams believed that as the years passed, Ready's abusive behavior resulted in Lewis having more difficulties interacting socially. Ms. Williams stated that Lewis had a close relationship with his half-brother, Jimmy Ready. According to Ms. Williams, Jimmy's death in January 1997 greatly affected Lewis, causing a change in his behavior.
During cross-examination, Ms. Williams admitted that despite his "difficult" relationship with Ready, Lewis continued to maintain contact with the Ready family, and patronized two of his stepfather's businesses the Drifters' Club and the Players' Club. Ms. Williams also stated that, during his lifetime, she had met the victim, Tim Kaye. According to Ms. Williams, her son and Kaye had known each other for approximately 20 years.
After both sides rested, the circuit court instructed the jury on the law applicable to the penalty-phase proceeding. The jury returned a verdict recommending, by a vote of 10-2, that Lewis be sentenced to death.
Standard of Review
In every case in which the death penalty is imposed, this Court must review the record for any plain error, i.e., for any defect in the proceedings, whether or not the defect was brought to the attention of the trial court. Rule 45A, Ala.R.App.P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
As this Court stated in Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001):
"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."
Although Lewis's failure to object at trial will not preclude this Court from reviewing an issue in this case, it will, *498 nevertheless, weigh against any claim of prejudice he makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).
Guilt-Phase Issues
I.
Lewis argues that his due-process rights were violated when the prosecution used its peremptory challenges to remove African-Americans from the jury venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Lewis argues that the record reflects that the prosecutor exercised disparate treatment when striking prospective jurors who were African-Americans and prospective jurors who were white. Lewis further argues that the reasons given by the State for using 4 of its 21 peremptory challenges to remove African-Americans from the jury were merely pretextual, given that similarly situated white jurors were not struck.
In Ex parte Branch, 526 So.2d 609 (Ala.1987), the Alabama Supreme Court announced the standard a reviewing court should use when evaluating whether a Batson violation has occurred. The court stated:
"The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider `all relevant circumstances' which could lead to an inference of discrimination. See Batson, 476 U.S. at 93, 106 S.Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:
"1. Evidence that the `jurors in question share[d] only this one characteristic their membership in the group and that in all other respects they [were] as heterogeneous as the community as a whole.' [People v.] Wheeler, 22 Cal.3d [258], 280, 583 P.2d [748], 764, 148 Cal.Rptr. [890], 905. For instance `it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions,' Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.
"2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
"3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ].
"4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.
"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355 (Fla.Dist.Ct.App. 1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).
"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in *499 the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, [503] So.2d at 352 and 355.
"7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.
"8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049.
"9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So.2d at 354, Turner, supra."
526 So.2d at 622-23. When reviewing a trial court's ruling on a Batson motion, this court gives deference to the trial court's ruling and will reverse that court's decision only if it is clearly erroneous. Yancey v. State, 813 So.2d 1, 3 (Ala.Crim.App. 2001); Farrior v. State, 728 So.2d 691 (Ala.Crim.App.1998); Merriweather v. State, 629 So.2d 77 (Ala.Crim.App.1993); Nance v. State, 598 So.2d 30 (Ala.Crim. App.1992); and Jackson v. State, 594 So.2d 1289 (Ala.Crim.App.1991).
As we previously noted, because Lewis made no Batson objection below, we review this claim under the plain-error standard; that is, whether the prosecutor's actions were erroneous and whether "such error has or probably has adversely affected the substantial right of the appellant." Rule 45A, Ala.R.App.P. This Court has applied a plain-error analysis in death-penalty cases when counsel failed to make a Batson objection. See, e.g., Pace v. State, 714 So.2d 316, 318 (Ala.Crim.App. 1995), opinion after remand, 714 So.2d 320 (Ala.Crim.App.1996), reversed in part on other grounds, 714 So.2d 332 (Ala.1997). For plain error to exist in the Batson context, the record must raise an inference that the State engaged in "purposeful discrimination" in the exercise of its peremptory challenges. See Ex parte Watkins, 509 So.2d 1074 (Ala.1987).
Concluding that the record supplied an inference of discrimination on the part of the prosecution, we remanded Lewis's case for additional findings regarding Lewis's Batson claim. As we previously noted, the record contains conflicting information concerning the number of prospective jurors from which Lewis's jury was selected. The initial jury list of potential jurors consisted of 189 individuals. (C. 115-32.) The strike list indicates that Lewis's jury was struck from potential jurors no. 1-96. (C. 133-34.) Indeed, our review of the voir dire indicates that juror number 5 was one of the prospective jurors, as was juror number 90. Eighteen of the 96 jurors were African-American. However, what appears to be the actual strike list indicates that Lewis's jury was struck from a pool of 53 jurors, and only 5 of those 53 were African-American. (C. 135.) The transcript of voir dire proceedings did not clarify this discrepancy, nor did the circuit court offer any explanation on remand regarding this discrepancy. Although the transcript indicated that the roll of jurors was called and that all were present, the individual names were not recorded by the court reporter so that this Court could determine the exact number of prospective jurors present for voir dire. The record indicated that eight potential jurors were excused from further service, based on their responses during voir dire. Of the *500 eight jurors excused, six were white and two were African-American, leaving five African-Americans.[3] After voir dire concluded, the prosecutor and defense counsel exercised 41 peremptory challenges to select Lewis's jury. The State used its 21 strikes to strike 4 of the 5 remaining African-Americans from the venire. Defense counsel struck no African-Americans. Lewis's jury consisted of 11 white jurors and 1 African-American juror. Both alternate jurors were white.
On remand, the court conducted an evidentiary hearing concerning the merits of Lewis's Batson claim. During the hearing, the prosecution offered the following reasons for striking four African-American prospective jurors:
Juror number 21: This juror was the State's fourth strike. She was struck because she had served on a jury that acquitted a defendant of child molestation. (Supp. R. 13.)
Juror number 40: This juror was the State's second strike. He was struck because he had served on a jury that acquitted a defendant of rape. (Supp. R. 13.)
Juror number 57: This juror was the State's sixteenth strike. He was struck because he had a misdemeanor conviction for writing a bad check. (Supp. R. 14.) The State offered a certified copy of a case action summary sheet from Houston District Court indicating a September 2000 conviction for this individual. (Supp. C. 25.)
Juror number 79: This juror was the State's nineteenth strike. He was struck because he had a misdemeanor conviction for harassment, and an arrest for menacing. (Supp. R. 14.) The State offered certified copies of various court documents from Dothan Municipal Court regarding these offenses. (Supp. C. 26-30.)
After a brief recess, defense counsel was given an opportunity to rebut the prosecutor's reasons for striking these jurors. Defense counsel first submitted a legal memorandum setting out a list of cases from Houston County involving Batson objections, including five instances where this Court had reversed convictions from Houston Circuit Court based on Batson violations. Next, defense counsel addressed the prosecutor's reasons for striking the four African-American jurors in Lewis's case. Much of the discussion centered around the prosecutor's reason for striking juror number 57. After confirming that the prosecutor struck juror number 57 because he had been convicted of writing a bad check, defense counsel offered certified copies of a case-action-summary sheet from Houston District Court and various other documents indicating that juror number 16, a white female, had been convicted of writing a bad check in November 2001. (Supp. C. 55-63.) Juror number 16 served on Lewis's jury.
The prosecutor stated that he was unaware that juror number 16 had been convicted of writing a bad check. The prosecutor maintained that, based on his records, juror number 16 had two convictions for what he termed minor traffic violations. The prosecutor indicated that he had not struck anyone who had been convicted of minor traffic violations; the only jurors struck because of traffic violations were those who had been convicted of driving while under the influence of drugs or alcohol. At the conclusion of the evidentiary hearing, the court took the *501 case under advisement. The court indicated that it would accept briefs from the parties before entering its written order.
Thereafter, the circuit court entered a written order making written findings of fact concerning the prosecutor's reasons for striking the four African-American jurors. The court concluded that the prosecutor had given race-neutral reasons for striking the four jurors. The court concluded that the prosecutor had not engaged in disparate treatment because juror number 57 a black male was struck based on a misdemeanor conviction for writing a bad check and juror number 16 a white female was not, because the court was "convinced that the State did not know about [juror number 16's] conviction." (Supp. C. 22.)
The circuit court concluded that the prosecutor's reasons for striking jurors number 21 and 40 were race-neutral. We agree. This Court has long held that the removal of an African-American veniremember based on prior jury service that resulted in an acquittal is a race-neutral reason. See, e.g., Brown v. State, 705 So.2d 871, 874 (Ala.Crim.App.1997); Sumlin v. State, 615 So.2d 1301, 1302 (Ala. Crim.App.1993). Likewise, the removal of an African-American juror because of a prior criminal conviction is race-neutral. See, e.g., Thomas v. State, 611 So.2d 416, 417 (Ala.Crim.App.1992); Jackson v. State, 549 So.2d 616, 681-19 (Ala.Crim.App.1989). Thus, the prosecutor's removal of juror number 79 was for a race-neutral reason.
Lewis's challenge to the removal of juror number 57 is the most problematic. The prosecutor stated that juror number 57 was struck because he had a prior misdemeanor conviction for writing a bad check.[4] However, the prosecutor did not strike juror number 16 a white female despite the fact that she also had a prior misdemeanor conviction for writing a bad check. Thus, we must consider whether the prosecutor engaged in disparate treatment of these two veniremembers. As previously noted, striking a prospective juror based upon a prior conviction or previous criminal history is a race-neutral reason. However, this Court has made it clear that the failure to strike both white and African-American veniremembers because of prior criminal records constitutes evidence of disparate treatment. See Yancey v. State, 813 So.2d at 7; Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989).
Here, the prosecutor explained that he failed to strike juror number 16 because he was unaware of her previous misdemeanor conviction. Had he known of juror number 16's criminal record, the prosecutor stated, he would have stricken her as well. The Alabama Supreme Court discussed a similar situation in Ex parte Brown, 686 So.2d 409, 420 (Ala.1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). The court noted:
"A prosecutor can strike based on a mistaken belief, see Taylor v. State, 666 So.2d 36, 42 (Ala.Cr.App.1994); therefore, it is logical that a prosecutor may also decide, based on a mistaken belief, not to strike a veniremember. Because the discrepancy in the way these two jurors were treated was adequately explained, we conclude that the strike of Juror 19 was race-neutral."
Accord Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997); cf. McNair v. Campbell, 416 F.3d 1291, 1311 (11th Cir. 2005), cert. denied sub nom., McNair v. Allen, 547 U.S. 1073, 126 S.Ct. 1828, 164 L.Ed.2d 522 (2006) ("Although the prosecutor's *502 reason for striking McAllister was based on a belief that ultimately proved incorrect, this does not establish by clear and convincing evidence that the state court's finding of fact was erroneous.").
The trial court found credible the prosecutor's assertion that he had relied on a jury-information sheet that did not reflect juror number 16's bad-check conviction. (State's Exhibit 3, Supp. C. 31.) In light of the fact that a number of convictions from Houston County have been reversed as a result of Batson violations,[5] the trial court was certainly aware of the potential for abuse and, further, was in the best position to weigh the credibility of the prosecutor's assertion that he was unaware of juror number 16's bad-check conviction. State's Exhibit 3 certainly lends credence to the trial court's finding. Additionally, the State argues, and the record indicates, that the prosecutor also struck prospective juror W.C., a white female, who, like juror number 57, had a bad-check conviction.[6] This also suggests that the prosecutor struck prospective white jurors based on misdemeanor bad-check convictions and that he failed to strike juror number 16 because he was unaware of the full extent of her criminal history.
Because the discrepancy in the way juror number 57 and juror number 16 were treated was adequately explained, we conclude that the strike of juror number 57 did not evidence disparate treatment. Based on the foregoing, we conclude that the trial court's ruling was not clearly erroneous. Accordingly, no basis for reversal exists as to this claim.
II.
In Part X of his brief, Lewis argues that the State improperly injected victim-impact evidence and evidence of the victim's good character during the guilt phase of his trial. Because Lewis did not raise this issue during trial, we review this claim for plain error.
During his opening statement to the jury, the prosecutor commented on what he expected the evidence to show regarding the victim, Tim Kaye:
"Tim was raised here in Houston County. The evidence would be that Tim was thirty-eight years old. He had been married. He had children. He had a job as a paint contractor. In fact, that Friday night before this Saturday morning, after midnight, he had worked. He had taken a check, cashed it on Saturday morning and he was to get up with his father to go to Mississippi to get some shrimp or something for his daughter's birthday party that was to take place on Sunday. He had been down Friday night to watch his daughter play softball in Cottonwood."
(R. 161.) Additionally, during his opening statement, the prosecutor noted that he expected the victim's mother, Sarah Kaye, to testify that her son had purchased a bracelet for his daughter and that a birthday card he had picked out for her was found at his residence.
Contrary to Lewis's claim, the prosecutor's remarks did not constitute victim-impact evidence. As the United States Supreme Court held in Payne v. Tennessee, 501 U.S. 808, 821, 111 S.Ct. *503 2597, 115 L.Ed.2d 720 (1991), victim-impact statements typically "describe the effect of the crime on the victim and his family." Accord Turner v. State, 924 So.2d 737, 770 (Ala.Crim.App.2002). Nor were the aforementioned remarks improper references to the victim's good character. Instead, these remarks were simply an explanation by the prosecutor of what he expected the evidence to show. Indeed, the State's first two witnesses were Sarah Kaye, the victim's mother, and Toni Kaye, the victim's sister; these two witnesses testified to the instances referenced by the prosecutor in his opening statement concerning what he expected the evidence to show. Whatever is in evidence is subject to comment by the prosecutor, and he may argue every legitimate inference therefrom. Clark v. State, 896 So.2d 584, 631-32 (Ala.Crim.App.2003).
Accordingly, the prosecutor's comments during his opening statement consisted of facts he expected to show about the victim. Although "`[t]he comments did personalize the victim, . . . they were brief enough that we cannot conclude that they injected prejudicial or irrelevant material into the sentencing decision.'" Kuenzel v. State, 577 So.2d 474, 499 (Ala.Crim.App.1990) (quoting Brooks v. Kemp, 762 F.2d 1383, 1409 (11th Cir.1985)).
Alternatively, Lewis argues that the State "put on evidence to support its good character/victim impact argument" during the testimony of Sarah Kaye and Toni Kaye. We note that the complained-of testimony offered by these witnesses was offered for identification purposes. They testified regarding their relationship to the victim, Tim Kaye; Kaye's job as a painter; the clothing Kaye was wearing when last seen; Kaye's wristwatch; Kaye's plans for Friday, April 25, 1997 the last day Mrs. Kaye saw her son alive and his plans for the upcoming weekend. This testimony established a predicate for Mrs. Kaye and Toni Kaye's identification of various State's exhibits pertaining to the murder of Tim Kaye. As such, the facts to which they testified were properly developed during the course of Lewis's trial and constituted nothing more than comments on the evidence. Thus, any comments made by the prosecutor during his opening statement regarding what he expected these witnesses to testify about did not constitute improper evidence regarding the victim's good character, nor did these witnesses' testimony constitute improper evidence regarding the victim's good character. Because Lewis has failed to establish that the comments made by the prosecutor injected prejudicial or irrelevant material into the jury's verdict, no basis for reversal exists.
III.
Lewis also argues that "the State improperly examined Hargedon." Specifically, Lewis contends that the State should not have asked Hargedon what Free and Lewis "were going to do with Kaye," because the question called for "speculation, state of mind, and violated Rule 704[, Ala. R.Evid.,] in that it violates the ultimate issue rule." (Lewis's brief, p. 35.) Because this claim was not raised below, we review it for plain error.
"The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). Rule 704, Ala.R.Evid., provides that "testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact." "An ultimate issue *504 has been defined as the last question that must be determined by the jury. See Black's Law Dictionary [1522 (6th ed. 1990)]." Tims v. State, 711 So.2d 1118, 1125 (Ala.Crim.App.1997).
As the State correctly points out, the ultimate issue in this case was whether Lewis participated in the intentional killing of Tim Kaye, and, if so, whether the murder occurred during the course of a first-degree kidnapping. As set out in our recitation of facts, Hargedon testified at length regarding the circumstances surrounding Lewis and Free's beating of the victim, Tim Kaye. During her testimony, Hargedon told how Lewis came out of his mobile home carrying a shotgun. Hargedon recounted her fear and the need to "get out of there ... [b]ecause they were fighting and there were guns." (R. 239.) Hargedon was asked: "What were [Lewis and Free] going to do to Tim Kaye?" to which she responded: "I guess finish it. I don't know." (R. 239.)
We do not consider Hargedon's testimony to constitute a comment on the ultimate issue of fact. Hargedon's testimony was nothing more than a lay opinion based on her personal knowledge and observations of what happened that night. Rule 701, Ala.R.Evid., provides:
"If the witness is not testifying as an expert, the witness's testimony in the form of an opinion or inference is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."
Hargedon's opinion was rationally based on her perception of the events that occurred that night and her knowledge of the circumstances surrounding Kaye's murder. As such, it was helpful to a clear understanding of her testimony. See, e.g., Gavin v. State, 891 So.2d 907, 969-70 (Ala. Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004). We do not consider Hargedon's testimony an opinion as to Lewis's guilt or as to how his case should be resolved. Moreover, we find it unlikely that any of the jurors would have substituted Hargedon's opinion for their own judgment. Thus, Hargedon's testimony did not violate the ultimate issue rule.
Even if we were to conclude that the prosecutor erred in eliciting this testimony from Hargedon, we would not find reversible error, given that her testimony was merely cumulative of other evidence presented during Lewis's trial. See Simmons v. State, 797 So.2d 1134, 1158 (Ala. Crim.App.1999), cert. denied, 797 So.2d 1186 (Ala.2001). Thus, admission of this testimony would have been harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly, there was no plain error in the admission of Hargedon's testimony.
IV.
In Part VI of his brief, Lewis argues that the trial court erred when, over his objection, it allowed the State to examine State's witness Rodney Ray Alford, using a statement Alford had given to a Houston County Sheriff's Department investigator. Specifically, Lewis contends that the State should not have been allowed to question Alford concerning his earlier statement until it had demonstrated that Alford needed to have his memory refreshed.
Our examination of the record indicates that during the State's examination of Alford, he testified about his encounter with Free and Lewis on the morning of Saturday, April 26. Alford testified that sometime between 6:00 and 7:00 a.m. the pair drove up to his son's house near Darlington, Florida, in a maroon or dark red pick-up truck. Alford observed the men wash *505 blood out of the back of the truck and off their pants and shoes. At some point during Alford's direct examination, the prosecutor asked him if he recalled making a statement to investigators with the Houston County Sheriff's Department. Alford was shown the statement and asked if he recalled telling the investigators about a conversation between Lewis and Free about how much fun they had had, or something to that effect. Alford responded that he recalled one of the men saying that "they had more fun that night ... than they ever had." (R. 384.) When asked if he recalled telling the Houston County investigators that Lewis made the statement, Alford stated that he recalled one of them making the statement, but he could not swear as to which one had actually made it. When questioned further, Alford stated that he might have attributed the statement to Lewis, but that it had been a while since he had given the statement to Houston County authorities.
Alabama law provides that
"[i]n order for a writing to be usable for refreshing a witness' memory under the doctrine of present recollection revived, it must appear that the witness possesses a personal knowledge of the matter recorded in the writing. It is left within the considerable discretion of the trial judge to decide whether the witness does indeed possess a present recollection that can be refreshed."
1 Charles W. Gamble, McElroy's Alabama Evidence § 116.02(1) (5th ed. 1996) (footnotes omitted).
Here, Alford showed by his testimony that he had personal knowledge of the events recorded in the statement to Houston County authorities. Moreover, although Lewis contends that it was improper for the prosecutor to question Alford about the statement without Alford first showing that he needed to have his memory refreshed, this contention is not supported by Alabama law. "A witness may refer to a writing for the purpose of refreshing recollection without first, as a condition precedent, having shown that it is necessary for the witness' recollection to be refreshed." McElroy's Alabama Evidence, supra at § 116.02(6) (footnotes omitted). See also Ex parte Scott, 728 So.2d 172, 185 (Ala.1998). Accordingly, the trial court did not err in allowing the prosecutor to show Alford his earlier statement in an effort to refresh his memory.
Moreover, despite the prosecutor's attempt to refresh Alford's recollection with his previous statement, Alford was still unable to state which one of the men Lewis or Free had made the statement. Thus, because Alford was unable to attribute the remark to Lewis, no prejudice resulted to Lewis. Even assuming that allowing the prosecutor to read from Alford's statement was error, such error was harmless, because the testimony elicited by the prosecutor following his reference to Alford's statement was impeached by Lewis's defense counsel with his presentation of a conflicting statement given by Alford during another hearing. Because any possible prejudice was averted, any potential error was rendered harmless beyond a reasonable doubt. See, e.g., Ex parte Baker, 906 So.2d 277, 284 (Ala.2004) ("the harmless error rule excuses the error of admitting inadmissible evidence only because the evidence was so innocuous or cumulative that it could not have contributed substantially to the adverse verdict"). No basis for reversal exists as to this claim.
V.
In Part I of his brief, Lewis argues that the trial court erred by allowing his codefendant, James Anthony Free, to testify that he had been convicted of the *506 capital murder of Tim Kaye. Further, Lewis argues, this error was compounded by the trial court's failure to give a limiting instruction to the jury. Because Lewis did not object when this testimony was elicited from Lewis and because he failed to request a curative instruction after the evidence was admitted, we review this claim pursuant to the plain-error doctrine. Rule 45A, Ala.R.App.P.
Generally, evidence and argument regarding the outcome of a codefendant's case are improper in the trial of a fellow accused. In Tomlin v. State, 591 So.2d 550, 554 (Ala.Crim.App.1991), this Court stated:
"In 1899, the United States Supreme Court held that evidence of a codefendant's conviction was not admissible in the trial of his fellow accused. See Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). This is still the prevailing view. See Annot., 48 A.L.R.2d 1016, and cases cited therein.
"`Where two or more persons are jointly indicted for the same criminal offense which is in its nature several, or are separately indicted for such offense or for separate offenses growing out of the same circumstances, and are tried separately, the fact that one defendant has pleaded guilty or has been convicted is, as a general rule, inadmissible as against the other, since competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense, and since each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence.'
"48 A.L.R.2d at 1017."
However, we went on to note that "[t]here are exceptions" to this general rule, the first being "`[w]here the common-law distinction between a principal and an abettor has not been abolished, the conviction or plea of guilty of a principal is admissible against one being tried separately as an abettor, since the principal's guilt is a prerequisite to prove the guilt of the accused.'" 591 So.2d at 554 (quoting 48 A.L.R.2d at 1017, n. 1). Additionally, "evidence of a codefendant's conviction may be admissible for purposes of impeachment when the codefendant testifies at trial. However, the court should give the jury a limiting or cautionary instruction concerning the use of the conviction." 591 So.2d at 554 (citing United States v. Austin, 786 F.2d 986 (10th Cir.1986), and Stokes v. State, 462 So.2d 964 (Ala.Crim.App.1984)). In Tomlin, this Court held that because evidence that Tomlin's codefendant had already been convicted and sentenced to death came in through the testimony of a law-enforcement official, the codefendant did not testify, and the trial court's limiting instructions were inadequate, neither of the recognized exceptions applied. Accordingly, reversal of Tomlin's conviction and death sentence was mandated. 591 So.2d at 554-56.
Under current Alabama law, there is no distinction between principals and accessories. See, e.g., Faircloth v. State, 471 So.2d 485, 489 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985) ("Alabama Code § 13A-2-23 (1975) continues the long recognized abolition of the distinction between principals and accessories in Alabama."). Therefore, the first exception recognized in Tomlin is inapplicable. However, this Court has upheld convictions where evidence of a codefendant's conviction was admitted for purposes of impeachment when the codefendant testified at trial. Indeed, in Saffold v. State, 494 So.2d 164, 170-71 (Ala.Crim.App.1986), this Court recognized that the admission of a codefendant's *507 conviction is not error if its use is limited to a proper evidentiary purpose, such as to impeach trial testimony or to reflect on the witness's credibility. In Saffold, the codefendant testified. We held that reversal was not warranted because evidence of the codefendant's guilty-plea conviction could be used to impeach his trial testimony or to reflect on his credibility. 494 So.2d at 170.
After reviewing the record in this case, we conclude that the facts in this case more closely resemble those in Saffold than those in Tomlin. Here, the State called Lewis's codefendant, James Anthony Free, to testify against Lewis. Based on defense counsel's opening statement, the State was well aware that Lewis would be attacking Free's credibility. Accordingly, at the outset of Free's testimony, the prosecutor asked Free whether he had been convicted of capital murder in connection with Kaye's death, and whether he had been offered "any deals" in exchange for his testimony. Free acknowledged his capital-murder conviction and stated that he had been promised nothing in exchange for his testimony. The prosecutor did not dwell on these details. Rather, he simply got these facts out of the way and proceeded to establish the facts surrounding Kaye's kidnapping and murder.
During his cross-examination of Free, defense counsel used the fact that Free had already been convicted of capital murder in conjunction with Kaye's death to vigorously attack Free's credibility. Defense counsel questioned Free at length concerning his participation in the vicious beating and subsequent shooting of Kaye, in an attempt to establish Free's greater culpability in the crime. Likewise, defense counsel questioned Free at length concerning any hopes he had for a reduced sentence, in an attempt to persuade the jury that Free's testimony was "shaded" to say what the prosecutor wanted to hear. Given these circumstances, we do not find that the prosecutor's brief questions to Free concerning his conviction constitute error.[7]
Further, we do not consider the trial court's failure to give a special limiting instruction regarding Free's testimony error, given that defense counsel neither objected to Free's testimony concerning his conviction nor requested a limiting instruction.
"`A cautionary instruction is generally sufficient to dispel any prejudice that arises from informing the jury of a codefendant's plea of guilty. United States v. White, 589 F.2d 1283, 1290, n. 14 (5th Cir.1979). However, while a curative statement may be the preferred practice and is an important element in insuring the jury's impartiality, it is but one of the many factors to consider on review. The prevailing inquiry is one of fairness and to this end, jury instructions are important only insofar as they protect the substantive rights of the accused. United States v. King, 505 F.2d at 607.
"`....
"`Ordinarily, when the jury learns of a codefendant's guilt for the same or similar offenses, and the defense counsel does not request that a curative instruction be given, the failure of the trial judge to give one will not require reversal. United States v. Beasley, 519 F.2d *508 [233,] 240 [(5th Cir.1975)]. Only in those rare situation in which other "aggravating circumstances" have exacerbated the prejudice will the failure to give cautionary instructions result in plain and reversible error. See, e.g., United States v. Harrell, 436 F.2d 606, 617 (5th Cir.1969 [1970]).'"
Saffold, 494 So.2d at 170-71 (quoting United States v. DeLucca, 630 F.2d 294, 298 (5th Cir.1980)).
Although the trial court did not give a specific limiting instruction regarding the jury's consideration of Free's conviction, it was nevertheless fully apprised as to the proper evaluation of witness testimony, particularly the testimony of "interested witnesses" such as James Anthony Free. Jurors are presumed to follow the trial court's instructions. See Irvin v. State, 940 So.2d 331, 352 (Ala.Crim.App. 2005) (citing Taylor v. State, 666 So.2d 36, 70 (Ala.Crim.App.), on return to remand, 666 So.2d 71 (Ala.Crim.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996)). No basis for reversal exists regarding this claim.
VI.
Lewis, who categorizes State's witnesses James Anthony Free and Eddie Free as "snitches," argues that the Frees "had constitutionally unreliable testimony." (Lewis's brief, p. 40.) Therefore, Lewis argues, the State should not have been allowed to present the testimony of these two witnesses without first showing that "the testimony can withstand a reliability test." This claim was not raised below; therefore, we review it for plain error.
Rule 601, Ala.R.Evid., provides that "[e]very person is competent to be a witness except as otherwise provided in these rules." As the Advisory Committee's Notes to Rule 601 recognize:
"[Rule 601] acknowledges the prevailing sentiment that very few persons are incapable of giving testimony useful to the trier of fact and that historic grounds of incompetency mental incapacity, conviction, etc. should go to the credibility of the witness and the weight the trier of fact gives to the witness's testimony."
In effect, Lewis asks that this Court ignore the general rule of competency set out in Rule 601. Instead, he contends, the trial court should make an initial credibility decision as to a witness's competency to testify, thus depriving the jury of its traditional role in determining witness credibility. Lewis cites no Alabama law, nor can we find any, requiring that, absent some special circumstance, a witness must pass a reliability test before being allowed to testify. Indeed, the cases cited by Lewis all involve special circumstances requiring the trial court to determine the reliability of certain witnesses or evidence before the witness or evidence is presented to the jury.[8]
*509 We see no reason to limit the liberal application of Rule 601. Nor do we see any reason to limit the jury's traditional role in determining witness credibility. See, e.g., Cumbo v. State, 368 So.2d 871, 875-76 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979) (recognizing that the jury has the responsibility of assessing the credibility of each witness and weighing all the evidence, whether direct or circumstantial, as they viewed it). Whether the Frees were "snitches" who testified in exchange "for a deal or in hope of receiving a deal" was a question for the jury to determine, given that both men denied that they had been offered any deals or promises in exchange for their testimony against Lewis. The jury was fully apprised of each man's criminal history, including James's Anthony Free's role as Lewis's accomplice. Moreover, the trial court instructed the jury on the proper evaluation of witness testimony, particularly the testimony of "interested witnesses," specifically, James Anthony Free and Eddie Free. Jurors are presumed to follow the trial court's instructions. See Irvin v. State, 940 So.2d at 352 (citing Taylor v. State, 666 So.2d at 70). Accordingly, we find no error, plain or otherwise, regarding this claim.
VII.
During the cross-examination of Dr. Marie Herrmann, the medical examiner who performed the autopsy on Kaye, Lewis's defense counsel asked Dr. Herrmann whether she had requested any type of blood-alcohol analysis. Dr. Herrmann stated that she did, in fact, request a blood-alcohol analysis. When counsel attempted to have the contents of the toxicology report admitted as a business record, the trial court sustained the prosecutor's hearsay objection.[9]
Lewis now argues that the trial court erred in refusing to allow the toxicology report into evidence. Specifically, Lewis contends that the toxicology report establishing that the victim had a blood-alcohol content of 0.19% was crucial to his defense for three reasons: (1) because it supported a defense theory that the cause of death was the combination of concussion suffered as a result of the blows administered by Lewis's codefendant, Free, and Kaye's intoxication; (2) because it supplied further evidence that the victim and Lewis were "extremely intoxicated," thus negating the capital-murder charge during the guilt phase; and (3) because it "would have added further evidence that [Lewis's] intoxication was an extremely strong mitigator." (Lewis's brief, p. 32.) Lewis argues that this report should have been admitted into evidence pursuant to either the business-record exception or the public-record exception to the hearsay rule Rule 803, Ala.R.Evid.
In Mayo v. City of Rainbow City, 642 So.2d 524 (Ala.Crim.App.1994), the defendant, Mayo, was convicted of cruelty to animals and criminal possession of a noxious substance. On appeal, Mayo argued that the trial court erred in admitting into evidence the copy of a report, sent from a veterinary laboratory to a veterinarian, was not admissible under the business-record exception to the hearsay rule. This Court agreed, stating:
"The admission of the report into evidence was error. Although it might have been authenticated as a business record admissible under Ala.Code 1975, *510 § 12-21-43, it could not have been authenticated by Dr. Baxter's testimony.
"`Testimony by any witness, frequently the custodian of the record, that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of fact to be reasonable, is a sufficient authentication of the record to require its admittance in evidence.'
"C. Gamble, McElroy's Alabama Evidence § 254.01(3) at 679 (4th ed. 1991) (emphasis added).
"The lab report, authored by a third party and sent to Dr. Baxter, was obviously not made in the regular course of Dr. Baxter's business. The report may have been retained, and even relied on, by Dr. Baxter in the regular course of his business, but neither of those occurrences is sufficient to make the report Dr. Baxter's business record. See Ex parte Frith, 526 So.2d 880, 882-84 (Ala. 1987) (letter written by Bryce Hospital psychiatrist and sent to prison psychiatric social worker could not be authenticated by social worker as a business record of the social worker).
"Dr. Baxter was simply not a `person in a position to attest to the authenticity' of the lab report. See Theriot v. Bay Drilling Corp., 783 F.2d 527, 533 (5th Cir.1986) (construing Fed.R.Evid. 803(6)). Because the admission of the lab report was error, the appellant is entitled to a new trial."
642 So.2d at 527.
Citing this Court's decision in Perkins v. State, 897 So.2d 457 (Ala.Crim.App.2004), Lewis argues that the toxicology report was, in fact, admissible. Lewis's reliance on Perkins is misplaced, however, because Perkins is factually distinguishable from the instant case. In Perkins, the State sought to admit an autopsy report prepared by a medical examiner who had since retired from the Department of Forensic Sciences and was unavailable to testify. Despite this, however, the State was able to authenticate the autopsy report through the testimony of two other witnesses then employed by the Department of Forensic Sciences: (1) the retired medical examiner's assistant, who had been present when the autopsy was performed and who testified regarding the actions undertaken by the retired medical examiner; and (2) another medical examiner, who testified that the autopsy report was an established business record kept in the ordinary course of business by the Department of Forensic Sciences. That medical examiner also testified that he had reviewed the autopsy and was in agreement with the findings contained in the report. Under these circumstances, we held that admission of the autopsy report did not violate Perkins's rights under the Confrontation Clause to the Sixth Amendment to the United States Constitution. 897 So.2d at 463-65.
Based on Perkins, the toxicology report might have been able to be authenticated as a business record admissible under Rule 803(6), Ala.R.Evid., had Lewis met the foundation requirements of Rule 803(6). Because he did not, the trial court properly excluded this report from evidence. See Mayo, supra. In any event, we fail to see how exclusion of this report prejudiced Lewis's defense given that Lewis was still able to get Dr. Herrmann to testify that the victim's intoxication might have exacerbated the effect of the blows to his head *511 by Free and Lewis, allowing Lewis to argue this defense theory. However, we fail to see how the victim's intoxication was relevant to prove Lewis's own intoxication, particularly to support Lewis's claim that he lacked the intent to kill the victim or to mitigate against imposition of the death penalty. Accordingly, no basis for reversal exists as to this claim.
VIII.
Lewis argues that there was insufficient evidence upon which to sustain his convictions for the capital offenses of murdering Kaye during the commission of first-degree kidnapping. Lewis maintains that there was no corroborative evidence to support that he kidnapped Kaye or that he had a particularized intent to kill Kaye. (Lewis's brief, pp. 24-29.)
"`"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So.2d 493 (Ala. 1985). `"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App. 1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). `"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App. 1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). `The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
"`The trial court's denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App. 1983)."
Gavin v. State, 891 So.2d 907, 974 (Ala. Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004), cert. denied, 543 U.S. 1123, 125 S.Ct. 1054, 160 L.Ed.2d 1073 (2005) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)). See also Ward v. State, 814 So.2d 899, 908-10 (Ala.Crim. App.2000), cert. denied, 814 So.2d 925 (Ala. 2001).
"Where a defendant's conviction is based solely on circumstantial evidence, `if the circumstances can be reconciled with the theory that someone else may have done the act, then the conviction is due to be reversed.' Ex parte Brown, 499 So.2d 787, 788 (Ala.1986) (emphasis *512 in original). `Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.' White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). `Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.' Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala. 1985). `It is not necessary for a conviction that the defendant be proved guilty to the "exclusion of every possibility of innocence."' Burks v. State, 117 Ala. 148, 23 So. 530 (1898). `The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant.' Howard v. State, 108 Ala. 571, 18 So. 813, 815 (1895)."
White v. State, 546 So.2d 1014, 1017 (Ala. Crim.App.1989). Accord Williams v. State, 795 So.2d 753, 775 (Ala.Crim.App. 1999), aff'd, 795 So.2d 785 (Ala.2001).
The record indicates that the State presented sufficient evidence to prove the elements of the capital offenses of murder committed during first-degree kidnapping. The evidence established that after Lewis, Free, and Hargedon met up with Kaye, the four proceeded to Lewis's mobile home. At some point, Free and Kaye went outside and began to fight. While the two men were fighting, Lewis came outside with a shotgun in his hands and stated that it was time "to finish this." However, Hargedon took the shotgun away from Lewis and took it back inside the mobile home. When Hargedon came back outside, she heard Lewis and Free arguing over who would get to shoot Kaye. Free and Kaye continued to fight until Lewis picked up a rock and hit Kaye in the head with it. Lewis told Free that they should kill Kaye because Kaye's cooperation with law-enforcement officials resulted in a former coworker Jay Causey being indicted for trafficking in marijuana. Lewis then came up behind Kaye and started hitting him, saying: "Let's kill him. He is the one that got J-Bird." Lewis continued to hit Kaye, as Kaye begged Lewis not to hit him, until he lost consciousness. Free allegedly attempted to stop Lewis, but Lewis just laughed as he continued to hit and kick Kaye.
Lewis then dragged Kaye over to the back of Kaye's pick-up truck. Free helped Lewis put Kaye into the bed of the truck. Lewis told Free that they "were going to take a ride," and the pair took Kaye's truck with Kaye's body in the back and drove to Florida. As he held a gun on Free, Lewis told Free which roads to take, eventually directing Free to stop on a bridge over the Choctawhatchee River. Lewis got out of the truck, pulled Kaye's body out of the truck bed, and let him fall to the ground. Lewis ordered Free to help him pick up Kaye's body and drop him over the side of the bridge and into the river below. Later that day, Lewis and Free were seen in Kaye's pick-up truck. Both men had blood on their pants and shoes.
There was ample evidence from which the jury could have concluded that Lewis committed murder during the course of kidnapping in the first degree. Indeed, this Court rejected an argument similar to Lewis's claim that the State failed to prove that a kidnapping occurred in Duncan v. *513 State, 827 So.2d 838 (Ala.Crim.App.1999), aff'd, 827 So.2d 861 (Ala.2001), cert. denied, 537 U.S. 860, 123 S.Ct. 237, 154 L.Ed.2d 99 (2002).[10] We held:
"The appellant's argument that, because the victim initially entered the vehicle voluntarily, she was not forcibly confined is without merit. Merely because the victim initially agreed to accompany the individuals does not negate the fact that she was later forcibly confined. The concept of restraint is `concerned with intentional, unlawful and nonconsensual removal or confinement.' § 13A-6-40, Commentary. This Court has previously held that a victim may voluntarily enter the place where she is later restrained against her will, and the crime still constitutes a kidnapping. T.R.D. v. State, 673 So.2d 838 (Ala.Cr. App.1995); Mims v. State, 591 So.2d 120 (Ala.Cr.App.1991); Jenkins v. State, 627 So.2d 1034 (Ala.Cr.App.1992); and Musgrove v. State, 519 So.2d 565 (Ala.Cr. App.1986)."
Here, the evidence supports the jury's verdict. Accordingly, there is no merit to Lewis's claim that the State failed to establish sufficient proof that a kidnapping occurred or that Lewis lacked a particularized intent to kill Kaye.
Lewis's claim that Free's version of events was not sufficiently corroborated by other evidence connecting him with Kaye's kidnapping and murder is likewise without merit.
Section 12-21-222, Ala.Code 1975, provides:
"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."
In Johnson v. State, 820 So.2d 842 (Ala. Crim.App.2000), this Court discussed the level of proof sufficient for corroboration:
"When the testimony of the accomplice is subtracted, the remaining testimony does not have to be sufficient by itself to convict the accused. As we stated in Ingram v. State, 779 So.2d 1225, 1259 (Ala.Cr.App.1999):
"`A felony conviction cannot be had on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Kuenzel v. State, [577 So.2d 474 (Ala.Cr.App.1990)]; § 12-21-222. The corroboration evidence need not be strong, nor sufficient of itself to support a conviction, the reasoning being that it legitimately tend to connect the accused with the offense; it need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Kuenzel v. State; Andrews v. State, 370 So.2d 320 (Ala.Crim.App.1979).'"
820 So.2d at 869. See also Ziegler v. State, 886 So.2d 127, 143 (Ala.Crim.App.2003).
Further, in Ex parte Scott, 728 So.2d 172, 178 (Ala.1998), the Alabama Supreme Court recognized that the defendant's proximity to the crime scene is a relevant consideration in determining whether an accomplice's testimony was sufficiently corroborated.
*514 After carefully reviewing the record, we conclude that, even after subtracting Free's accomplice testimony, there was ample evidence tending to connect Lewis with Kaye's kidnapping and murder. Hargedon observed Lewis hitting and kicking Kaye; she also heard Lewis and Free arguing over who would kill Kaye. Additionally, Lewis's cousin, Kandy Harger, who lived nearby, heard sounds of a fight at Lewis's residence during the early morning hours of April 26. Finally, Rodney Ray Alford, a former employee of Lewis's who lived near the Choctawhatchee River in Florida, testified that Lewis and Free showed up at his house between 6:00 and 7:00 a.m. on April 26 in a maroon pick-up truck and that Lewis had blood on his pants and shoes. Accordingly, there is no merit to Lewis's claim that the evidence was insufficient to support his conviction. Free's accomplice testimony was amply corroborated. Moreover, the jury was fully informed of Free's status as an accomplice. The trial court instructed the jury that it should consider the testimony of any interested witness, such as Free, with particular caution. See Ziegler v. State, 886 So.2d at 144. Based on the foregoing, no basis for reversal exists regarding this claim.
IX.
Lewis argues that the State was guilty of prosecutorial misconduct during closing argument of the guilt phase of his trial. Quoting a portion of the prosecutor's remarks in the rebuttal portion of his closing argument, Lewis claims, generally, that the prosecutor's closing argument was "so infected with improper and prejudicial comments that [Lewis] was denied his rights to due process and a fair trial." (Lewis's brief, p. 48.) Because no objections were raised to the allegedly improper remarks, we review Lewis's claim under the plain-error standard.
In reviewing claims of prosecutorial misconduct arising out of improper argument, this Court has followed the following principles:
"A reviewing court must evaluate allegedly improper comments made by the prosecutor in the context of the entire proceeding in which the comments were made. Duren v. State, 590 So.2d 360 (Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992). `"In judging a prosecutor's closing argument, the standard is whether the argument so infected the trial with unfairness as to make the resulting conviction a denial of due process."' Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).
"`In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So.2d 252, 256 (Ala.Cr.App.1987); Wysinger v. State, 448 So.2d 435, 438 (Ala.Cr.App.1983); Carpenter v. State, 404 So.2d 89, 97 (Ala.Cr.App.1980), cert. denied, 404 So.2d 100 (Ala.1981). Moreover, this Court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Orr v. State, 462 So.2d 1013, 1016 (Ala.Cr.App. 1984); Sanders v. State, 426 So.2d 497, 509 (Ala.Cr.App.1982).'
*515 "Bankhead v. State, 585 So.2d 97, 106 (Ala.Cr.App.1989), aff'd in relevant part, remanded on other grounds, 585 So.2d 112, 127 (Ala.1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Cr.App. 1992)."
Lockhart v. State, 715 So.2d 895, 902-03 (Ala.Crim.App.1997) (quoted with approval in McWhorter v. State, 781 So.2d 257, 317-18 (Ala.Crim.App.1999), aff'd, 781 So.2d 330 (Ala.2000), cert. denied, 532 U.S. 976, 121 S.Ct. 1612, 149 L.Ed.2d 476 (2001)).
We have carefully reviewed the prosecutor's entire closing argument during the guilt phase of Lewis's trial, paying particular attention to the context of the prosecutor's remarks quoted in Lewis's brief. Based on that review, it is clear that the prosecutor's remarks were made in the heat of debate and in reply to various remarks made during defense counsel's closing argument. Therefore, no basis for reversal exists.
X.
Lewis argues that the trial court made a number of errors in its jury instructions during the guilt phase of his trial.
When reviewing a trial court's jury instructions, this Court keeps in mind the following principles:
"A trial court has broad discretion when formulating its jury instructions. See Williams v. State, 611 So.2d 1119, 1123 (Ala.Cr.App.1992). When reviewing a trial court's instructions, `"the court's charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together."' Self v. State, 620 So.2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App. 1987)); see also Beard v. State, 612 So.2d 1335 (Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130 (Ala.Cr.App. 1992)."
Williams v. State, 795 So.2d 753, 780 (Ala. Crim.App.1999), aff'd, 795 So.2d 785 (Ala. 2001). "The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh against his claim of prejudice." Ex parte Boyd, 715 So.2d 852, 855 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998).
A.
In Part III of his brief, Lewis argues that the trial court erred in "failing to instruct the jury on accomplice testimony," specifically, the requirement that accomplice testimony be corroborated.
This Court has long applied the harmless-error rule in capital cases when the circuit court failed to instruct the jury on the requirement that an accomplice's testimony be corroborated. See, e.g., Hyde v. State, 778 So.2d at 221; Arthur v. State, 711 So.2d 1031, 1058-59 (Ala.Crim.App. 1996), aff'd, 711 So.2d 1097 (Ala.1997); Gurley v. State, 639 So.2d 557 (Ala.Crim. App.1993); Frazier v. State, 562 So.2d 543, 558 (Ala.Crim.App.), rev'd on other grounds, 562 So.2d 560 (Ala.1989).
Even though the court did not instruct the jury that Free was an accomplice, his status as a codefendant was made abundantly clear through his testimony. Moreover, the trial court's instructions cautioned the jury to look for and to consider possible bias on the part of a witness. Finally, although Free testified against his codefendant, Lewis was not convicted based solely upon Free's testimony. As previously noted, the State presented numerous witnesses and substantial physical evidence connecting Lewis with Kaye's murder. This other evidence corroborated Free's testimony and was sufficient to support *516 Lewis's conviction. Accordingly, any error in the court's failure to charge the jury on the necessity of accomplice corroboration was harmless.
B.
In Part IV of his brief, Lewis challenges the correctness of the trial court's instruction on complicity. Specifically, he contends that the court's complicity charge was erroneous because it failed to include specific language that "the jury had to find that [Lewis] was an accomplice in the intentional killing and kidnapping of Kaye as opposed to being an accomplice after the fact or an accomplice to a lesser-included offense to the capital-murder charge." (Lewis's brief, p. 31.) Because Lewis did not object to the court's instruction on complicity, we review this claim for plain error.
When instructing the jury on complicity, the court stated:
"Now, the State of Alabama also attempted or undertook to prove the guilt of this defendant here, Michael Jerome Lewis. And they the law says that when they undertake to show that there was a combination of parties, two or more parties, more than one party involved in the transaction or engaged in the crime that was committed, if, in fact, you believe that there was a crime committed, that the burden is upon the State to prove that there was some conspiracy that acted between those persons on trial, and where two or more persons enter into a common enterprise or adventure, whether by prearrangement or entered into on an emergency, and that enterprise contemplates the commission of an offense, each is guilty of the offense committed, whether he did any overt act or not.
"This rests upon the principle that one who is present, encouraging, aiding, abetting or assisting, or who is ready to aid, abet, or assist the actual perpetrator in the commission of the offense, is a guilty participant in the eyes of the law and is equally as guilty as the one who actually does the act.
"One who is present, encouraging or ready to aid another under such circumstances must be presumed to be cognizant of that other person's intention to the extent that I have expressed to you.
Aiding or abetting, under our law, comprehends all assistance rendered by act or words or encouragement or support or presence, actively or constructively, to render assistance should it become necessary. Of course, that is a question of law which addresses itself to you for a decision in this case."
(R. 789-91.) At the conclusion of the trial court's instructions, the court also gave Lewis's requested jury instructions nos. 37-43 regarding accomplice liability and/or complicity. (C. 195-201; R. 814-16.)
We find no merit to Lewis's claim. When viewed in its entirety and in its proper context, the trial court's complicity charge contains no error. Moreover, given that seven of the complicity instructions were proposed by and given at Lewis's request, Lewis cannot now seek reversal based on his own actions. See, e.g., Clark v. State, 896 So.2d 584, 640 (Ala.Crim.App.2003); Lewis v. State, 889 So.2d 623, 651 (Ala.Crim.App.2003); McNabb v. State, 887 So.2d 929, 989 (Ala. Crim.App.2001) (all recognizing the application of the invited-error rule in capital cases). Absent plain error, an invited error is waived. See Ex parte Bankhead, 585 So.2d 112, 126 (Ala.1991).
Likewise, Lewis's reliance on our decision in Russaw v. State, 572 So.2d 1288 (Ala.Crim.App.1990), is misplaced. In Russaw, the court failed to instruct the *517 jury "that in order to find the defendant guilty of the capital offense charged in the indictment, the jury had to find that the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the robbery." 572 So.2d at 1292. As a result of the court's failure to do so, this Court reversed Russaw's conviction, stating that the trial court's instructions were "highly confusing because of the failure to clearly distinguish the intent element in the crimes of capital murder, felony-murder, and murder in connection with the doctrine of accomplice liability." 572 So.2d at 1293.
Here, no such error occurred. The jury was extensively and repeatedly instructed on the elements of capital murder, murder, felony-murder, manslaughter, and first-degree kidnapping (R. 768-75, 793-96, 805-814), as well as the legal principles regarding accomplice liability (R. 789-91, 814-16), and accessory after the fact (R. 814-16). No error, plain or otherwise, occurred in connection with the aforementioned jury instructions.
C.
In Part XII of his brief, Lewis argues that the trial court "erred in giving a substantial doubt charge," specifically that it erred when it instructed the jury that it had to have a substantial doubt before it could acquit him. (Lewis's brief, p. 50.) Lewis concedes that Alabama courts have held that such an instruction, by itself, does not rise to the level of error in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990); however, he appears to argue that this instruction, when considered in conjunction with the claims raised in Part III (failing to instruct on accomplice testimony during guilt phase) and Part XVI (failing to instruct on residual doubt during penalty phase) of his brief is sufficient to warrant reversal of his conviction. We interpret Lewis's argument as a claim that the trial court's instruction on reasonable doubt was flawed in that it allegedly lowered the State's burden of proof beyond a reasonable doubt and, thus violated the holding in Cage v. Louisiana. Because Lewis did not object below, this claim is reviewed for plain error.
Instructing the jury on reasonable doubt, the trial court stated:
"Now, ladies and gentlemen, as I have told you repeatedly, the defendant the burden of proving this defendant is guilty as charged in this indictment rests upon the State of Alabama. Before a conviction can be had in this case of any of these offenses that I have enumerated for you and there are five offenses that I have enumerated for you before a conviction could be had for any of those offenses, the State must satisfy the jury of the defendant's guilt beyond a reasonable doubt.
"Unless the State so satisfies you of the defendant's guilt beyond a reasonable doubt, then, of course, he would be entitled to an acquittal at your hands.
"For a verdict of guilty to be returned in this case, the entire jury must believe, from the evidence, beyond a reasonable doubt and to a moral certainty, that this defendant is guilty as charged in the indictment, either the charge in the indictment or one of the lesser included offenses that I have enumerated for you.
"You must be satisfied of that to the exclusion of every probability of his innocence and every reasonable doubt of his guilt. If the prosecution has failed to furnish that measure of proof and so impress upon the minds of the jury of the defendant's guilt, then, of course, this defendant should not be found guilty.
*518 "Now, ladies and gentlemen, I have told you repeatedly, and these lawyers have told you repeatedly, that the State has the burden of proving the defendant's guilt beyond a reasonable doubt. The phrase reasonable doubt is generally said to be self-explanatory. Efforts to define it do not always clarify the term. But it may be some help to you to say that it's a doubt which would justify a doubt which would justify an acquittal must be an actual and substantial doubt, not a mere possible doubt.
"A reasonable doubt is not a mere guess or surmise. And it is not a forced or capricious doubt.
"If after considering all the evidence in this case you have an abiding conviction of the truth of the charge, then, of course, you are convinced beyond a reasonable doubt and it would be your duty to convict this defendant.
"The reasonable doubt which [would] entitle an accused to an acquittal is not a mere fanciful, vague, conjectural or speculative doubt, but it's a reasonable, substantial doubt arising from the evidence, or the lack of evidence, and remaining after a careful consideration of the testimony. It must be a doubt such as reasonable, fair-minded men and women would entertain under all the circumstances.
"Now, you will observe that the State is not required to convince you of the defendant's guilt beyond all doubt and to the point that you could not possibly be mistaken. But simply beyond a reasonable doubt and to a moral certainty.
"Moral certainty is that degree of assurance which induces a man of sound mind to act without doubt upon the conclusions to which it leads. It's a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it."
(R. 785-88.)
In addressing similar claims, this Court has held:
"`The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In Cage v. Louisiana, the United States Supreme Court found that a jury charge that defined "reasonable doubt" by using the phrases "grave uncertainty," "actual substantial doubt," and "moral certainty" could have led a reasonable juror to interpret the instructions to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. Subsequently, the Court "made it clear that the proper inquiry is not whether the instruction `could have' been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it." Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (quoting Estelle v. McGuire, 502 U.S. 62, 72-73, and n. 4, 112 S.Ct. 475, 482 and n. 4, 116 L.Ed.2d 385 (1991), emphasis in original). Thus, the constitutional question presented here is whether there is a reasonable likelihood that the jury understood the instructions to allow the conviction based on proof insufficient to meet the Winship reasonable doubt standard. Victor v. Nebraska; Ex parte Kirby, 643 So.2d 587 (Ala.), cert. denied, [513] U.S. [1023], 115 S.Ct. 591, 130 L.Ed.2d 504 (1994); Cox v. State, 660 So.2d 233 (Ala.Cr.App.1994).
"`In reviewing the reasonable doubt instruction, we do so in the context of *519 the charge as a whole. Victor v. Nebraska; Baker v. United States, 412 F.2d 1069 (5th Cir.1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); Williams v. State, 538 So.2d 1250 (Ala.Cr.App.1988). So long as the definition of "reasonable doubt" in the charge correctly conveys the concept of reasonable doubt, the charge will not be considered so prejudicial as to mandate reversal. Victor v. Nebraska; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).'"
Lee v. State, 898 So.2d 790, 841-42 (Ala. Crim.App.2001), cert. denied, 898 So.2d 874 (Ala.2004), cert. denied, 543 U.S. 924, 125 S.Ct. 309, 160 L.Ed.2d 222 (2004) (quoting Knotts v. State, 686 So.2d 431, 459 (Ala.Crim.App.), opinion after remand, 686 So.2d 484 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996)). "`Use of some but not all of the terminology found offensive in Cage does not automatically constitute reversible error.'" Taylor v. State, 666 So.2d 36, 56 (Ala.Crim.App.1994), aff'd, 666 So.2d 73 (Ala.1995) (quoting Dobyne v. State, 672 So.2d 1319, 1343 (Ala.Crim.App. 1994), aff'd, 672 So.2d 1354 (Ala.1995)).
We have reviewed the trial court's charge on reasonable doubt in the "context of the entire oral charge." The jury could not have interpreted the trial court's instruction to allow a finding of guilt based upon a degree of proof below that mandated by the United States Constitution. The instruction clearly conveyed the concept of reasonable doubt and did not lessen the State's burden of proof. Although we do not condone the trial court's use of the phrase "substantial doubt," the court's mere use of this phrase in its instruction does not rise to the level of the instruction condemned in Cage. Indeed, the court's instruction on reasonable doubt was similar to one we upheld in Turner v. State, 924 So.2d 737, 775 (Ala.Crim.App.2002). Accordingly, we find no error, plain or otherwise, in the trial court's instruction on reasonable doubt.
XI.
In part XI of his brief, Lewis argues that "the trial court's redundant and randomly given jury instructions confused the jury." (Lewis's brief, p. 44.) The gist of Lewis's complaint appears to be the length and detail of the trial court's instructions on the offenses before the jury for its consideration in Lewis's case. Lewis then complains about differences between the court's instructions and the parties' requested jury instructions given at the conclusion of the court's oral charge. Again, because no objection was made at trial, this claim is reviewed for plain error.
Initially, we note that much of the redundancy Lewis complains of results from the trial court's giving the jury instructions Lewis himself requested. (R. 805-16.) As we have previously stated, the invited-error rule applies in capital and noncapital cases alike. See, e.g., Clark v. State, 896 So.2d at 640. Thus, absent plain error, any error was waived. Additional redundancy occurred when the jury asked to have the trial court redefine capital murder, murder, and felony murder, which it did. (R. 820-34.)
Lewis cites our decision in Deutcsh v. State, 610 So.2d 1212 (Ala.Crim. App.1992), in support of his claim that his rights were prejudiced by the court's instructions. Deutcsh recognizes that the trial court "is responsible for giving the jury the guidance by which it can make appropriate conclusions from the testimony"; "[t]his duty is performed by clearly stating the relevant legal criteria." 610 So.2d at 1218 (Ala.Crim.App.1992) (quoting United States v. Garrett, 574 F.2d 778, 782 (3d Cir.1978)).
*520 "`The difficulty of formulating clarifying instructions so as to avoid incomprehensibility is one which we readily recognize. "Because of the very commonness of [some pertinent] words, the straining for making the clear more clear has the trap of producing complexity and consequent confusion." [United States v. Lawson, 507 F.2d 433, 442 (7th Cir. 1974), cert. denied, 420 U.S. 1004 (1975)]. Nevertheless, where the articulation of the law is essential to the trial's propriety, the task cannot be avoided, as difficult as it may be. It would be, we reluctantly admit, unrealistic to think that every juror understands every concept to which he or she is exposed in the court's charge. The best we can do under our adversary system is to see that the necessarily applicable law is made available to the jury in as understandable as possible form.'"
610 So.2d at 1219 (quoting United States v. Barclay, 560 F.2d 812, 816 (7th Cir.1977)). When allegedly ambiguous jury instructions have purportedly prejudiced a defendant's case, we must determine "`whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way' that violates the constitution." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). See also Ingram v. State, 779 So.2d 1225, 1261 (Ala.Crim.App.1999), aff'd, 779 So.2d 1283 (Ala.2000).
Here, we find no evidence that the court's instructions were erroneous or that the jury misapplied the instructions it was given. Indeed, absent the jury's request that the trial court redefine the offenses of capital murder, murder, and felony, we find no evidence of any confusion on the part of the jury. Taken as a whole, the trial court's instructions correctly conveyed to the jury the appropriate legal principles so that it could correctly perform its duty and determine the question of Lewis's guilt. Accordingly, we find no plain error in the jury instructions given in this case.
XII.
In Part III of his brief, Lewis argues that the trial court erred when it failed to conduct a charge conference before counsel gave their closing arguments, at which the court could review the parties requested jury instructions.[11] Lewis cites this Court's decision in Anderson v. State, 533 So.2d 714 (Ala.Crim.App.1988), for the proposition that a trial court's "failure to do so does not mandate reversal unless the court refuses to follow the rule after its attention has been called to it or prejudice results therefrom." (Lewis's brief, p. 30.) Because Lewis did not object to the court's failure to hold a charge conference or to rule on his requested jury instructions before counsel began closing argument, we review this claim for plain error.
In Anderson, we held that the trial court's failure before closing argument to inform defense counsel of its refusal to instruct the jury on second-degree assault as a lesser-included offense prejudiced the defendant and required reversal in a prosecution for attempted murder that resulted in the defendant's conviction for first-degree assault.
Our decision in Anderson, however, is distinguishable from this case for several reasons. First, the court in Anderson actually held a charge conference before closing argument and advised counsel that it would instruct the jury on the *521 charge of second-degree assault. Second, after advising counsel of its decision and counsel's devoting a significant portion of his allotted time for closing argument on the evidence as it related to second-degree assault, the court reversed its earlier decision, depriving counsel of the opportunity to use his limited argument time to address the evidence as it related to attempted murder and first-degree assault the only two offenses the jury had before it. Based on these specific facts, we held that the defendant's case was prejudiced by the court's action, despite the court's attempt to explain to the jury after deliberations began why counsel had devoted such a significant portion of his argument to a charge that was not before the jury. 533 So.2d at 716-17.
No such prejudice occurred to Lewis as a result of the trial court's failure to hold a charge conference or to advise counsel of its decision before closing argument. Indeed, our review of the record indicates that although the trial court did not hold an actual charge conference or formally rule on counsel's requested jury instructions before closing arguments began, the court informally advised counsel as to its decision regarding which offenses it planned to include in its instructions including the court's decision to instruct the jury on the lesser-included offenses of felony murder, murder, manslaughter, and kidnapping. (R. 700.) Given these circumstances, no basis for reversal exists.
XIII.
In Part XX of his brief, Lewis asks this Court to adopt a new standard of proof to be used in prosecuting capital-murder cases. Lewis contends that the State's burden of proof in a capital-murder case should be "beyond any doubt," rather than the traditional "beyond a reasonable doubt" standard currently in use. Lewis argues: "This standard, which has been proposed by some judges and commentators and by the drafters of the Model Penal Code, reflects the irrevocability of the death penalty." (Lewis's brief, p. 69.) Because this claim is raised for the first time on appeal, we review it under the plain-error standard.
In Alabama, "the standard of proof in criminal cases is beyond a reasonable doubt." Jackson v. State, 640 So.2d 1025, 1032 (Ala.Crim.App.1992). As this Court noted in White v. State, 546 So.2d 1014 (Ala.Crim.App.1989):
"`The state [is] not required to remove by proof the possibility that defendant was innocent, but only to establish his guilt beyond a reasonable doubt.' Rice v. State, 204 Ala. 104, 106, 85 So. 437 (1920); Payne v. State, 424 So.2d 722, 725 (Ala.Cr.App.1982). `[I]f there was a probability of defendant's innocence, the defendant should be found not guilty. A probability of defendant's innocence is the equivalent of a reasonable doubt of guilt, which requires his acquittal.... The law does not require full proof of guilt,another expression for clear or positive proof, beyond any doubt, but only such proof as produces satisfaction beyond reasonable doubt.' Bones v. State, 117 Ala. 138, 23 So. 138, 139 (1898). `A defendant's guilt need not be proved "clearly, fully, and conclusively," and, [instructions] thus framed, ... exact too high a degree of proof.' McClain v. State, 182 Ala. 67, 62 So. 241, 245 (1913). `In criminal prosecutions, circumstantial evidence should be such as to exclude a rational probability of innocence to justify conviction.' Chisolm v. State, 45 Ala. 66, 70 (1871). The evidence need not exclude hypotheses 'rendered exceedingly remote and improbable, and morally, though not absolutely, *522 impossible....' Id. `[T]he true test of the sufficiency of circumstantial evidence to justify a conviction is whether the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt. It is not necessary for the circumstances to be "such as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the accused."' Mitchell v. State, 114 Ala. 1, 22 So. 71, 72 (1897). `The law does not require the exclusion of every hypothesis of innocence, but only every reasonable hypothesis." Walker v. State, 134 Ala. 86, 32 So. 703, 704 (1902). `It is not the law, that the evidence must exclude every other hypothesis than that of defendant's guilt, or than the existence of the facts essential to conviction. The rule goes no further than to the exclusion of other reasonablenot speculative, imaginary, possible, hypotheses.' Little v. State, 89 Ala. 99, 103, 8 So. 82, 83 (1890). `It is not any doubt arising out of the evidence which authorizes a jury to acquit one on trial for [a] crime, but only a reasonable doubt of such guilt generated by the evidence in the cause,not a possible, speculative, or imaginary doubt.' Perry v. State, 87 Ala. 30, 6 So. 425, 427 (1889).
"`Human testimony is rarely so clear and full, as to exclude conjectured, divergent possibilities. Neither does mathematical certainty, or physical impossibility, define the rule. Conviction, resting on human testimony, can never attain the certainty of mathematical demonstration, or repel all possible doubt of its correctness. A rule so exacting would paralyze the punitive arm of the law. "A doubt which requires an acquittal, must be actual and substantial, not mere possibility or speculation. It is not a mere possible doubt, because every thing relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt."' Coleman v. State, 59 Ala. 52, 54 (1877).
"See also Mose v. State, 36 Ala. 211, 231 (1860). `The jury need never find that the defendant cannot be innocent.... There might be a possibility of defendant's innocence, and yet from the whole evidence, no reasonable doubt of his guilt.' Morris v. State, 124 Ala. 44, 27 So. 336, 337 (1900).
"A mere conflict in the evidence does not authorize an acquittal. Monk v. State, 258 Ala. 603, 605, 64 So.2d 588 (1953). A conviction is warranted though the evidence is susceptible of being interpreted that another committed the crime, where such interpretation is not of sufficient force to raise a reasonable doubt of accused's guilt. Brown v. State, 121 Ala. 9, 25 So. 744, 745 (1899)."
546 So.2d at 1021-22.
The federal courts likewise apply the beyond-a-reasonable-doubt standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), when assessing the sufficiency of the evidence, whether direct or circumstantial, to support a criminal conviction. The "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. 2781. As the Supreme Court went on to explain, the beyond-a-reasonable-doubt standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." 443 U.S. at 319, 99 S.Ct. 2781.
*523 It is clear that the proof beyond a reasonable doubt standard is based on well-established Alabama and federal caselaw. We see no reason to depart from such long-standing precedent.
Penalty-Phase Issues
XIV.
Section § 13A-5-45(g), Ala.Code 1975, provides:
"The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52. When the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of interjecting the issue, but once it is interjected the state shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence."
Despite the plain language of § 13A-5-45(g), Lewis argues that the State enjoys a higher burden of proof when seeking to disprove the factual existence of a mitigating circumstance. Specifically, Lewis contends that when disproving the existence of a mitigating circumstance, the State should be required to do so "beyond a reasonable doubt" or "by clear and convincing evidence," rather than by a preponderance of the evidence, as set out in § 13A-5-45, Ala.Code 1975. This claim was not presented to the trial court. Thus, it is subject to review only under the plain-error standard.
Section 13A-5-45(g) is not unconstitutional because it provides a lower standard for disproving mitigating evidence. Indeed, this Court has held that "it is constitutionally permissible to place the burden of proving the mitigating circumstances on the defendant." Cochran v. State, 500 So.2d 1161, 1172 (Ala.Crim.App. 1984), rev'd on other grounds, 500 So.2d 1179 (Ala.1985). Moreover, both this Court and the Alabama Supreme Court have recognized on numerous occasions that the proper burden of proof when the State attempts to disprove a mitigating circumstance is "by a preponderance of the evidence." See, e.g., George v. State, 717 So.2d 844, 848 (Ala.1996); Dill v. State, 600 So.2d 343, 362 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993). We note that § 13A-5-45(g) nevertheless imposes a more stringent standard on the State to disprove the existence of mitigating circumstances than it does on the defendant who must only "interject" the issue of mitigation. Moreover, as the State correctly points out, this Court has previously rejected claims regarding the claims requiring the State to disprove the existence of mitigating circumstances only by a "preponderance of the evidence," rather than by a higher standard of proof: "Since the burden to prove mitigating circumstances could constitutionally be placed entirely on a defendant, [an] appellant is not justified in complaining about the statute which places a burden on the State to disprove evidence offered in mitigation when the factual existence of the mitigating evidence is in dispute." Haney v. State, 603 So.2d 368, 391 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). No basis for reversal exists as to this claim.
XV.
Lewis argues that the State was guilty of several instances of prosecutorial misconduct during closing argument at the penalty phase of his trial. Specifically, he contends that the prosecutor improperly vouched for the State's case, and that the prosecutor improperly argued victim-impact evidence.
*524 In reviewing these claims, we again begin our analysis by looking to the legal principles set out in Part IX of this opinion. See Lockhart v. State, 715 So.2d at 902-03.
A.
Lewis first argues that the prosecutor improperly vouched for the credibility of the State's case, particularly the testimony of Lewis's codefendant, Free, who testified against him. We note that Lewis did not object to the prosecutor's argument at trial. Therefore, we review this claim under the plain-error standard.
In DeBruce v. State, 651 So.2d 599, 610-11 (Ala.Crim.App.1993), aff'd, 651 So.2d 624 (Ala.1994), this Court stated:
"A distinction must be made between an argument by the prosecutor personally vouching for a witness, thereby bolstering the credibility of the witness, and an argument concerning the credibility of a witness based upon the testimony presented at trial. `[P]rosecutors must avoid making personal guarantees as to the credibility of the state's witnesses.' Ex parte Parker, 610 So.2d 1181 (Ala.1992). See Ex parte Waldrop, 459 So.2d 959, 961 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).
"`"Attempts to bolster a witness by vouching for his credibility are normally improper and error." ... The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility.... This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness' veracity.... Secondly, a prosecutor may implicitly vouch for the witness' veracity by indicating that information not presented to the jury supports the testimony.'
"United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984)."
Accord Wilson v. State, 777 So.2d 856, 903 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097, 121 S.Ct. 826, 148 L.Ed.2d 709 (2001); Price v. State, 725 So.2d 1003, 1030 (Ala.Crim.App. 1997), aff'd, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999).
As part of his closing argument, the prosecutor explained the role he had played in prosecuting Lewis's codefendant, Free, as well as his rationale for calling Free to testify against Lewis. The prosecutor noted that, as the district attorney, he knew that Free "got no deal" to testify. The prosecutor then set out his case, explaining why death was the appropriate punishment for Lewis. In response to the prosecutor's closing argument, defense counsel countered by presenting his explanation of why Lewis should not be sentenced to death including the fact that Lewis's accomplice was sentenced to life imprisonment without the possibility of parole, rather than death. On rebuttal, the prosecutor responded to defense counsel's comments, stating that although Free was sentenced to life imprisonment without the possibility of parole, he had asked that Free be sentenced to death just as he was asking for Lewis to be sentenced to death. He explained that he was asking that Lewis be sentenced to death, based on Lewis's role as Kaye's shooter.
After carefully reviewing the closing arguments of both the prosecutor and defense counsel, we conclude that the prosecutor's comments did not constitute *525 vouching for the State's case. Instead, it appears that the prosecutor's initial remarks were an explanation of the State's case and his impressions based on the evidence. Therefore, his comments do not constitute error. See Boyd v. State, 715 So.2d at 841. Further, the prosecutor's subsequent remarks during rebuttal constituted a reply-in-kind to defense counsel's arguments regarding Free's sentence. "`A prosecutor has a right based on fundamental fairness to reply in kind to the argument of defense counsel.'" Johnson v. State, 823 So.2d 1, 47 (Ala.Crim.App. 2001) (quoting DeBruce v. State, 651 So.2d at 609).
B.
Lewis also argues that the prosecutor improperly presented victim-impact evidence during his closing argument.
Initially, we note that victim-impact evidence is not inadmissible. As this Court stated in Miller v. State, 913 So.2d 1148 (Ala.Crim.App.2004):
"The United States Supreme Court has specifically recognized the admissibility of victim-impact testimony to offer the jury a "quick glimpse" of the uniqueness of the life taken by the defendant. Payne v. Tennessee, 501 U.S. 808, 823, 830-31, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Moreover, this Court has followed the holding in Payne v. Tennessee on numerous occasions, recognizing the admissibility of evidence of this kind as relevant to the determination of the appropriate punishment to be imposed. See, e.g., Taylor v. State, 808 So.2d 1148, 1167 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001), cert. denied, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002).
"'"If a State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated."'"
"Boyd v. State, 746 So.2d 364, 383 (Ala. Crim.App.1999) (quoting Payne v. Tennessee, 501 U.S. at 827, 111 S.Ct. 2597). See also McNair v. State, 653 So.2d 320, 331 (Ala.Crim.App.1992), aff'd, 653 So.2d 353 (Ala.1994) ('[A] prosecutor may present and argue evidence relating to the victim and the impact of the victim's death on the victim's family in the penalty phase of a capital trial.')."
913 So.2d at 1164.
Moreover, our review of the record convinces us that the prosecutor's objected-to remarks constituted a reply-in-kind to defense counsel's argument specifically, that part of counsel's argument focusing on the testimony of Lewis's mother in an attempt to persuade the jury to spare Lewis's life. In an attempt to countermand counsel's attempt to draw upon the sympathy of the jury by emphasizing the testimony of Lewis's mother, the prosecutor was entitled to "reply in kind" by pointing out to the jury the loss suffered by Kaye's family particularly his mother as a result of Lewis's actions. Given these circumstances, no basis for reversal exists.
XVI.
Lewis next argues that the jury should have been instructed that there is a presumption that the mitigating circumstances outweigh the aggravating circumstances, and further, that there is a presumption *526 that the law favors a sentence of life imprisonment without the possibility of parole, rather than death. Because this claim was not presented to the trial court, we review this claim under the plain-error doctrine.
When reviewing a trial court's jury instructions, this Court keeps in mind the following principles:
"A trial court has broad discretion when formulating its jury instructions. See Williams v. State, 611 So.2d 1119, 1123 (Ala.Cr.App.1992). When reviewing a trial court's instructions, `"the court's charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together."' Self v. State, 620 So.2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App. 1987)); see also Beard v. State, 612 So.2d 1335 (Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130 (Ala.Cr.App. 1992)."
Williams v. State, 795 So.2d 753, 780 (Ala. Crim.App.1999), aff'd, 795 So.2d 785 (Ala. 2001). "The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh against his claim of prejudice." Ex parte Boyd, 715 So.2d 852, 855 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998).
Initially, we note that Lewis has cited no Alabama caselaw in support of his claim that such a jury instruction should have been given. Moreover, the court's instructions were materially identical to Alabama's pattern jury instructions regarding these legal principles. This Court, as well as the Supreme Court, has generally declined to find plain error when the trial court gives an instruction materially identical to the pattern jury instructions. "A trial court's following of an accepted pattern jury instruction weighs heavily against any finding of plain error." Price v. State, 725 So.2d 1003, 1058 (Ala. Crim.App.1997), aff'd, 725 So.2d 1063 (Ala. 1998), cert. denied 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); accord Lewis v. State, 889 So.2d 623, 690 (Ala. Crim.App.2003).
We have carefully reviewed the trial court's instructions. When taken in its entirety, the court's instructions in this case clearly comport with current Alabama caselaw regarding the weighing of aggravating circumstances and mitigating circumstances. The court explained that the jury could recommend the death penalty only if it determined that the aggravating circumstances outweighed the mitigating circumstances. The court's instruction did not run afoul of either Ex parte Bryant, 951 So.2d 724 (Ala.2002), or Ex parte Trawick, 698 So.2d 162 (Ala.1997). Thus, we find no plain error in the instruction as given.
XVII.
Lewis argues that the trial court erred in refusing to instruct the jury on residual doubt during the penalty phase of his trial.
Relying on the United States Supreme Court decision in Franklin v. Lynaugh, 487 U.S. 164, 172-76, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), this Court has held on numerous occasions that "capital defendants have no right to demand jury consideration of `residual doubts' in the sentencing phase." See, e.g., Melson v. State, 775 So.2d 857, 898 (Ala.Crim.App.1999), aff'd, 775 So.2d 904 (Ala.2000); Rieber v. State, 663 So.2d 985, 995 (Ala.Crim.App.1994); Carroll v. State, 599 So.2d 1253, 1271 (Ala. Crim.App.1992), aff'd, 627 So.2d 874 (Ala. 1993), cert. denied, 510 U.S. 1171, 114 *527 S.Ct. 1207, 127 L.Ed.2d 554 (1994). We explained in Melson:
"In Myers v. State, 699 So.2d 1281 (Ala.Cr.App.1996), aff'd, 699 So.2d 1285 (Ala.1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998), this court stated the following concerning jury instructions on `residual doubt':
"`"`Our cases do not support the proposition that a defendant who has been found to be guilty of a capital crime beyond a reasonable doubt has a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt. We have recognized that some states have adopted capital sentencing procedures that permit defendants in some cases to enjoy the benefit of doubts that linger from the guilt phase of the trial, see Lockhart v. McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 1768, 90 L.Ed.2d 137 (1986), but we have never indicated that the Eighth Amendment requires states to adopt such procedures. To the contrary, as the plurality points out, we have approved capital sentencing procedures that preclude consideration by the sentencing body of "residual doubts" about guilt. See Ante, [487 U.S. at 173 n. 6, 108 S.Ct.] at 2327, n. 6.
"`"`Our decisions mandating jury consideration of mitigating circumstances provide no support for petitioner's claim because "residual doubt" about guilt is not a mitigating circumstance. We have defined mitigating circumstances as facts about the defendant's character or background, or the circumstances of the particular offense, that may call for a penalty less than death. [citations omitted]. "Residual doubt" is not a factor about the defendant or the circumstances of the crime. It is instead a lingering uncertainty about facts, a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty."'"'
"699 So.2d at 1283-84, quoting Harris v. State, 632 So.2d 503, 535 (Ala.Crim.App. 1992), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (D.Ala.1995), quoting in turn Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)."
775 So.2d at 898-99. Accordingly, the circuit court correctly denied Lewis's requested jury charge on "residual doubt."
XVIII.
Lewis argues that the circuit court erred by finding the aggravating circumstance that Lewis's murder of Kaye was especially heinous, atrocious, or cruel when compared to other capital offenses. See § 13A-5-49(8), Ala.Code 1975. Specifically, Lewis argues that the trial court's finding as to the existence of this aggravating circumstance was in error because the court's order did not contain the express finding that Kaye's murder was "conscienceless or pitiless and unnecessarily torturous to the victim," and that the court's decision was based on improper factors and/or evidence.
With regard to the finding that the victim's death was especially heinous, atrocious, or cruel when compared to other capital offenses, the court, which had set out findings regarding the victim's injuries in the factual background portion of the sentencing order, further noted:
"The evidence showed beyond a reasonable doubt that the crime committed shocks the conscience of the Court. The victim was beaten repeatedly about his head with a large rock as he begged for his life. He was then placed in the bed of his pick-up truck and shot twice with a handgun. The autopsy also showed *528 that he sustained numerous pain-causing wounds to his body which were capable of causing death. Then, to compound the atrocities that brought Timothy John Kaye's life to an end, his body was taken and dumped in the Choctawhatchee River where it stayed for almost a week. The motive behind this killing was apparently the fact that Timothy John Kaye had been a police informer in a large federal marijuana investigation in the Dothan area."
(C. 265.)
In Barksdale v. State, 788 So.2d 898 (Ala.Crim.App.), cert. denied, 788 So.2d 915 (Ala.2000), we addressed the application of this aggravating circumstance, stating as follows:
"In Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), this Court held that the standard applicable to the `especially heinous, atrocious, or cruel' aggravating circumstance under § 13A-5-49(8), Ala. Code 1975, is that the crime must be one of `those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.' The appellant's assertion that the murder was not unnecessarily torturous to the victim because he did not intentionally inflict prolonged pain upon the victim is without merit. It is not, as the appellant argues, incumbent upon the State to prove that he inflicted savagery or brutality upon the victim, or that he took pleasure in having committed the murder. It is necessary that the State present evidence that the victim suffered some type of physical violence beyond that necessary or sufficient to cause death. Additionally, to support this aggravating factor, the time between at least some of the injurious acts must be an appreciable lapse of time, sufficient enough to cause prolonged suffering, and the victim must be conscious or aware when at least some of the additional or repeated violence is inflicted. See Norris v. State, [793] So.2d [847] (Ala.Cr.App.1999)."
788 So.2d at 907-08.
We also addressed the application of this aggravating circumstance in Taylor v. State, 808 So.2d 1148 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001), noting:
"The Alabama appellate courts' interpretation of `especially heinous, atrocious, or cruel' has passed muster under the Eighth Amendment because those courts have consistently defined the term to include only `those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.' Ex parte Clark, [728 So.2d 1126 (Ala. 1998)], citing, Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989). The Alabama appellate courts have considered the infliction of psychological torture as especially indicative that the offense was 'especially heinous, atrocious or cruel.' Thus, the mental suffering where a victim witnesses the murder of another and then realizes that soon he or she will also be killed, has been found to be sufficient to support a finding of this aggravating circumstance. Norris v. State, 793 So.2d 847, 854 (Ala.Cr.App. 1999). As the trial judge pointed out in his sentencing order, two of the victims here witnessed Taylor kill another victim. Both tried to run and hide, but were captured. Both begged and pleaded for their lives; one offering money and property, the other pleading for the sake of her children. Both were deliberately and methodically executed with a gunshot to the head as they pleaded for their lives. These murders were not accomplished in a rapid-fire manner; there was sufficient time between the three murders for the next victim to be placed in significant fear for his or her life, and the evidence is clear that each *529 was well aware of what was about to happen."
808 So.2d at 1169.
The evidence presented by the State established that the physical violence inflicted on Kaye went far beyond that necessary or sufficient to cause death, that Kaye suffered appreciably during the assault, and that psychological torture was inflicted on Kaye in that his beating lasted for a sufficient period for him to realize his own fate. Indeed, the evidence established that during the beating Kaye begged his assailants to spare his life. Given these circumstances, the State presented sufficient evidence that Kaye's murder was especially heinous, atrocious, or cruel when compared to other capital offenses. Indeed, this Court has upheld the aggravating circumstance that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses on several occasions when a victim's death was caused by a prolonged and vicious beating such as the one inflicted on Kaye by Lewis and his accomplice. See, e.g., Ziegler v. State, 886 So.2d 127, 147 (Ala. Crim.App.2003). Accordingly, the trial court properly concluded that the murder of Kaye was "especially heinous, atrocious, or cruel." See Ex parte Clark, 728 So.2d 1126, 1140 (Ala.1998).
XIX.
Lewis argues that the State had a duty to disclose, in writing, any mitigating circumstances or facts of which it was aware. Additionally, Lewis contends, "the State had a duty to stipulate for the jury that these disclosures were to be considered by the jury as mitigators." (Lewis's brief, p. 75.) Because this issue was not raised at trial, we will review this claim under the plain-error standard.
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court established that a prosecutor has a constitutional duty to disclose evidence favorable to the defendant. Alabama courts have long recognized this principle of law. See, e.g., Smith v. State, 698 So.2d 189, 207 (Ala. Crim.App.1996), aff'd, 698 So.2d 219 (Ala.), cert. denied, 522 U.S. 957, 118 S.Ct. 385, 139 L.Ed.2d 300 (1997). Further, "[t]his duty extends to evidence favorable on the issue of sentencing as well as on the issue of guilt." Ex parte Monk, 557 So.2d 832, 837 (Ala.1989) (citing Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194). The disclosure of evidence favorable to the defendant is particularly important in a capital case, given the requirement in § 13A-5-45(g) that a "defendant shall be allowed to offer any mitigating circumstance, as defined in Sections 13A-5-51 and 13A-5-52." In Ex parte Monk, the Alabama Supreme Court recognized that capital cases, by their very nature, were sufficiently different from other cases to justify the exercise of judicial authority to order the State to maintain ongoing "open file" policy in regard to discovery on the part of the defendant, subject to certain prosecutorial safeguards. 557 So.2d at 836-37. The Supreme Court recognized that one purpose of "open file" discovery was to allow a defendant's attorneys to view all the evidence and make an independent determination of what, if any, of the State's file might be considered as mitigating evidence. As the Court explained: "The prosecutor cannot screen files for potential mitigating evidence to disclose to the defense counsel because, `[w]hat one person may view as mitigating, another may not.'" Ex parte Monk, 557 So.2d at 837 (quoting Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984)). Here, Lewis filed a motion requesting open file discovery; at a motion hearing on August 19, 1998, the *530 State agreed to provide open file discovery. Thus, any mitigating evidence in the possession of the State was subject to discovery by defense counsel during counsel's review of the State's files. Moreover, our review of the record fails to indicate any failure by the State to disclose potential mitigating evidence to Lewis.
We now turn to Lewis's claim that the State should be required to stipulate to potentially mitigating evidence. However, such a requirement would run afoul of § 13A-5-45(g), which permits the State to disprove the factual existence of a disputed mitigating circumstance. Moreover, such a claim is inconsistent with well-settled Alabama law. As we stated in Duncan v. State, 624 So.2d 1084, 1086 (Ala.Crim.App.1993), "[i]n Alabama, a party is not required to accept his adversary's stipulation, but may insist on proving the fact." Quoted with approval in Peraita v. State, 897 So.2d 1161, 1193 (Ala.Crim.App. 2003), aff'd, 897 So.2d 1227 (Ala.2004). Accordingly, no basis for reversal exists as to this claim.
XX.
Lewis argues that the trial court acted arbitrarily and capriciously in sentencing him to death. Lewis's argument is divided into two parts: first, that the trial court improperly ignored mitigating circumstances and failed to perform a proportionality analysis; and second, that the trial court erroneously concluded that the aggravating circumstances outweighed the mitigating circumstances.
A.
Lewis claims that the trial court failed to consider a number of nonstatutory mitigating circumstances; namely, (1) that Free, Lewis's codefendant, had been sentenced to life imprisonment without the possibility of parole; (2) that Lewis was intoxicated on the night of Kaye's murder; (3) that two jurors recommended a sentence of life imprisonment without the possibility of parole; (4) that Lewis was suffering from sleep deprivation on the night Kaye was killed; (5) that Lewis had the potential for rehabilitation; (6) that Lewis had a positive relationship with his family; (7) that Lewis was a "hard worker"; (8) that Lewis exhibited good behavior while in jail; and (9) that Lewis's life still had purpose and value.
In reviewing this argument, we are guided by the following principles:
"A sentencer in a capital case may not refuse to consider or be `precluded from considering' mitigating factors. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978)). The defendant in a capital case generally must be allowed to introduce any relevant mitigating evidence regarding the defendant's character or record and any of the circumstances of the offense, and consideration of that evidence is a constitutionally indispensable part of the process of inflicting the penalty of death. California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Ex parte Henderson, 616 So.2d 348 (Ala.1992); Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Carroll v. State, 599 So.2d 1253 (Ala.Cr.App.1992), aff'd, 627 So.2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994). See also Ex parte *531 Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985)."
Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997). See also Boyd v. State, 715 So.2d 825, 840 (Ala.Crim.App.1997), aff'd, 715 So.2d 852 (Ala.1998).
We have carefully considered the evidence presented by Lewis during the penalty phase of his trial, together with the trial court's sentencing order. Contrary to Lewis's claim, it is clear from the court's sentencing order that the trial court considered all of the evidence Lewis presented as mitigation. However, it is equally clear that the trial court concluded that only part of the evidence presented actually constituted mitigating evidence. Indeed, this Court rejected a similar argument in Haney v. State, 603 So.2d 368, 389 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992), noting:
"In the instant case, appellant was afforded a full and unrestricted opportunity to present mitigating evidence regarding her character, background, motivations, and record and the circumstances of the offense. The order of the trial court clearly shows that it considered all relevant statutory and non-statutory mitigating evidence. We find no merit to appellant's contention that the trial court failed to consider her evidence of non-statutory mitigating circumstances. It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Cochran v. State, 500 So.2d 1161 (Ala.Cr.App.1984), aff'd in pertinent part, remanded on other part, 500 So.2d 1179 (Ala.1985), aff'd on return to remand, 500 So.2d 1188 (Ala.Cr. App.), aff'd, 500 So.2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987)."
Likewise, the fact that Lewis's codefendant, Free, was sentenced to life imprisonment without the possibility of parole rather than death does not render the trial court's decision to sentence Lewis to death "excessive and disproportionate." Addressing this issue, the Alabama Supreme Court has written:
"The law does not require that each person involved in a crime receive the same sentence. Wright v. State, 494 So.2d 726, 739 (Ala.Crim.App.1985) (quoting Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970)). Appellate courts should `examine the penalty imposed upon the defendant in relation to that imposed upon his accomplices, if any.' Beck v. State, 396 So.2d 645, 664 (Ala.1980). However, the sentences received by codefendants are not controlling per se, Hamm v. State, 564 So.2d 453, 464 (Ala.Crim.App.1989), and this Court has not required or directed that every person implicated in a crime receive the same punishment. Williams v. State, 461 So.2d 834, 849 (Ala.Crim.App.1983), rev'd on other grounds, 461 So.2d 852 (Ala.1984). `"There is not a simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser sentence."' Id. (quoting Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979))."
Ex parte McWhorter, 781 So.2d 330, 344 (Ala.2000) (emphasis supplied). This Court has likewise declined to abandon the practice of individualized sentencing based on a defendant's particular role in the capital *532 offense. See, e.g., Taylor v. State, 808 So.2d 1148, 1201 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001), cert. denied, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002), in which this Court upheld imposition of Taylor's death sentence based on the fact that Taylor and not his codefendant was the triggerman who actually shot and killed the victim. Accord Irvin v. State, 940 So.2d 331, 368-69 (Ala.Crim.App.2005).
Here, it is clear that the trial court considered all the evidence offered as mitigation by Lewis. The fact that the court determined that only a portion of that evidence actually qualified as mitigating evidence does not render the trial court's decision to sentence Lewis to death "arbitrary and capricious." Nor does the fact that the trial court sentenced Lewis's codefendant to life imprisonment without the possibility of parole render Lewis's death sentence "excessive and disproportionate," given that the evidence indicated that Lewis, the defendant, rather than Free, the codefendant, was the triggerman in Kaye's murder.
B.
Lewis also argues that the trial court erroneously concluded that the aggravating circumstances outweighed the mitigating circumstances. The gist of Lewis's argument appears to be based on numbers; namely, that because the trial court found the existence of only two aggravating circumstances and five mitigating circumstances, Lewis should not have been sentenced to death.
Contrary to Lewis's contention, however, § 13A-5-48, Ala.Code 1975, explicitly states that the process of weighing the aggravating circumstances and mitigation circumstances to determine a capital defendant's sentence "shall not be defined to mean a mere tallying of aggravating and mitigating circumstances for the purposes of numerical comparison." Alabama courts have made it equally clear that the weighing process is more than a matter of mere numerical tallying. See, e.g., Ex parte Cook, 369 So.2d 1251, 1257 (Ala.1978) ("We can readily envision situations where several aggravating circumstances may not be sufficient to outweigh only one mitigating circumstance and, on the other hand, where numerous mitigating circumstances may be present but opposed to one aggravating circumstance so outrageous as to justify the death penalty."). See also Bush v. State, 695 So.2d 70, 94 (Ala.Crim. App.), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997).
Here, the trial court found the existence of two aggravating circumstances: (1) that Kaye's murder was committed while Lewis and Free were engaged in the commission of first-degree kidnapping; and (2) that Kaye's murder was especially heinous, atrocious, or cruel, when compared to other capital offenses. The trial court stated that although only two aggravating circumstances were found to exist, the seriousness of those circumstances clearly outweighed the five mitigating circumstances, noting:
"Taking into account all possible mitigating circumstances, both those enumerated by statute and those offered by the circumstances of the life of Michael Jerome Lewis, all the mitigating circumstances found to exist taken together are extremely weak in comparison to the aggravating circumstances of this offense.
"I, therefore, order that the Defendant shall be punished by death as provided by law."
(C. 266.)
Given the circumstances surrounding Kaye's death, the trial court could have *533 concluded that the aggravating circumstances outweighed the mitigating circumstances. Thus, no basis for reversal exists as to this claim.
XXI.
Lewis argues that Alabama's death penalty violates the holdings in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). Specifically, Lewis contends that our death-penalty scheme runs afoul of Ring v. Arizona because (1) it authorizes the trial judge rather than the jury to determine the existence of aggravating circumstances and mitigating circumstances, and to determine whether the aggravating circumstances outweigh the mitigating circumstances; (2) it does not require a unanimous finding by the jury as to whether the aggravating circumstances exist beyond a reasonable doubt and whether the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt; (3) it does not require that the indictment returned against Lewis specify the aggravating circumstances the State intends to offer during the penalty phase; and (4) it does not require the jury to issue written findings regarding which aggravating circumstances it found to exist. Additionally, Lewis contends that our death-penalty statute runs afoul of Bush v. Gore because it fails to set forth uniform standards as to how much weight a jury's sentencing recommendation should be given by the trial judge.
A.
In Ring, the United States Supreme Court applied its earlier holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to death-penalty cases and held that "[c]apital defendants ... are entitled to a jury determination on any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589, 122 S.Ct. 2428.
Lewis argues that Apprendi and Ring require that the aggravating circumstances be set out in the indictment returned against him. Further, he argues, these decisions are consistent with well-established legal precedent mandating that the accused be provided notice of the facts upon which the State intends to rely at trial, particularly the aggravating circumstances it intends to establish. The State counters by arguing that Lewis's death sentence complies with applicable Alabama law and that nothing in Apprendi, Ring, or any other decision requires the State to include the aggravating circumstances in the indictment or to give an accused notice of the aggravating circumstances upon which the State intends to rely.[12]
In several recent decisions, both this Court and the Alabama Supreme Court have agreed with the State's rationale that Ring did not invalidate Alabama's death-penalty statute, which vests the ultimate sentence determination in the hands of the trial judge and not a jury. See, e.g., Ex parte Hodges, 856 So.2d 936 (Ala.2003); Ex parte Waldrop, 859 So.2d 1181 (Ala. 2002); Duke v. State, 889 So.2d 1, 41 (Ala. Crim.App.2002) (opinion on return to remand), cert. granted, sentence of death vacated pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), 544 U.S. 901, 125 S.Ct. 1588, 161 L.Ed.2d 270; Turner v. State, 924 So.2d 737, 785 (Ala.Crim.App.2002); Stallworth v. State, 868 So.2d 1128, 1178 (Ala.Crim. *534 App.2001) (opinion on return to second remand). In each of these cases, we recognized the narrowness of the holding in Ring, noting that "[t]he Ring Court held that any aggravating circumstance that increased a sentence to death must be proved to a jury beyond a reasonable doubt"; however, we noted that the Ring Court "did not reach the question whether judicial sentencing or judicial override was constitutional." Stallworth v. State, 868 So.2d at 1183 (opinion on return to second remand). Indeed, we quoted the following language from a footnote in Ring:
"`Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circumstances. See Apprendi v. New Jersey, 530 U.S. 466, 490-91, n. 16, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting "the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation" (citation omitted [in Ring])). Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion) ("[I]t has never [been] suggested that jury sentencing is constitutionally required."). He does not question the Arizona Supreme Court's authority to reweigh the aggravating and mitigating circumstances after that court struck one aggravator. See Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S., at 477, n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Fourteenth Amendment "has not ... been construed to include the Fifth Amendment right to `presentment or indictment of a Grand Jury'").'"
Stallworth v. State, 868 So.2d at 1183-84 (quoting Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428) (emphasis added).
This Court, in Stallworth v. State, specifically rejected an argument virtually identical to Lewis's namely, that "the indictment [against him] was void because it failed to include in the indictment the aggravating circumstances" that supported the capital offense. 868 So.2d at 1186. We rejected Stallworth's argument, holding that neither Ring v. Arizona nor Apprendi v. New Jersey modified prior Alabama caselaw, "which holds that aggravating circumstances do not have to be alleged in the indictment." 868 So.2d at 1186. The indictment returned against Lewis advised him of the crime with which he was charged the capital offense of murder during kidnapping, in violation of § 13A-5-40(a)(1), Ala.Code 1975 and set forth the elements of the offense that the State was required to prove. Included in the indictment was the aggravating circumstance of kidnapping in the first degree, thus placing Lewis on notice that, if convicted, he could be facing a death sentence. Because this single aggravating circumstance placed Lewis on notice that, if convicted of the charged offense he could be facing a potential death sentence, it was unnecessary for the State to amend the indictment so that it included all of the aggravating circumstances the State intended to prove at trial.
*535 Likewise, neither Ring v. Arizona nor Apprendi v. New Jersey requires that an accused be provided with advance notice of all aggravating circumstances upon which the State intends to rely. Indeed, this Court has stated the following with regard to the other enumerated aggravating circumstances listed in § 13A-5-49 that are not elements of a capital offense:
"The aggravating circumstances enumerated in § 13A-5-49 that may lead to the imposition of the death penalty in a capital case are not elements of the offense and are not required to be set forth in the indictment. Dobard v. State, 435 So.2d 1338, 1347 (Ala.Cr.App. 1982), aff'd, 435 So.2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). A defendant has no right to advance notice of the state's intention to rely on any of the aggravating circumstances. Clark v. Dugger, 834 F.2d 1561, 1566 (11th Cir. 1987), cert. denied, 485 U.S. 982, 108 S.Ct. 1282, 99 L.Ed.2d 493 (1988); Knotts v. State, 686 So.2d 431 (Ala.Cr. App.[1995]); Ruffin v. State, 397 So.2d 277, 282 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). The list of aggravating circumstances in § 13A-5-49 is exclusive and puts the defendant charged with a capital felony on notice of those circumstances against which the defendant may be required to defend. This statutory notice satisfies constitutional requirements."
Bush v. State, 695 So.2d 70, 87 (Ala.Crim. App.1995), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997). Cf. Arthur v. State, 711 So.2d 1031 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997) (when aggravating circumstances relied on by the State are elements of the capital offense they must be charged in the indictment).
Here, Lewis was given notice of the aggravating circumstance that constituted an element of the capital offense with which he was charged. Accordingly, the circuit court correctly denied Lewis's request for such notice.
Lewis further argues that Ring requires the jury to issue written findings regarding which aggravating circumstances it finds to exist.
This Court has rejected similar claims in previous death-penalty decisions. See, e.g., Walker v. State, 932 So.2d 140, 147 (Ala.Crim.App.2004). The Alabama Supreme Court has likewise rejected this argument. The Supreme Court has held, in numerous cases, that the jury's verdict finding a defendant guilty of capital murder during the guilt phase of his trial, indicated that the jury had unanimously found a proffered aggravating circumstance included within the § 13A-5-40(a), Ala.Code 1975, definition of the particular capital-murder offense charged in the indictment. See, e.g., Ex parte Hodges, 856 So.2d 936 (Ala.2003); Ex parte Waldrop, 859 So.2d 1181 (Ala.2002); Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001) (opinion on return to second remand), cert. denied, 868 So.2d 1189 (Ala.2003). But see Ex parte McGriff, 908 So.2d 1024, 1039 (Ala.2004) (authorizing prospective use of a penalty-phase special interrogatory). Moreover, in Ex parte McNabb, 887 So.2d 998 (Ala.2004), the Supreme Court held that even a nonunanimous recommendation of death by the jury proved that the jury, including the jurors who voted against the recommendation of death, had unanimously found the existence of a proffered aggravating circumstance, even though the circumstance was not included within the definition of the particular capital-murder offense charged in the indictment, because the trial court had specifically instructed the jury that it could not *536 proceed to a vote on whether to impose the death penalty unless it had already unanimously agreed that the aggravating circumstance existed. Because the jury recommended by a vote of 10-2 that Lewis be sentenced to death, it is clear that it unanimously found the existence of at least one aggravating circumstance.
B.
Lewis also contends that our death-penalty scheme violates the Equal Protection Clause because, he says, it is arbitrary and disparate in that it fails to set forth uniform standards as to the weight a trial court must give a jury's sentencing recommendation. As authority for this proposition, Lewis cites the decision in Bush v. Gore. We fail to see how this decision lends support for Lewis's claim, given that the Supreme Court took care to state that its decision was "limited to the present circumstances," noting that "the problem of equal protection in election processes generally present many complexities." 531 U.S. at 109, 121 S.Ct. 525. Moreover, in Harris v. Alabama, 513 U.S. 504, 511-15, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), the United States Supreme Court rejected a claim that Alabama's death penalty statute was unconstitutional because it did not specify what weight the trial court must afford a jury's recommendation. Alabama courts have rejected similar claims that trial judges deprive defendants of equal protection under the law by employing different processes in determining what weight to give a jury's recommendation as to sentencing. See, e.g., Smith v. State, 756 So.2d 892, 920 (Ala.Crim.App.1997), aff'd, 756 So.2d 957 (Ala.), cert. denied, 531 U.S. 830, 121 S.Ct. 82, 148 L.Ed.2d 44 (2000). Thus, no basis for reversal exists as to these claims.
XXII.
In Part XVIII of his brief, Lewis makes a general argument that Alabama's death penalty is unconstitutional because, he says, "there is a substantial risk that we are executing the innocent and executing the guilty, who deserve punishment, but not the death penalty." (Lewis's brief, p. 67.) Lewis also contends that the death penalty is unconstitutional because of geographic and racial disparities in the charging, sentencing, and imposition of the death penalty. Finally, he contends that the death penalty is unconstitutional because, he says, it is applied in an arbitrary, capricious, and irrational manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
Alabama's statutory death-penalty scheme has repeatedly been upheld against constitutional challenges. A comprehensive listing of the cases in which Alabama appellate courts have rejected such challenges can be found in Travis v. State, 776 So.2d 819, 873 (Ala.Crim.App. 1997), aff'd, 776 So.2d 874 (Ala.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 785, 148 L.Ed.2d 681 (2001). Further, Lewis makes no individualized claim that, as it specifically applies to him, execution by lethal injection constitutes cruel and unusual punishment. As we stated in Bryant v. State, 951 So.2d 732, 747-48 (Ala.Crim. App.2003) (opinion on return to remand):
"We note that Alabama's statutory death-penalty scheme has repeatedly been upheld against constitutional challenges. A comprehensive listing of the cases dealing with these challenges can be found in Travis v. State, 776 So.2d 819, 873 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala.2000), cert. denied, 531 U.S. 1081 (2001). Moreover, we know of no authority in support of the general proposition that death by lethal injection violates a defendant's constitutional rights. Indeed, a number of jurisdictions have rejected such claims. See, *537 e.g., Sims v. State, 754 So.2d 657, 668 (Fla.2000); State v. Carter, 89 Ohio St.3d 593, 608, 734 N.E.2d 345 (2000); Ritchie v. State, 809 N.E.2d 258, 262 (Ind.2004); Wheeler v. Commonwealth, 121 S.W.3d 173, 186 (Ky.2003).3 Today, we join these jurisdictions in holding that death by lethal injection is not per se cruel and unusual punishment.
"___________
"3 Indeed, the only case we know of successfully challenging execution by lethal injection involved an inmate's individualized claim that death by lethal injection would violate the Eighth Amendment's prohibition against cruel and unusual punishment because he suffered from collapsed veins. See Nelson v. Campbell, 541 U.S. 637 (2004). Bryant makes no such individualized claim. Thus, he is entitled to no relief on his claim that death by lethal injection constitutes cruel and unusual punishment."
See also Brown v. State, 11 So.3d 866, 927 (Ala.Crim.App.2007); Belisle v. State, 11 So.3d 256, 318 (Ala.Crim.App.2007); Brooks v. State, 973 So.2d 380, 420-21 (Ala.Crim.App.2007). In addition to Alabama, other states have likewise rejected constitutional challenges to execution by lethal injection, finding this method is almost "`universally recognized as the most humane method of execution, and least apt to cause unnecessary pain.'" State v. Webb, 252 Conn. 128, 145, 750 A.2d 448, 457 (2000) (citing, in turn, Woolls v. McCotter, 798 F.2d 695, 698 (5th Cir.), cert. denied, 478 U.S. 1031, 107 S.Ct. 15, 92 L.Ed.2d 769 (1986); Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608 (1989); Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D.Ark.1992); Felder v. Estelle, 588 F.Supp. 664, 674 (S.D.Tex. 1984); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602 (1995); State v. Deputy, 644 A.2d 411, 421 (Del.Super.1994); People v. Stewart, 123 Ill.2d 368, 386, 123 Ill.Dec. 927, 528 N.E.2d 631 (1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356, 103 L.Ed.2d 824 (1989); State v. Moen, 309 Or. 45, 98-99, 786 P.2d 111 (1990); Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo.1990)). We note, however, that since this Court released its decision in Bryant, one California court has held that lethal injection "as actually administered in practice" violates the prohibition against cruel and unusual punishment. See Morales v. Tilton, 465 F.Supp.2d 972, 974 (N.D.Cal.2006). Moreover, on September 25, 2007, the United States Supreme Court announced that it would consider whether execution by lethal injection violated the Eighth Amendment's prohibition against cruel and unusual punishment. See Baze v. Rees, 551 U.S. 1192, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007). Until the United States Supreme Court provides further guidance on this issue, we decline to revisit our holding in Bryant and its progeny, given the number of other jurisdictions that have rejected the merits of a similar claim.
XXIII.
Lewis claims, in Part XXI of his brief, that "the appellate courts are not independently finding and weighing mitigation evidence." (Lewis's brief, p. 70). The gist of Lewis's claim appears to be that § 13A-5-53, Ala.Code 1975, not only requires this Court to independently consider the aggravating circumstances and mitigating circumstances offered by the parties and found to exist by the trial court, but also requires it to consider mitigating evidence that the trial court did not consider. This Court has rejected similar claims in previous death-penalty decisions.
"In support of this argument, Clark asks this Court to consider a litany of mitigating circumstances that the trial court *538 found not to exist. (See Part XIII of this opinion.) However, as this Court stated in Roberts v. State, 735 So.2d 1244 (Ala.Crim.App.1997):
"`In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court.'
"735 So.2d at 1269 (emphasis added). See also Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.), cert. denied, 522 U.S. 848, 118 S.Ct. 135, 139 L.Ed.2d 84 (1997). This Court cannot, as Clark urges us to do, consider mitigating circumstances not found to exist by the trial court."
Clark v. State, 896 So.2d 584, 657-58 (Ala. Crim.App.2000). Thus, we are unable to consider mitigating evidence not considered by the trial court.
XXIV.
Lewis contends that the cumulative effect of the alleged errors discussed in his brief to this Court injuriously affected his substantial rights, and, thus, requires that his conviction and death sentence be reversed.
The Alabama Supreme Court has set forth the cumulative-error rule as follows: "[W]hile, under the facts of a particular case, no single error among multiple errors may be sufficiently prejudicial to require reversal under Rule 45, if the accumulated errors have `probably injuriously affected substantial rights of the parties,' then the cumulative effect of the errors may require reversal." Ex parte Woods, 789 So.2d 941, 942-43 n. 1 (Ala.2001) (quoting Rule 45, Ala.R.App.P.). Applying this standard to Lewis's allegation of cumulative error, we have scrupulously reviewed the record and find no evidence that the cumulative effect of any of the individually nonreversible errors in this case affected Lewis's substantial rights at trial.
XXV.
Lewis requests, in Part XXIII of his brief, that this Court examine the record for plain error. As we stated at the outset, because Lewis was sentenced to death, the plain-error standard is the correct standard of review. Moreover, as required by Rule 45A, Ala.R.App.P., we have searched the record for any error that may have adversely affected Lewis's substantial rights and have found none.
XXVI.
Finally, Lewis reminds this Court of its responsibility under § 13A-5-53, Ala.Code 1975, to review the propriety of his death sentence.[13] In so doing, Lewis argues that death is not the appropriate sentence in his case, and he urges this Court to set aside his sentence.
Lewis was indicted and convicted of murder committed during a kidnapping in the first degree. § 13A-5-40(a)(1), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Lewis be sentenced to death.
The record reflects that Lewis's sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(1), Ala. Code 1975.
The trial court found that the aggravating circumstances outweighed the mitigating circumstances and mandated that Lewis be sentenced to death. The court found the existence of two aggravating circumstances: (1) that the capital offense was *539 committed while Bryant was engaged in the commission of first-degree kidnapping, see § 13A-5-49(4), Ala.Code 1975; and (2) that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses, see § 13A-5-49(8), Ala. Code 1975. The trial court found the existence of none of the mitigating circumstances enumerated in § 13A-5-51, Ala. Code 1975. Pursuant to § 13A-5-52, the court found evidence of the following nonstatutory mitigating circumstance: (1) that Lewis "suffered at least three head injuries in his younger years, two of which were fairly severe"; (2) that Lewis "was physically and verbally abused by his stepfather," and that he witnessed his stepfather physically and verbally abuse his mother and half-brother; (3) that Lewis "was made to live in a motel room by himself as a child, and was required to work around the motel his stepfather operated before and after school, even late into the night"; (4) that Lewis had abused a number of controlled substances and alcohol; and (5) that Lewis suffered mild cognitive impairment as a result of his head injuries. However, the trial court found that the aggravating circumstances outweighed the mitigating circumstances and mandated that Lewis be sentenced to death.
The trial court's finding that the aggravating circumstance that the murder was committed during the commission of first-degree kidnapping is supported by the evidence. The trial court's finding that the victim's death was especially heinous, atrocious, or cruel when compared to other capital offenses is likewise supported by the record, as discussed in Part XVIII of this opinion.
The fact that the trial court found the existence of two aggravating circumstances and "some evidence" of numerous nonstatutory mitigating circumstances does not indicate that the court's decision to sentence Lewis to death was erroneous. In Bush v. State, 695 So.2d 70 (Ala.Crim. App.1995), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997), this Court stated:
"`[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd on other grounds, 455 So.2d 72 (Ala.1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.'
"Clisby v. State, 456 So.2d 99, 102 (Ala. Cr.App.1983)."
695 So.2d at 94. As the Alabama Supreme Court stated in Ex parte Cook, 369 So.2d 1251, 1257 (Ala.1978): "We can readily envision situations where several aggravating circumstances may not be sufficient to outweigh only one mitigating circumstance and, on the other hand, where numerous mitigating circumstances may be present but opposed to one aggravating circumstance so outrageous as to justify the death penalty." Accord Carr v. State, 640 So.2d 1064, 1074-75 (Ala.Crim.App.1994); Magwood v. State, 548 So.2d 512, 514 (Ala. *540 Crim.App.), aff'd, 548 So.2d 516 (Ala.1988), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989).
We find this to be the case here. The sentencing order indicates that the trial court considered the mitigating evidence Lewis offered but determined that mitigation was outweighed by the aggravating circumstances and sentenced Lewis to death. Its decision is supported by the record, and we agree with the trial court's findings.
Section 13A-5-53(b)(2), Ala.Code 1975, requires us to independently weigh the aggravating and mitigating circumstances to determine the propriety of Lewis's death sentence. After independently weighing the aggravating circumstances and the mitigating circumstances, we find that the death sentence is appropriate in this case.
As required by § 13A-5-53(b)(3), Ala. Code 1975, we must determine whether Lewis's death sentence was disproportionate or excessive when compared to the penalties imposed in similar cases. Lewis killed Tim Kaye during a kidnapping in the first degree. Similar crimes have been punished by death on numerous occasions. See, e.g., Ex parte Perkins, 851 So.2d 453 (Ala.2002), cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 55 (2003); Ex parte Hagood, 777 So.2d 214 (Ala.1999); Ziegler v. State, 886 So.2d 127 (Ala.Crim.App. 2003), cert. denied, 886 So.2d 127 (Ala.), cert. denied, 543 U.S. 863, 125 S.Ct. 194, 160 L.Ed.2d 106 (2004); Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000); Boyd v. State, 715 So.2d 825 (Ala.Crim.App.1997), aff'd, 715 So.2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998); Dallas v. State, 711 So.2d 1101 (Ala.Crim. App.1997), aff'd, 711 So.2d 1114 (Ala.), cert. denied, 525 U.S. 860, 119 S.Ct. 145, 142 L.Ed.2d 118 (1998); Trawick v. State, 698 So.2d 151 (Ala.Crim.App.1995), aff'd, 698 So.2d 162 (Ala.), cert. denied, 522 U.S. 1000, 118 S.Ct. 568, 139 L.Ed.2d 408 (1997); Jenkins v. State, 627 So.2d 1034 (Ala.Crim.App.1992), aff'd, 627 So.2d 1054 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994).
Based on the foregoing, Lewis's conviction and sentence of death for the murder of Timothy John Kaye are due to be, and are hereby, affirmed.
AFFIRMED.
BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ., concur.
NOTES
[1] Thus, of the 18 African-American jurors, two were struck for cause and five remained in the pool of potential jurors. It is unclear what happened to the remaining 11 African-American jurors on the jury list and initial strike list.
[1] Hargedon testimony as to the exact time varied, mentioning just after midnight at one point, but later stating that they did not leave the Drifters' Club until 2:00 a.m. or later.
[2] On September 20, 2002, this Court affirmed Free's conviction and sentence, by an unpublished memorandum. Free v. State (No. CR-01-1158), 868 So.2d 484 (Ala.Crim.App.2002) (table).
[3] Thus, of the 18 African-American jurors, two were struck for cause and five remained in the pool of potential jurors. It is unclear what happened to the remaining 11 African-American jurors on the jury list and initial strike list.
[4] The record also indicates that this juror had convictions for minor traffic offenses as well, but the stated reason was the misdemeanor conviction for writing a bad check.
[5] See, e.g., McCray v. State, 738 So.2d 911, 914 (Ala.Crim.App.1998); Ashley v. State, 651 So.2d 1096, 1101 (Ala.Crim.App.1994); Andrews v. State, 624 So.2d 1095, 1099 (Ala. Crim.App.1993); Williams v. State, 620 So.2d 82, 86 (Ala.Crim.App.1993); Roger v. State, 593 So.2d 141, 142 (Ala.Crim.App.1991).
[6] This juror was listed as number 34 on State's Exhibit 3, the jury-information sheet (Supp. C. 31); however, she was listed as number 32 on the master jury list (Supp. C. 38) and the strike list (Supp. C. 35).
[7] We note that our decision in this case is distinguishable from the decisions in Hammond v. State, 776 So.2d 884, 892 (Ala.Crim. App.1998), cert. denied, 776 So.2d 895 (Ala. 2000), and Frazier v. State, 632 So.2d 1002, 1007 (Ala.Crim.App.1993), in which we held that Tomlin mandated reversal of a defendant's conviction when the prosecutor made a reference during trial to the fact that the defendant had previously been convicted of the same crime.
[8] The cases cited by Lewis in support of his claim are: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (admissibility of scientific expert testimony); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (admissibility of scientific expert testimony) Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (determining the admissibility/trustworthiness of a child witness's testimony); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (threshold determination regarding admissibility of confessions); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (threshold determination regarding admissibility of hearsay statement of unavailable witness); Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (recognizing that accomplices confessions inculpating a codefendant do not fall within a firmly rooted exception to the hearsay rule).
[9] The record indicates that the trial court later changed its ruling and admitted the toxicology report, but after reviewing our decision in Mayo v. City of Rainbow City, 642 So.2d 524 (Ala.Crim.App.1994), reversed its ruling and gave a curative instruction to the jury regarding the report. (R. 690, 704-05.)
[10] We note that Duncan's death sentence was subsequently set aside, based on the United States Supreme Court's holding in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), prohibiting the execution of individuals who were under 18 years of age at the time the capital offense was committed. See Duncan v. State, 925 So.2d 245 (Ala. Crim.App.2005).
[11] Here, the trial court advised the parties that it would review the requested jury instructions during counsel's closing arguments.
[12] Because Ring specifically applies the legal principles set out in Apprendi to death-penalty cases, we will couch our discussion of Lewis's claims in terms of what Ring requires, rather than Apprendi.
[13] See Part XXII of Lewis's brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585263/ | 815 F.Supp. 305 (1993)
Curtis GREEN, as Trustee for the Heirs of Dustin Green, Deceased,
v.
LAKE OF THE WOODS COUNTY, et al.
No. 4-92-CV-501.
United States District Court, D. Minnesota, Fourth Division.
February 16, 1993.
James R. Schwebel, Schwebel, Goetz & Sieben, Minneapolis, MN, for plaintiff.
Mark J. Condon, Chadwick Johnson & Condon, Minneapolis, MN, for Lake of the Woods County.
Blake Steven Sobolik, Robert K. Severson, Brink, Sobolik, Severson, Vroom & Malm Pa, Hallock, MN, for Emil Olson.
Dennis Leslie O'Toole, Lano, Nelson, O'Toole & Fecker, Grand Rapids, MN, for Donald Kofstad.
Kurt John Marben, Thief River Falls, MN, for Arnesens Rocky Point, Inc.
Andrea May Nelson, Burton D. Anderson & Assoc., Minneapolis, MN, for Lake Road Lodge Inc.
Romaine Ralph Powell, Powell, Lang & Schuppert, Bemidji, MN, for Vernon Horntvedt.
ORDER
ROSENBAUM, District Judge.
A tragic motor vehicle accident, resulting in the death of a minor child, has given rise to a question of federal jurisdiction. The child lived and died in Minnesota. All of the defendants are citizens of Minnesota. Plaintiff, the child's father, is a citizen of Illinois *306 who has been appointed trustee for the heirs of his son. The question presented is whether the father's Illinois citizenship provides diversity jurisdiction in this Court.
The defendants move to dismiss for lack of subject matter jurisdiction, pursuant Rule 12(b)(1), Federal Rules of Civil Procedure (Fed.R.Civ.P.). Plaintiff is opposed. The matter was briefed and argument was heard on October 23, 1992.
Background
On June 5, 1991, an automobile driven by Cheryl Green collided with a truck driven by Brian Curtis Olafson. The accident occurred at the intersection of County Road 17 and Township Road 241 in Lake of the Woods County, Minnesota. Dustin Green, the two-year-old son of Cheryl Green, was a passenger in the automobile driven by his mother. Dustin died as a result of the collision. Dustin was a resident and citizen of Minnesota at the time of his death. All defendants reside, are located, or have their principal place of business in Minnesota.
Plaintiff Curtis Green resided in Oklahoma at the time of the accident and has since move to Illinois. On June 20, 1990, Mr. Green was appointed by the Hennepin County District Court as trustee for decedent's next of kin, pursuant to Minnesota's Wrongful Death Act, Minn.Stat. § 573.02 (1992). On May 22, 1992, Mr. Green, as trustee, commenced this action in United States District Court on behalf of the heirs of Dustin Green. Plaintiff alleges diversity jurisdiction, pursuant to 28 U.S.C. § 1332.
Defendants move to dismiss for lack of subject matter jurisdiction. Defendants assert that the citizenship of Dustin Green, and not the citizenship of Curtis Green, controls the question of diversity. Defendants argue that Curtis Green's position as trustee under Minnesota's Wrongful Death Act falls within 28 U.S.C. § 1332(c)(2). Section 1332, as amended by the Judicial Improvements Act of 1988, provides that:
(c) For the purposes of this section ...
(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.
28 U.S.C. § 1332(c)(2). They argue that plaintiff is a "legal representative of the estate of a decedent" so that the decedent's Minnesota citizenship controls, and destroys any diversity of citizenship between the parties.
Plaintiff responds that under Minnesota law he is a "trustee of an express trust," within the meaning of Rule 17(a), Fed.R.Civ. P.[1] As such, plaintiff claims that he is the real party in interest and his Illinois citizenship controls in determining diversity jurisdiction. He further argues that a trustee of an express trust is not a "legal representative" within the contemplation of § 1332(c)(2).
This Court must decide whether the Illinois citizenship of the plaintiff, and his status as "the trustee of an express trust" under Minnesota's Wrongful Death Act, places him beyond the reach of 28 U.S.C. § 1332(c)(2). For the reasons set forth below, the Court finds that the plaintiff falls within § 1332(c)(2), and that diversity is lacking in this case. Accordingly, defendants' motion to dismiss is granted.
Analysis
In the absence of a federal question, diversity of citizenship can provide access to the federal courts. The Supreme Court has held that only "complete diversity" of citizenship between plaintiffs and defendants can satisfy this requirement. Carden v. Arkoma Assocs., 494 U.S. 185, 187, 110 S.Ct. 1015, 1016, 108 L.Ed.2d 157 (1991) (quoting Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)). Diversity jurisdiction may not be premised upon the citizenship of merely nominal or formal parties. Navarro Sav. Ass'n v. Lee, 446 U.S. *307 458, 460-61, 100 S.Ct. 1779, 1781-82, 64 L.Ed.2d 425 (1980). Jurisdiction must rest upon the citizenship of "real and substantial parties to the controversy." Id.
At the same time, Rule 17(a), Fed. R.Civ.P., provides that a trustee of an express trust is a real party in interest for procedural purposes. See id. at 462, 100 S.Ct. at 1782. Plaintiff's appointment as trustee under Minnesota's Wrongful Death Act qualifies him as a "trustee of an express trust" under Rule 17(a). Todd County, Minn. v. Loegering, 297 F.2d 470 (8th Cir. 1961). The fact that the plaintiff is the "trustee of an express trust," and therefore the "real party in interest" under Rule 17(a), does not, however, conclude the Court's inquiry.
The Court must consider whether the plaintiff may also be considered "the legal representative of the estate of a decedent," under § 1332(c)(2). A party may satisfy the requirements of Rule 17(a) and still be subject to the operation of § 1332(c)(2). "The two rules serve different purposes and need not produce identical outcomes in all cases." Navarro Savings Ass'n v. Lee, 446 U.S. 458, 462 n. 9, 100 S.Ct. 1779, 1783 n. 9, 64 L.Ed.2d 425 (1980).
The parties have not cited to any case law addressing the interplay between Rule 17(a) and § 1332(c)(2),[2] and the Court has found none.[3] The Court, therefore, looks to the language of the amendment and its legislative history to determine the scope of Congress's term "legal representative."
Congress amended § 1332 with the general purpose of limiting the federal courts' diversity jurisdiction.[4] Congress added § 1332(c)(2) to prevent the collusive appointment of out-of-state representatives to create diversity jurisdiction. 134 Cong.Rec. S16299 (1988) (statement of Sen. Heflin). To better understand the amendment, it is necessary to look briefly at the history of the anti-collusion statute, 28 U.S.C. § 1359.
Prior to the Judicial Improvement Act of 1988, the circuit courts of appeals addressed manufactured diversity by applying 28 U.S.C. § 1359. A split developed in the circuits as to the proper test to be applied.[5] The circuits utilized either the "motive/function" *308 test or the "substantial stake" test. The "motive/function" test asked whether "collusion exists when the fiduciary and the applicant for his appointment seek an artificial appointment for the purpose of creating diversity jurisdiction." Pallazola v. Rucker, 797 F.2d 1116, 1122 (1st Cir.1986) (citing McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied, sub nom Fritzinger v. Weist, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969)). This test suggested that motive for the appointment could not be ignored. Pallazola, 797 F.2d at 1122. This approach was criticized, however, because it required extensive fact-finding and because "it expel[led] from federal court litigants from different states who have a real, substantial controversy." Id. (citing Mullenix, Creative Manipulation of Federal Jurisdiction: Is There Diversity After Death?, 70 Cornell L.Rev. 1011, 1033-34 (1985)).
The alternative "substantial stake" test asked whether "the fiduciary sustains more than a nominal relationship to the litigation." Bishop v. Hendricks, 495 F.2d 289, 294 (4th Cir.1974), cert. denied, 419 U.S. 1056, 95 S.Ct. 639, 42 L.Ed.2d 653 (1974). This approach, in turn, was criticized because diversity could be established even though a fiduciary was appointed for the purpose of creating diversity. Pallazola, 797 F.2d at 1124. Further, diversity could be destroyed for lack of a substantial stake, even though the fiduciary was not appointed to create diversity. Id. In other words, the courts which applied the "substantial stake test" were criticized for ignoring the motive behind the appointment. Id. at 1125.
The American Law Institute (ALI) proposed to resolve the inter-circuit dispute in 1969. Their "per se" rule deemed the decedent's citizenship to be controlling. The ALI proposed that:
An executor, administrator, or any person representing the estate of a decedent or appointed pursuant to statute with authority to bring an action for wrongful death is deemed to be a citizen only of the same state as the decedent; and the representative of an infant or incompetent is given similar treatment. The purpose is to prevent either the creation or destruction of diversity jurisdiction by the appointment of a representative of different citizenship from that of the decedent or person represented.
American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts § 1301(b)(4), at 11 (1969), reprinted in Field, Jurisdiction of Federal Courts: A Summary of American Law Institute Proposals, 46 F.R.D. 141, 143 (1969) (emphasis added).
The Court determines that Congress adopted the ALI's approach as part of the 1988 amendments to the diversity statute. See David D. Siegel, Changes in Federal Jurisdiction and Practice Under the New Judicial Improvements and Access to Justice Act, 123 F.R.D. 399, 409 (1989). Section 1332(c)(2) merely substituted the single term "legal representative" for the ALI's enumerated fiduciaries. When considered in this historical context, it is clear that Congress chose the single term "legal representative" as a simple and encompassing term.[6]
Plaintiff urges a narrower interpretation, suggesting that this Court construe the term "legal representative" to exclude a trustee of an express trust. The Court finds such a narrow construction to be contrary the purpose of the 1988 amendments. To construe § 1332(c)(2) to include only "administrators" and "executors" but not "trustees" within the meaning of Minnesota's Wrongful *309 Death Act would lead to differing results, depending on the statutory term utilized in the state in which a district court sits. The name a given state legislature chooses for its "legal representative of the estate of a decedent" should not govern federal diversity jurisdiction.[7] If this were possible, the state legislatures would, perforce, be empowered to select or reject a name which would confer or deny access to the federal courts in an interstate wrongful death action.
The Court finds that plaintiff, as appointed trustee under Minnesota's Wrongful Death Act, is a "legal representative of the estate of a decedent" within the meaning of 28 U.S.C. § 1332(c)(2) and decedent's citizenship controls. Because the decedent was a citizen of Minnesota, and all defendants reside or have their principal place of business in Minnesota, this Court lacks diversity jurisdiction.
Accordingly, based on the files, records, and pleadings herein, and for the reasons stated above, IT IS ORDERED that:
Defendants' motion to dismiss is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] Rule 17(a), Fed.R.Civ.P., provides, in pertinent part, that:
Every action shall be prosecuted in the name of the real party in interest. An executor, ... trustee of an express trust, ... or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought....
[2] The plaintiff relies upon Todd County, Minn. v. Loegering, 297 F.2d 470 (8th Cir.1961). Loegering involved a resident decedent and a non-resident trustee appointed under Minnesota's Wrongful Death Act. The trustee initiated suit in federal court on behalf of the heirs. The court held that the trustee's citizenship was determinative for purposes of diversity, stating that her appointment under the act made plaintiff "a `trustee of an express trust ...' and as such, empowered to bring action in her own name, without joining with her the party or parties for whose benefit the action was brought." Id., 297 F.2d at 472. Loegering is certainly of interest, but because it was decided prior to the enactment of 28 U.S.C. § 1332(c)(2), the Court does not consider it controlling.
The Court also notes that even in Loegering the legal representative's title was ultimately determined to be irrelevant. In deferring to the trial court, the Eighth Circuit concluded that the only reason Minnesota adopted the term "trustee" in 1951 was to alleviate the need to go before the probate court to have an administrator or executor appointed. Loegering, 297 F.2d at 473 (quoting Minnehaha County, S.D. v. Kelley, 150 F.2d 356 (8th Cir.1945)). The trustee, then, was no different from an executor or administrator terms which fit within the narrowest readings of § 1332(c)(2). See infra.
[3] In Northern Trust Co. v. Bunge Corp., 899 F.2d 591 (7th Cir.1990), the Seventh Circuit provided a brief overview of the amended § 1332, and the "exceptions" to the statutory requirements, including Rule 17(a). Id. at 594. The Court, however, was not directly presented with the interplay between Rule 17(a) and § 1332(c)(2) because the plaintiff in Northern was not proceeding as a trustee. Id. at 595 n. 3.
[4] Along with adding § 1332(c)(2), the Judicial Improvements Act of 1988 increased the amount in controversy required for diversity jurisdiction from $10,000 to $50,000. By this enactment, the Judiciary Committee rejected the proposal to abolish all diversity jurisdiction, which had come from the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. But the House Report indicates that the Committee believed the increase in amount of controversy would cut the federal courts' caseload by up to forty percent. H.R.Rep. No. 100-889, 100th Cong., 2d Sess. 45 (1988), reprinted in 1988 USCCAN 5982, 6006.
[5] For an extensive survey of this split, see Pallazola v. Rucker, 797 F.2d 1116 (1st Cir.1986).
[6] This is also consistent with the definition of "legal representative" found in 20 C.F.R. § 404.503 which states:
Definition of legal representative. The term "legal representative," for the purpose of qualifying to receive an underpayment, generally means the administrator or executor of the estate of the deceased individual. However, it may also include an individual, institution or organization acting on behalf of an unadministered estate.... The following persons may qualify as a legal representative ...
(4) A person who has the authority, under the applicable law, to collect the assets for the estate of the deceased individual.
[7] For example, Georgia's statute empowers the "administrator or executor" to bring the wrongful death action on behalf of the decedent's next of kin. Ga.Code Ann. § 51-4-4 (1982). Under plaintiff's narrow construction of § 1332(c)(2), a decedent's citizenship would destroy diversity when Georgia law is applied, while diversity jurisdiction would be available under Minnesota law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585295/ | 508 So.2d 1265 (1987)
Ernest Jack TAYLOR, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. BN-286.
District Court of Appeal of Florida, First District.
May 27, 1987.
Rehearing Denied July 16, 1987.
*1266 Ronald W. Johnson, of Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, for appellant.
Jim Smith, Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., for appellee.
BARFIELD, Judge.
Ernest Jack Taylor, Jr. appeals his conviction for tampering with a witness. He asserts ten erroneous judicial acts, six of which we find to be without merit. The remaining four address two discrete issues warranting discussion and reversal for a new trial.
Part of the state's evidence consisted of tape recorded conversations involving the defendant. The original tapes were admitted into evidence. During the trial, over defendant's objection, the complete transcripts of the taped conversations were displayed by means of an overhead projector and screen, while the jury listened to the tape recordings. The state's authority for such a tactic is Golden v. State, 429 So.2d 45 (Fla. 1st DCA 1983).
This is becoming a familiar theme based upon an improper application of Golden, which partly derives from the absence of a full accounting in the Golden opinion of what appears in the record. Unfortunately, that opinion omits that part of the record wherein the trial judge stopped the use of the overhead projection shortly after its commencement because it was readily apparent that the projection was becoming the focal point of the jurors' attention. All Golden holds is that a momentary visual display of transcript fragments did not overemphasize the evidence otherwise to be understood in the context of the recorded conversation. The Golden decision must be limited to its facts and not be used as authority to present to the jury a transcript of a tape recording by any means when the original tape is in evidence, absent the consent of the defendant.
I condemn this practice and suggest it not be used upon retrial of this case.
The charge of tampering with a witness arose during pretrial investigation of charges against appellant for battery and indecent exposure of sexual organs. Appellant was tried and acquitted of these charges. In the trial now under review, the state was permitted, over objections, to place in evidence a copy of the information charging battery and indecent exposure, and the court allowed a deputy sheriff to testify that appellant had been arrested for those charges. In addition to the introduction of the inflammatory evidence, the trial court permitted the state, over objection, to highlight the former charges in opening statement and closing argument. The court prohibited appellant from introducing evidence that he had been acquitted of the charges.
The appellant contends that the introduction of this evidence within the context of this case was for the purpose of *1267 character assassination, was inflammatory and was not relevant to any element of the crime of offering pecuniary reward to a witness. We agree and reverse for a new trial. The fact that appellant was charged with a crime is an essential element of the state's case. Fischer v. State, 429 So.2d 1309 (Fla. 1st DCA 1983). However, the nature of the charges is not essential in this case. Machara v. State, 272 So.2d 870 (Fla. 4th DCA), cert. den., 277 So.2d 535 (1973).
Accusations of sexually deviant behavior are inherently denigrating. Sias v. State, 416 So.2d 1213 (Fla. 3d DCA), rev. den., 424 So.2d 763 (1982). The charge of such conduct, unanswered, cannot be said to have produced no harmful or prejudicial effect on the jury toward appellant. In the prosecution of cases such as this one, the evidentiary relevance of the specific criminal charges must be weighed against their prejudicial effect. While the general fact that appellant was charged with a crime is relevant to appellant's motive in tampering with a witness, any relevance of the specific criminal allegations of sexually deviant behavior is far outweighed by its prejudical effect. It would be a closer question on whether the trial judge abused his discretion in allowing the evidence if he had permitted the appellant to inform the jury of his acquittal. We would view that ruling as within the discretion of the trial judge. The propriety of carefully orchestrating and controlling the context in which evidence of prior misconduct is admitted is discussed in Jackson v. State, 498 So.2d 406, 410 (Fla. 1986).
The conviction is REVERSED and the case REMANDED for a new trial.
SMITH, J., concurs in part, and dissents in part, with written opinion.
JOANOS, J., dissents with written opinion.
SMITH, Judge, concurring in part, and dissenting in part.
I concur in reversal and in that part of Judge Barfield's opinion dealing with the error in the trial court's refusal to allow the defendant to present evidence of his acquittal on the collateral charges of battery and indecent exposure.
As to the use of the overhead projector and screen to augment the jury's consideration of a tape recording, I would not agree with Judge Barfield's sweeping condemnation of the use of a transcript of a tape recording in evidence absent consent of the defendant. As to the manner in which a transcript is displayed to the jury, I agree with Judge Joanos' view that this court's decision in Golden speaks contrary to the views expressed by Judge Barfield. We are not at liberty, it seems to me, to in effect nullify the express holdings of a prior decision based upon our own assessment of how the controlling facts of record should have been viewed by a prior panel. I think the issue is whether reversible error has been shown. I believe Golden contains ample warning as to safeguards and limitations which must be observed in the use of visually displayed evidence, and I would not reverse on this issue absent a showing of abuse of discretion and prejudice sufficient to impair the fairness of the trial.
JOANOS, Judge, dissenting.
I respectfully dissent. In Golden v. State, 429 So.2d 45, 50 (Fla. 1st DCA 1983), this Court held that the visual display of a tape recording transcript while the jury listens to the recording, did not improperly displace or augment the primary evidentiary material, the tape recording. That opinion approved the visual display as an aid-to-understanding so long as the tape accurately recorded the conversation and the transcript accurately reproduced the tape. While the case before us deals with complete transcripts rather than portions utilized in the Golden case, I would nevertheless affirm so long as the displayed transcript is accurate.
I would also affirm the trial judge's allowance of evidence of charges facing appellant at the time he allegedly committed the acts for which he was tried on the charge of tampering with a witness. That evidence was material for the jury to know the nature of the offense and the overall *1268 circumstances involved in the tampering case. Cf. Fischer v. State, 429 So.2d 1309, 1310 (Fla. 1st DCA 1983). Further, I would affirm the trial judge's determination that the outcome of those earlier charges is not relevant in the tampering case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585298/ | STATE OF LOUISIANA
v.
KARL CHRISTOPHER FORTENBERRY.
No. 2009 KA 0504.
Court of Appeals of Louisiana, First Circuit.
October 23, 2009.
Not Designated for Publication
WALTER P. REED, District Attorney, and KATHRYN W. LANDRY, Special Appeals Counsel, Attorneys for Appellee State of Louisiana
KATHERINE M. FRANKS, Louisiana Appellate Project, Attorney for Defendant/Appellant Karl Christopher Fortenberry.
Before: PARRO, KUHN, and McDONALD, JJ.
McDONALD, J.
Defendant, Karl C. Fortenberry, was charged by bill of information with possession of cocaine, a violation of La. R.S. 40:967(C). Defendant pled not guilty and proceeded to trial before a jury. The jury determined defendant was guilty.[1] The trial court sentenced defendant to a term of five years at hard labor. The State instituted habitual offender proceedings seeking to have defendant adjudicated as a habitual felony offender. Following a hearing, the trial court adjudicated defendant as a fourth or subsequent felony offender. The trial court vacated the previously imposed sentence and resentenced defendant to a term of twenty-five years at hard labor.
Defendant appeals, citing the following as error:
1. Defendant's Fifth Amendment right against self-incrimination was violated when Trooper McClelland, after twice macing and more times striking the mentally challenged and intoxicated man, wrote down inculpatory statements that defendant neither signed nor initialed.
2. The testimony introduced at trial conflicts with the physical evidence and should have left a reasonable trier of fact with a reasonable doubt. Defendant was denied due process when the jury failed to act as a reasonable trier of fact. The jury verdict for possession of cocaine was based on insufficient credible evidence. The substance analyzed did not match the physical description of the substance seized, leaving no evidence that the trooper seized a controlled substance. The chain of evidence offered by the prosecutor did not account for the discrepancy. It was not only error to admit the exhibit, its use to obtain a conviction offends due process.
3. Trial counsel was ineffective in failing to object to the introduction of evidence that was physically inconsistent with the physical description of the evidence allegedly gathered in the case. Counsel's failure to object contributed to the conviction of Mr. Fortenberry for possession of three rocks that do not appear to have been the subject of any chemical analysis.
4. Defendant was erroneously found to be a fifth felony offender and sentenced based on such finding.
We affirm defendant's conviction, amend his habitual offender adjudication to reflect he is a fourth felony habitual offender, and affirm his habitual offender sentence.
FACTS
At approximately 2:00 a.m., on January 28, 2006, Louisiana State Police Trooper Chris McClelland was on routine patrol on U.S. Highway 190 near the area of Big Branch, east of Mandeville. While headed eastbound on Highway 190, Trooper McClelland was following a white Chevrolet van, which he observed swerving over the right fog line and the left lane divider lines. Trooper McClelland also noticed there was no visible license plate on the vehicle. Trooper McClelland initiated a traffic stop and the van quickly turned on Lemieux Street and stopped.
Defendant, who was driving the vehicle, exited the van and quickly walked toward the police unit. Trooper McClelland advised defendant of the reason for the stop. Defendant explained that he had picked up a friend, who was too impaired to drive, at a bar in Mandeville and was taking her home. Trooper McClelland noticed that defendant appeared nervous and fidgety, with a light odor of alcohol on his breath and slurred speech.
Trooper McClelland asked defendant for his name, and defendant initially identified himself as Karl Magee. After Trooper McClelland was unable to pull up any records on Karl Magee on his unit's computer, Trooper McClelland again asked defendant to provide his name. This time defendant identified himself as Karl Wilson and provided a date of birth of February 3, 1969. After Trooper McClelland was unable to pull any records for this name, he asked defendant for a social security number. Defendant provided the number XXX-XX-XXXX. Trooper McClelland noticed that the entire time defendant stood near the front of his unit, he was nervous and fidgety.
As Trooper McClelland keyed in the social security number, defendant began to flee. Trooper McClelland followed defendant in his unit until defendant jumped a fence. The trooper exited his vehicle and pursued defendant on foot. While fleeing from Trooper McClelland, defendant refused the trooper's repeated orders to stop and show his hands. After defendant ran into a fenced yard, Trooper McClelland sprayed defendant with pepper spray in an effort to subdue him. Despite being sprayed, defendant still refused to comply with the trooper's orders to show his hands and instead shoved his hands into his waistline. Trooper McClelland kicked defendant, who still refused to show his hands. Trooper McClelland was able to grab defendant's left hand and kneeled on defendant's back to place it in handcuffs. Defendant again forced his hands back to his waistline, and the trooper employed edged fist strikes to defendant's head in an attempt to subdue him. Defendant still ignored the trooper's orders to show his hands. Finally, the trooper was able to handcuff defendant's hands.
Trooper McClelland walked defendant back to his unit, called an ambulance, and also sprayed defendant's face with water to clear the pepper spray. As defendant was seated on the ground near Trooper McClelland's unit, the trooper noticed a bulge in defendant's sock. Trooper McClelland removed the bulge, which was balled up toilet paper containing three off-white rocks of suspected crack cocaine. Trooper McClelland placed the rocks and tissue in an evidence envelope and later placed the envelope in an evidence drop. At trial, Trooper McClelland identified State Exhibit 1 as the evidence he seized from defendant.
An ambulance subsequently arrived on the scene; however, defendant refused treatment. Because defendant had a cut on his head, Trooper McClelland transported him to St. Tammany Parish Hospital where defendant received stitches to close the wound. While at the hospital, at approximately 4:00 a.m., Trooper McClelland advised defendant of his Miranda rights. According to State Exhibit 2, in the questionnaire completed by Trooper McClelland, defendant indicated that he had consumed a pint of gin at his home prior to the traffic stop. In response to the questions from Trooper McClelland, defendant also admitted using cocaine, heroin, and marijuana in the twenty-four hours prior to being stopped. Although defendant answered the trooper's questions, he refused to sign or initial the questionnaire and Trooper McClelland wrote down defendant's responses.
Bridget Mack, a forensic scientist employed by the Louisiana State Police Crime Lab, was accepted by the trial court as an expert in narcotics identification. Ms. Mack testified that she received State Exhibit 1 and performed tests on its contents. According to the results of these tests, the evidence contained cocaine. Ms. Mack also testified that the evidence was kept in the proper chain of custody. Defendant did not testify.
FIRST ASSIGNMENT OF ERROR
In defendant's first assignment of error, he contends that his Fifth Amendment right against self-incrimination was violated when Trooper McClelland, after twice administering mace and striking several times the mentally challenged and intoxicated man, wrote down inculpatory statements that defendant neither signed nor initialed.
The record in this case reflects that the defendant filed a motion to suppress his statements to the police in connection with his arrest. Following a hearing, the trial court denied the motion. Defendant asserts that because he had been struck in the head multiple times, administered pepper spray twice, and did not sign or initial the waiver of rights form, the statements obtained from him were in violation of his right against self-incrimination.
Before the State can introduce any inculpatory statement made in police custody, it bears the heavy burden of establishing that the defendant received a Miranda warning and that the statement was freely and voluntarily made, and not the product of fear, duress, intimidation, menace, threats, inducements, or promises. See La. R.S. 15:451; La. C.Cr.P. art. 703(D); State v. Blank, XXXX-XXXX, p. 9 (La. 4/11/07), 955 So.2d 90, 103, cert. denied, ___ U.S. ___, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). As a matter of federal constitutional law, any confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. State v. Beaner, 42,532, p. 14 (La. App. 2 Cir. 12/5/07), 974 So.2d 667, 676, writ denied, XXXX-XXXX (La. 5/30/08), 983 So.2d 896. At a suppression hearing, the State bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. Id. at 676.
The admissibility of a confession is a question for the trial court. A trial court's factual findings following a free and voluntary hearing are entitled to great weight and will not be overturned on appeal unless not supported by the evidence. Id. at 676. Great weight is placed upon the trial court's factual determinations because of its opportunity to observe witnesses and assess credibility. Testimony of the interviewing police officers alone may be sufficient to prove that the statement was given freely and voluntarily. Beaner, 42,532 at p. 15, 974 So.2d at 676.
It is not required that the police have either a signed waiver of rights form or another officer substantiate that such rights were given to the defendant. The State need only prove by the evidence that defendant was given the Miranda rights. State v. Odds, 448 So.2d 868, 870 (La. App. 1st Cir. 1984), writ denied, 477 So.2d 701 (La. 1985).
Defendant further argues that the State failed to prove that he understood those rights. This argument is based on defendant's claims that he is mentally challenged, was intoxicated at the time he was interviewed, and had been sprayed with pepper spray and struck in the head multiple times.
With regard to the relationship between diminished mental or intellectual capacity and involuntariness, the Louisiana Supreme Court has noted that such a condition does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Benoit, 440 So.2d 129, 131 (La. 1983). The critical factors are whether or not the defendant was able to understand the rights explained to him and whether or not he voluntarily gave a statement. State v. Young, 576 So.2d 1048, 1053 (La. App. 1st Cir.), writ denied, 584 So.2d 679 (La. 1991).
The State may rely on the presumption of sanity provided in La. R.S. 15:432, leaving to the defendant the initial burden of proving the existence of a mental abnormality which, under the circumstances, may have destroyed the voluntary nature of his confession. See State v. Waymire, 504 So.2d 953, 958 (La. App. 1st Cir. 1987). Because a defendant is presumed competent, he has the burden of proving a mental defect such that he was unable to understand his Miranda rights and, therefore, incompetent to waive them. State v. Ondek, 584 So.2d 282, 292-93 (La. App. 1st Cir.), writ denied, 586 So.2d 539 (La. 1991). Once such a mental defect is established, the State bears the ultimate burden of proving that the defendant's mental defect did not preclude him from giving a voluntary and free confession with a knowledgeable and intelligent waiver of his rights. See State v. Istre, 407 So.2d 1183, 1186 (La. 1981); State v. Young, 576 So.2d at 1053-54. However, if the defendant fails to prove the existence of a mental illness or defect, or fails to prove that such a disorder prevented his confession from being voluntary, while the State is not required to negate the defendant's mental abnormality, it still must in all other respects prove beyond a reasonable doubt that the confession was voluntary. State v. Lamark, 584 So.2d 686, 692 (La. App. 1st Cir.), writ denied, 586 So.2d 566 (La. 1991).
When the free and voluntary nature of a confession is challenged on the ground that the defendant was intoxicated at the time of the confession, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate the defendant's comprehension and to render him unaware of the consequences of what he is saying. Whether or not intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact, and the trial court's conclusion on this issue will not be disturbed unless unsupported by the evidence. State v. Latiolais, 563 So.2d 469, 472 (La. App. 1 st Cir. 1990).
The record in this matter indicates that defendant immediately attempted to create confusion by providing Trooper McClelland with not one, but two false names during the initial stage of this encounter. When Trooper McClelland was checking the second false name and social security number in his unit, defendant seized that opportunity to flee the scene. Trooper McClelland administered Miranda warnings to defendant immediately after he had been subdued and handcuffed. However, the interview wherein defendant provided the statements at issue did not occur until over two hours after the initial stop, following defendant's transportation to St. Tammany Parish Hospital for treatment.
According to Trooper McClelland, he again advised defendant of his Miranda rights at 4:00 a.m. At this point, defendant indicated that he understood the rights, but he refused to sign or initial the form. According to Trooper McClelland, defendant appeared to understand his rights and indicated that he wanted to cooperate in any way he could and was apologetic for his earlier actions of fleeing and resisting. Trooper McClelland testified that defendant indicated a willingness to answer the questions and his statements appeared free and voluntary. Trooper McClelland testified that he never coerced or promised defendant anything in an attempt to induce defendant into answering his questions. Finally, the defendant produced no evidence that he has such a diminished mental capacity that he is incapable of understanding or knowingly and intelligently waiving his rights.
Based on our review of the record, and giving great weight to the trier of fact's credibility determination, we conclude that the trial court's factual findings that defendant was advised of his Miranda rights and knowingly waived those rights in voluntarily answering Trooper McClelland's questions are supported by the evidence. Accordingly, the trial court's denial of defendant's motion to suppress statements was without error. This assignment of error is without merit.[2]
SECOND ASSIGNMENT OF ERROR
In his second assignment of error, defendant contends that the evidence is insufficient to support his conviction. Specifically, defendant argues that the substance analyzed did not match the physical description of the substance seized.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. C.Cr.P. art. 821(B); State v. Wright, 98-0601, p. 2 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 and XXXX-XXXX (La. 11/17/00), 773 So.2d 732.
With certain exceptions inapplicable here, it is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in La. R.S. 40:964, Schedule II. La. R.S. 40:967(C). Cocaine is a controlled dangerous substance classified in Schedule II. La. R.S. 40:964, Schedule 11(A)(4).
In the present case, the State presented testimony from Trooper McClelland that following his arrest of defendant, he seized three off-white rocks wrapped in toilet paper from defendant's sock. Subsequent testing on this substance reflected the presence of cocaine.
Defendant argues that the evidence failed to establish that the substance that Ms. Mack tested was consistent with what Trooper McClelland seized. This argument is based on the description of the evidence contained in Ms. Mack's report, wherein she described the evidence as "One (1) piece of tissue paper containing a rock-like substance."
We note that during the trial of this matter, both Trooper McClelland and Ms. Mack identified the contents of State Exhibit 1 as the evidence that was seized and tested in this matter. The record reflects that at no time during trial did defendant lodge any type of objection challenging whether the evidence was consistent. Further, we note that defense counsel elected not to cross-examine Ms. Mack at all.
Under La. C.Cr.P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. The contemporaneous objection rule has two purposes: 1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem, and 2) to prevent a defendant from gambling for a favorable verdict and then resorting to an appeal on errors that might easily have been corrected by an objection. Thus, the defendant is precluded from raising the chain of custody issue on appeal. See La. C.E. art. 103(A)(1); La. C.Cr.P. art. 841.
Moreover, we note that to properly identify evidence at trial, the identification can be visual or it can be by chain of custody of the object. State v. Francis, 597 So.2d 55, 59-60 (La. App. 1st Cir. 1992); see also La. C.E. art. 901(A). Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. Francis, 597 So.2d at 60. A determination of the weight of the evidence is a question of fact, and in a criminal case such a determination is not subject to appellate review. See La. Const. art. V, § 10(B); State v. Korman, 439 So.2d 1099, 1101 (La. App. 1st Cir. 1983).
In the present case, we note that both State witnesses visually identified the evidence as the substance that was involved in the incident at issue. We further note that defense counsel's argument attempts to create a discrepancy through semantic confusion. Although the police officer described the evidence as three rocks of suspected crack cocaine, while the crime lab report identified the evidence as a rock-like substance, such descriptions do not equate to a conclusion of different pieces of evidence.
After a thorough review of the record, we are convinced that the evidence presented in this case, viewed in the light most favorable to the State, proved beyond a reasonable doubt all of the elements of possession of cocaine. The verdict rendered against the defendant indicates that the jury accepted the testimony of the State's witnesses. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. See State v. Johnson, 99-0385, p. 9 (La. App. 1st Cir. 11/5/99), 745 So.2d 217, 223, writ denied, XXXX-XXXX (La. 11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Glynn, 94-0332, p. 32 (La. App. 1st Cir. 4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La. 10/6/95), 661 So.2d 464.
This assignment of error is without merit.
THIRD ASSIGNMENT OF ERROR
In defendant's third assignment of error, he contends that his trial counsel was ineffective in failing to object to the introduction of evidence that was physically inconsistent with the description of the evidence gathered in the case. A claim of ineffective assistance of counsel is ordinarily raised in an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, where evidence of the alleged error is contained in the record, and the issue is raised by assignment of error on appeal, we may address the issue in the interest of judicial economy. State v. Felder, 2000-2887, p. 10 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369, writ denied, XXXX-XXXX (La. 10/25/02), 827 So.2d 1173. Accordingly, we will address the defendant's claim of ineffective assistance of counsel.
Effective counsel has been defined to mean "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." U.S. v. Fruge, 495 F.2d 557, 558 (5th Cir. 1974) (per curiam); see also U.S. v. Johnson, 615 F.2d 1125, 1127 (5th Cir. 1980) (per curiam). Whether or not the defendant's counsel's assistance was so defective as to require reversal of his sentence is subject to a two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance was deficient. Second, the defendant must show that this deficiency prejudiced the outcome of the trial. A failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La. App. 1st Cir.), writ denied, 476 So.2d 350 (La. 1985).
Defendant's argument is based entirely on his contention that the description of the evidence seized by Trooper McClelland was inconsistent with the description of the evidence received and tested by Ms. Mack, and that trial counsel's failure to object to this discrepancy contributed to his guilty verdict.
We disagree. Our review of the record indicates there was no discrepancy as to the description of the evidence seized and tested. Trooper McClelland's testimony indicated he seized three off-white rocks wrapped in tissue paper from defendant's sock following his arrest. Ms. Mack testified that she performed the testing on the contents of State Exhibit 1. In her report, she described the contents as "One (1) piece of tissue paper containing a rock-like substance." We note that both Trooper McClelland and Ms. Mack identified the contents of State Exhibit 1 as what was seized from defendant and tested. Both descriptions are consistent in that the substance was wrapped in tissue paper and was rock-like in appearance. Merely because Trooper McClelland described the evidence as three rocks, while Ms. Mack weighed the substance (.19 grams), does not equate to a discrepancy that would have created reasonable doubt. Accordingly, because we find no discrepancy in the descriptions, we cannot say trial counsel's failure to object to such was error that resulted in prejudice to defendant.
This assignment of error is without merit.
FOURTH ASSIGNMENT OF ERROR
In his fourth assignment of error, defendant claims that he was erroneously found to be a fifth felony offender. In support of this assignment of error, defendant notes that the date for his prior pleas in cases 89-CR-144302 and 90-C145311 were both made on December 5, 1990.
In defendant's multiple offender adjudication, the trial court stated, "[Defendant] is a fourth or subsequent felony offender, actually that four underlying felony offense convictions have been proven and that this instant offense will be his fifth felony conviction." The trial court then noted the sentencing range for this status was twenty years to life. The trial court subsequently sentenced defendant to a term of twenty-five years at hard labor.
Defendant correctly points out that La. R.S. 15:529.1(B) provides in pertinent part that, "Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section." Thus, defendant is correct in that the two convictions entered on December 5, 1990, can only count for one conviction in determining defendant's multiple offender status.
As defendant also notes, the applicable penalty provision would not change due to this error.[3] However, defendant maintains that we should vacate his habitual offender sentence and remand the matter for resentencing in light of the possibility that the trial court would impose a different sentence based on defendant's accurate status as a fourth felony habitual offender as opposed to a fifth felony habitual offender. We disagree. Defendant was exposed to the same penalty range despite whether he was a fourth or fifth felony habitual offender and we decline to vacate his sentence.
This assignment of error is without merit.
CONVICTION AFFIRMED, HABITUAL OFFENDER ADJUDICATION AMENDED TO REFLECT FOURTH FELONY HABITUAL OFFENDER, AND HABITUAL OFFENDER SENTENCE AFFIRMED.
NOTES
[1] Defendant was also charged under docket number 407,865 with driving while intoxicated (DWI) and resisting an officer. The State requested the DWI be severed. Defense counsel had no objection to the resisting an officer charge being heard contemporaneously, and no reference was made to the jury regarding this charge.
[2] We note defendant makes mention in his brief that his answers to the questionnaire were inadmissible as other crimes evidence. Other than this reference, defendant presents no argument in support of this contention. We note the record reflects the trial court gave a limiting instruction to the jury that they were to disregard any activity that could be considered criminal, other than the crime at issue.
[3] La. R.S. 15:529.1 (A)(1)(c)(i) provides, "The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life [.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918893/ | 106 B.R. 188 (1989)
In re James Edward STRATTON and Oleta Fay Stratton, Debtors.
Rosie K. KENNEDY and Laurence T. Kennedy, Plaintiffs,
v.
James E. STRATTON and Oleta F. Stratton, Defendants.
Bankruptcy No. 288-07732-B-7, Motion No. LCE-1, LCE-2 and JRR-1, Adv. No. 289-0123.
United States Bankruptcy Court, E.D. California.
September 28, 1989.
*189 John R. Roberts, Placerville, Cal., for debtors.
George D. Appelbaum, Legal Center for the Elderly, Placerville, Cal., for creditors Rosie K. and Laurence T. Kennedy.
MEMORANDUM OF DECISION
DAVID E. RUSSELL, Bankruptcy Judge.
The above-entitled motions were taken under submission following oral arguments on May 30, 1989. This court has since considered the moving papers and oral arguments of both parties as well as the relevant statutes and case law and has arrived at the determination that Rosie K. and Laurence T. Kennedy (hereinafter "Movants") are entitled only to the limited relief hereinafter set forth.
FACTS
The relevant procedural facts are not in dispute. James E. and Oleta F. Stratton (hereinafter "Debtors") filed a joint, voluntary chapter 7 petition in bankruptcy on November 21, 1988. The first meeting of creditors was subsequently set for January 11, 1989. Notice of that meeting was properly sent to all creditors including Movants and their attorney of record. The notice also stated that the last day for filing objections to the Debtors' claim of exemptions would be 30 days after the conclusion of the first meeting of creditors and that the last day for filing a complaint to determine the dischargeability of any debt pursuant to 11 U.S.C. § 523(c) would be March 13, 1989.
Movants filed two written requests with the court to extend time. Both were entitled "Ex Parte Motion for Order Extending Time to File Objections to Debtors' Claim of Exemptions." While copies of both motions were served on Debtors' counsel, no hearings were requested. Both of the proposed orders, which stated that the motion *190 supporting them were brought pursuant to Bankruptcy Rule (B.R.) 4003, were signed by the court without a hearing. The first order was signed on January 24, 1989 and extended the Movants' time to file objections to the Debtors' claim of exemptions until March 13, 1989. The second order, signed on March 8, 1989, extended the time to file objections to the claimed exemptions until April 13, 1989. Neither order made mention of B.R. 4007 nor extended the time to file a complaint to determine the dischargeability of a debt. The only mention of extending the time to file such a complaint was in the prayer of the March 8 motion.
Movants filed their objections to the Debtors' exemptions and their complaint to determine dischargeability of a debt on April 11, 1989. On April 13, 1989 the Debtors were discharged by the court. The Debtors then filed their motion to dismiss the complaint as untimely filed and on May 2, 1989 the Movants filed their present motion to amend the order extending time, to deem their complaint as timely filed and to vacate the discharge.
DISCUSSION
A. COMPLAINT TO DETERMINE DISCHARGEABILITY.
Bankruptcy Rule (hereinafter "B.R.") 4007(c) prescribes the general rule that an adversary complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(c) shall be filed no later than 60 days from the first date set for the 11 U.S.C. § 341(a) meeting of creditors. The court may for cause, however, extend the 60 day deadline upon "motion of any party in interest, [and] after hearing on notice . . ." made within the original 60 day period. (B.R. 4007(c); emphasis added). The accepted rule in this circuit is that absent a properly filed motion within the prescribed 60 day period, a bankruptcy court has no discretion to enlarge the time for filing a complaint to determine dischargeability.[1] (8 Collier on Bankruptcy (15th Ed.1989) ¶ 4007.05[3] at p. 4007-12; In re Hill, 811 F.2d 484, 487 (9th Cir.1987); In re Neese, 87 B.R. 609, 612 (9th Cir.BAP, 1988); In re Rhodes, 71 B.R. 206, 207 (9th Cir.BAP, 1987)).
Unlike the creditors in the above cited cases, Movants did at least file a motion within the 60 day period. By serving it on opposing counsel, they also apparently complied with the service requirements of B.R. 9013,[2] since the Debtors are the only parties with any conceivable interest in the requests for extensions of time. Because a motion for an extension of time to file objections to a debtor's exemptions may be obtained ex parte under the provisions of B.R. 4003(b),[3] this court's orders of January 24 and March 8 extending the time to file objections to the Debtors' exemptions are proper, and, therefore, the Movant's objections, having been filed within the *191 time proscribed by the court, are timely. (Indeed, the Debtors have conceded the timeliness of the objections). Unfortunately for the Movants in respect to their complaint to determine dischargeability, the requirements for obtaining an extension of time under B.R. 4003(b) are much less stringent than the "after notice and a hearing" requirements mandated by B.R. 4007(c).
11 U.S.C. § 102, which is incorporated in the Rules by B.R. 9002, provides that the phrase "after notice and a hearing" or a similar phrase . . . means after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances . . ." [11 U.S.C. § 102(1)(A)]. An ex parte motion, which by definition requires no notice,[4] is clearly inappropriate, because the purpose of replacing Rule 409 with Rule 4007 in 1983 was to eliminate ex parte motions and applications for extensions of time to file dischargeability complaints.[5] However, but for the mislabeling ("Ex Parte") and omission (no reference to extending the time to file a complaint to determine dischargeability) in the caption on the March motion, Movants might plausibly argue that mailing a copy of the motion to extend time to Debtors' counsel was "appropriate notice in the particular circumstances", because the motion otherwise complied with B.R. 9013. Be that as it may, Movants have no plausible argument that there was an appropriate opportunity for a hearing extended to the Debtors. At a minimum, an opportunity for a hearing requires that there be sufficient time given after the motion is filed and served for an opposing party to request a hearing. In the present case the order was being signed when Debtors' counsel received the copy of the motion.
Finally, a motion to extend the time for filing a complaint to determine the dischargeability of a debt is a "contested matter" governed by B.R. 9014 as a showing of "cause" must be made before such an extension may be granted.[6] Therefore, the better procedure in the particular circumstances of this case would be to set the motion for hearing pursuant to the local rules of this court and, as required thereunder, serve a copy of the motion and the notice of hearing on Debtors' counsel.
Consequently, due to Movants' failure to timely file a proper motion which substantially conforms to the Bankruptcy Rules of Procedure and this court's local rules as described above, this court finds itself without discretion to retroactively extend the time in which the Movants could file their complaint to determine the dischargeability of a debt allegedly owed them by the Debtors. (In re Hill, supra, 811 F.2d 484). This court recognizes the harsh result of this decision, especially in light of the fact that it was Movants' counsel and not the *192 Movants themselves who negligently failed to secure a timely extension to file a complaint. This court finds itself bound, however, by what it considers to be the clear and unambiguous requirement of B.R. 4007(c) as interpreted in this Circuit: namely, to divest this court of all discretion to extend the time in which to file a dischargeability complaint in the absence of a properly filed motion within the given time period. This ruling furthers the avowed policy of promoting the Debtors' ability to effectuate their fresh start without having to speculate as to the status of their discharge.
B. OBJECTIONS TO EXEMPTIONS.
The Movants' objections were threefold and will be addressed in the order presented.
1) Movants object to Debtors' attempt to claim two lien free vehicles, a 1981 Honda Prelude with a value of $1,200 and a 1976 Chevrolet truck with a value of $1,000, as exempt pursuant to California Code of Civil Procedure ("C.C.P.") § 704.010.[7] Debtors, relying on In re Talmadge 832 F.2d 1120 (9th Cir.1987), argue that Debtors filing a joint petition are entitled to claim separate exemptions if they choose the so called "state exemptions" as opposed to the "alternative exemptions" (which track the federal exemption scheme of 11 U.S.C. § 522(d)) permitted to debtors filing bankruptcy in C.C.P. § 703.140. Debtors' reliance is misplaced.
The Talmadge court (at pg. 1123) relied on C.C.P. § 704.110 which, in effect, limits California married debtors to one set of exemptions regardless of which alternative they choose and whether or not they file bankruptcy. They may therefore keep the Honda and surrender the truck, or keep the truck and receive $200 for their equity in the Honda (See also, In re Nygard, 55 B.R. 623 (Bkrtcy.E.D.Cal.1985), aff'd 71 B.R. 779 (9th Cir.BAP 1987)).
2) Movants next object to the failure of Debtors to either account for or claim as exempt certain funds which existed in the Debtors' checking and savings accounts prior to and at the date the bankruptcy petition was filed.[8] The Debtors assert in their opposition to this motion that the cash in their bank account on the date the petition was filed represents payments from Ms. Stratton's disability insurance. The record reflects, furthermore, that the Debtors in fact amended their schedules on May 15, 1989 to claim as exempt a total of $5,883.10 of cash received by Ms. Stratton from disability insurance pursuant to C.C.P. § 704.130.[9] No one has objected to the amendment and the Debtors declare under penalty of perjury that the information in the amended schedule is true and correct. Nevertheless, a question still remains as to whether all of the money in the accounts were exempt both before and on the date the petition was filed, since the amounts claimed as exempt in the amendment do not account for all of the funds in the two accounts from October 31 until the petition was filed. Further investigation by the Chapter 7 trustee seems appropriate.
3) Finally, Movants object to the Debtors' claim of a $60,000.00 homestead exemption to the extent that it was made possible by the allegedly fraudulent use by the Debtors of Movants' money to improve their homestead. Although there is no question that the fraudulent use of another's money to improve a homestead is a valid ground for attacking a bankrupt's homestead exemption [See e.g., Stoner v. Walsh, 24 Cal.App.3d 938, 101 Cal.Rptr. 485 (1972) (Defrauded creditor entitled to execute against the homestead into which *193 the fraudulently borrowed money was put), citing Kemp v. Enemark, 194 Cal. 748, 230 P. 441 (1924)], Debtors correctly observe that no finding of fraud has been made.[10]
This court can perceive no reason why the parties should be prevented from litigating the issue of whether Movants are entitled to execute their claim against the Debtors' claimed homestead exemption on the ground that such exemption was created by fraudulent means. Although it is true that Movants' claim was technically discharged on April 13, 1989, the allegations made surrounding the transaction, if subsequently found to be true by this court or the El Dorado Superior Court, would easily lend themselves to the implementation of either a constructive trust[11] or an equitable lien[12] which would relate back to the time it was found to have been created by the conduct of the parties. (51 Am. Jur.2d Liens, § 23 at p. 161 (citing, inter alia, Hise v. Superior Court of Los Angeles, (1943) 21 Cal.2d 614, 134 P.2d 748). Such a lien or trust will necessarily survive discharge as does any other security interest in property notwithstanding the unenforceability of the underlying claim. (11 U.S.C. § 506(d)). Furthermore, in the event this or any other court of competent jurisdiction finds ultimately that the homestead consists in whole or in part of proceeds obtained by fraud, said exemption would not be exempt from execution under California law (supra), thereby rendering 11 U.S.C. § 522(f) ineffective for purposes of avoiding the equitable lien therein.
Consequently, although the Debtors' claim to a $60,000.00 exemption in their homestead will be affirmed due to the absence of any objection to the propriety of said exemption, it will remain subject to the right of Movants to execute on said homestead interest upon further order of this court.
DISPOSITION
The foregoing, where appropriate, shall constitute this court's findings of fact and conclusions of law. For the reasons set forth above, Movants' request for an extension to file their Complaint to Determine the Dischargeability of Debt must be denied, and the complaint dismissed pursuant to the Debtors' motion. There being no complaints on file which raise timely objections to either the dischargeability of the Debtors' debts or their discharge, this court's April 13, 1989 order granting the Debtors' discharge shall remain undisturbed. Debtors' counsel shall prepare appropriate orders consistent with the above.
Movants' objection to the Debtors' exemption claim to the two motor vehicles is sustained. The Chapter 7 trustee, Richard E. Bleau, shall take appropriate action in respect to the motor vehicles and investigate and determine whether any of the funds in the Debtors' checking and savings accounts are available for the benefit of the estate. Movants' objection to the Debtors' homestead exemption is deferred until a trial can be had on the issue of the Debtors' fraud. The parties may file appropriate motions to determine in which forum the trial shall take place. Movants' counsel shall prepare appropriate orders in respect to the court's disposition of the objections to the Debtors' claim of exemptions as set forth above.
NOTES
[1] The requirement that the motion to extend time be filed before the time expires and the rule divesting the courts of all discretion to grant extensions in the absence of such a timely filing were included in B.R. 4007(c) and B.R. 9006(b)(3) when they became effective in 1983. These new Rules substantially changed the requirements under former B.R. 409. (See e.g. In re Magouirk, 693 F.2d 948 (9th Cir.1982) (extension permitted upon showing of "excusable neglect")). By creating such stringent requirements "Congress intended to no longer subject the preeminent fresh start policy to the uncertainties of excusable neglect in failing to timely object to discharge of a claim." (In re Rhodes, 61 B.R. 626, 630 (9th Cir.BAP 1986) quoting In re Figueroa, 33 B.R. 298, 300 (Bankr.S.D.N.Y. 1983)).
[2] B.R. 9013 provides in pertinent part, as follows:
"A request for an order . . . shall be by written motion . . . The motion shall state with particularity the grounds therefor, and shall set forth the relief or order sought. Every written motion other than one which may be considered ex parte shall be served by the moving party on the trustee or debtor in possession and on those entities specified by these rules or, if service is not required or the entities to be served are not specified by these rules, the moving party shall serve the entities the court directs."
[3] B.R. 4003(b) provides, in pertinent part, as follows: ". . . any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) . . . unless, within such period, further time is granted by the court."
[4] See 9 Collier on Bankruptcy (15th Ed. 1089) ¶ 9013.05 at p. 9013-6.
[5] See generally Norton, Bankruptcy Law and Practice, Rules 4004, 4007; "The significance of the `Hearing on Notice' requirement is that ex parte applications for [filing dischargeability complaints] are no longer permitted as they were under former practice . . . Prior to the notice requirement it was not unusual for creditors to obtain ex parte applications for extensions of time to [file dischargeability complaints] . . . In ex parte action, the debtor would not know that the discharge was subject to dispute until after receiving a copy of the order granting the extension or being served with a copy of the complaint listing the objections . . . Litigation by surprise has been eliminated by subdivision [c]." (Rule 4004, supra, at 262-263, incorporated by reference at Rule 4007, p. 277, nt.6).
[6] B.R. 9014 provides in pertinent part as follows:
Rule 9014. Contested Matters.
"In a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought . . . The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004 . . ."
The 1983 Advisory Committee Notes to Rule 9014 define a "contested matter" as follows;
"Whenever there is an actual dispute, other than an adversary proceeding, before the bankruptcy court, the litigation to resolve that dispute is a contested matter . . . Even when an objection is not formally required, there may be a dispute." (Republished in Norton, Bankruptcy Law and Practice (1988-1989 Ed.) Bankruptcy Rules, at Rule 9014, p. 811).
[7] C.C.P. § 704.010 provides in pertinent part as follows:
(a) Any combination of the following is exempt in the amount of one thousand two hundred dollars ($1,200):
(1) The aggregate equity in motor vehicles.
[8] Movants have also requested an order that Debtors account for and turn over certain funds withdrawn from the account prior to the filing of bankruptcy.
[9] § 704.130 essentially provides that before payment, benefits from a disability or health insurance policy are exempt without making a claim, while after payment said benefits are exempt with certain nonapplicable exceptions. (Added by Stats.1982, c. 1364, § 2).
[10] The moving papers indicate that a pre-petition action for fraud was tried but never ultimately resolved by the El Dorado County Superior Court due to intervening bankruptcy action. (Kennedy v. Stratton, No. 50665).
[11] See generally, 60 Cal.Jur.3d, Trusts §§ 287-290; 76 Am.Jur.2d Trusts § 248 et seq.
[12] An "equitable lien" is a creature of equity and is the right the have a fund or specific property applied to payment of a particular debt and is based on the equitable doctrine of unjust enrichment. (U.S. v. Adamant Co., 197 F.2d 1 (9th Cir.1952) cert. den. Bullen v. Scoville 344 U.S. 903, 73 S.Ct. 283, 97 L.Ed. 698 (1952); See generally: 51 Am.Jur.2d Liens at §§ 23,34; Rest., Restitution §§ 1,161. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585322/ | 24 So.3d 1220 (2009)
Michael R. MURPHY, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-3527.
District Court of Appeal of Florida, Second District.
December 30, 2009.
Michael R. Murphy, pro se.
WALLACE, Judge.
Michael R. Murphy appeals the summary denial of his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We reverse and remand with instructions to grant an evidentiary hearing or to attach the relevant portions of the record that conclusively refute Mr. Murphy's claims.
I. THE PROCEDURAL HISTORY
On January 5, 1996, Mr. Murphy was convicted of first-degree murder and grand theft after a jury trial. We affirmed Mr. Murphy's convictions but reversed and remanded for resentencing. Murphy v. State, 694 So.2d 835, 835 (Fla. 2d DCA 1997). Mr. Murphy filed motions under Florida Rule of Criminal Procedure 3.850 on August 13, 1999, and December 15, 2005. We affirmed without opinion the denials of these two rule 3.850 motions. Murphy v. State, 937 So.2d 132 (Fla. 2d DCA 2006) (table decision); Murphy v. State, 864 So.2d 414 (Fla. 2d DCA 2003) (table decision). Mr. Murphy unsuccessfully sought federal habeas relief after our affirmance of the denial of his second rule 3.850 motion. Murphy v. Sec'y, Dep't of Corrs., 279 Fed.Appx. 877 (11th Cir.2008).
On May 27, 2008, Mr. Murphy filed a third rule 3.850 motion in which he *1221 claimed (1) that newly discovered scientific evidence demonstrated that the comparative bullet-lead analysis used by the State and described to the jury during his trial has been abandoned; (2) that he was denied his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the State failed to disclose favorable scientific evidence regarding comparative bullet-lead analysis; and (3) that he was denied his right to due process under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), when the State intentionally permitted false or misleading evidence based on comparative bullet-lead analysis to be presented to the jury and used to obtain his convictions. The postconviction court summarily denied all postconviction relief on June 9, 2008. Afterward, Mr. Murphy filed a motion for rehearing. The postconviction court denied the motion for rehearing. This appeal followed.
II. THE NEWLY DISCOVERED EVIDENCE CLAIM
In ground one of Mr. Murphy's motion, he alleged that the State had presented evidence from an FBI expert on comparative bullet-lead analysis that bullets found at the crime scene came from a box of bullets found in Mr. Murphy's possession. Mr. Murphy claims that on November 19, 2007, he discovered a news article[1] indicating that the scientific theory used to determine that the bullets from the crime scene came from the box in his possession was flawed and that FBI experts had been falsely testifying about the accuracy or reliability of comparative bullet-lead analysis. Mr. Murphy affirmatively alleged that this newly discovered evidence (1) was unknown at the time of trial, (2) could not have been discovered by the exercise of due diligence, and (3) would probably produce an acquittal on retrial. The postconviction court denied relief on this ground because the news article was not evidence. The postconviction court also found that any newly discovered evidence undermining comparative bullet-lead analysis would not probably produce an acquittal on retrial because the FBI expert's testimony was cumulative and another witness testified that Mr. Murphy admitted that he had committed the murder.
On appeal, Mr. Murphy argues that the postconviction court erred when it denied his motion because the news article was not evidence. He contends that his motion cited "studies, investigative reports, and *1222 potential witnesses" as sources of the newly discovered evidence. Mr. Murphy's motion cites a 1997 report by the Office of the Inspector General of the United States Department of Justice that Mr. Murphy claims criticized the FBI laboratory and the FBI agents working there. The motion also refers to a 2004 report by the National Research Council on comparative bullet-lead analysis that concluded that "`the statistical methods and its expert testimonies were flawed'" and that "`available data does not support any statement that a crime bullet came from a particular box of ammunition.'" In Moss v. State, 860 So.2d 1007, 1008 (Fla. 5th DCA 2003), the Fifth District reversed the summary denial of a rule 3.850 motion alleging newly discovered evidence based on the 1997 report cited by Mr. Murphy. And in Clemons v. State, 392 Md. 339, 896 A.2d 1059, 1078 (2006), the Court of Appeals of Maryland relied on such studies when it said that
a genuine controversy exists within the relevant scientific community about the reliability and validity of [comparative bullet-lead analysis]. Based on the criticism of the processes and assumptions underlying [comparative bullet-lead analysis], we determine that the trial court erred in admitting expert testimony based on [comparative bullet-lead analysis] because of the lack of general acceptance of the process in the scientific community.
Thus we agree that these reports constitute evidence.
Our conclusion that the reports explaining the problems with comparative bullet-lead analysis do constitute evidence leads us to the question of whether they could also qualify as "newly discovered evidence." Newly discovered evidence is evidence that was unknown at the time of trial and could not have been discovered by the use of due diligence. Rogers v. State, 957 So.2d 538, 552 (Fla.2007). In his motion, Mr. Murphy alleged that the problems with the testimony of the FBI's expert were unknown to him and his trial counsel until November 19, 2007; could not have been discovered by the exercise of due diligence; and would probably produce an acquittal on retrial. In this regard, Mr. Murphy alleged:
[T]he circumstances under which the evidence was discovered[ ] and the nature of the evidence clearly demonstrate[] that it was unknown to both the movant and defense counsel[] and could not have been discovered by the exercise of due diligence.
Because the postconviction court summarily denied Mr. Murphy's postconviction motion without granting him an evidentiary hearing, we must accept the factual allegations of the motion as true to the extent that they are not refuted by the record. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002) (citing Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000)). Accepting the motion's unrefuted factual allegations as true, we cannot agree with the postconviction court's conclusion that the reports on comparative bullet-lead analysis could not qualify as newly discovered evidence.[2]
*1223 The postconviction court also denied this claim because any newly discovered evidence about comparative bullet-lead analysis would probably not produce an acquittal on retrial. In particular, the postconviction court noted that the relevant FBI expert testimony was cumulative and that Mr. Murphy admitted to committing the murder. However, "[w]hile the postconviction court refuted [Mr. Murphy's] allegations by citing to the transcript and sometimes quoting from it, it did not attach the portions of the record it cited, as required by rule 3.850(d)." Livingston v. State, 16 So.3d 276, 277 (Fla. 2d DCA 2009). Accordingly, we reverse and remand for the postconviction court to attach the relevant portions of the record conclusively refuting this claim or to grant an evidentiary hearing on this ground.
III. THE BRADY CLAIM
Ground two asserted that the State failed to comply with Brady when it did not disclose a 1991 FBI study,[3] a 1994 federal investigation, and the 2004 National Research Council report that undermined the accuracy or reliability of comparative bullet-lead analysis. Mr. Murphy's motion alleges that the FBI experts used by the State, as members of the FBI Crime Lab, knew about the problems affecting the accuracy or reliability of comparative bullet-lead analysis as early as 1991 and were aware of misconduct by the FBI as early as 1994. Mr. Murphy cited United States v. Bender, 304 F.3d 161 (1st Cir.2002), to support his claim that "[k]nowledge of these findings must be imputed to the prosecutor, as the FBI Crime Lab was acting on behalf of the State."
The postconviction court denied this claim because Mr. Murphy did not suggest that "the prosecution in this case knew or should have known, at the time of trial or even after, that their evidence was deficient." On his motion for rehearing, Mr. Murphy pointed out that his rule 3.850 motion alleged that the FBI's knowledge of the favorable reports must be imputed to the State under Bender. In Bender, the court explained that "[t]o comply with Brady the individual prosecutor has a duty to find any evidence favorable to the defendant that was known to those acting on the government's behalf. Such persons include other members of the prosecuting team, including police investigators working for the prosecution." 304 F.3d at 164 (citation omitted). The prosecution had an obligation to disclose "favorable evidence known to others acting on the government's behalf in the case." Archer v. State, 934 So.2d 1187, 1203 (Fla.2006). "The postconviction court is in error to the extent that the court's order is read to mean that . . . the prosecutor's obligation was only to give to [Mr. Murphy] favorable *1224 evidence which was in the prosecutor's personal possession." Id.; see also Commonwealth v. Lykus, 451 Mass. 310, 885 N.E.2d 769, 781-83 (2008) (holding that the FBI's knowledge of favorable evidence could be imputed to state prosecutors). Thus we cannot agree with the postconviction court's conclusion that this claim is without merit.
Because Mr. Murphy's motion was facially sufficient, we reverse and remand for the postconviction court to attach the relevant portions of the record that conclusively refute Mr. Murphy's motion or to grant an evidentiary hearing on this ground.
IV. THE GIGLIO CLAIM
Mr. Murphy's third ground alleged that based on the 1991 FBI study, the State should have known that the FBI expert's testimony was false and misleading. The postconviction court did not rule on this claim. Accordingly, we reverse and remand to allow the postconviction court to consider the claim. See Kafus v. State, 933 So.2d 1267, 1267 (Fla. 2d DCA 2006); Calzada v. State, 934 So.2d 541, 542 (Fla. 3d DCA 2006).
V. CONCLUSION
For these reasons, we reverse the postconviction court's summary denial of Mr. Murphy's rule 3.850 motion and remand for further proceedings consistent with this opinion.
Reversed and remanded.
KHOUZAM and MORRIS, JJ., Concur.
NOTES
[1] John Solomon, FBI's Forensic Test Full of Holes, Wash. Post, Nov. 18, 2007, at A01, available at http://www.washingtonpost.com/ wpdyn/content/article/2007/11/17/AR XXXXXXXXXXXXX.html. The article explains:
Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and "60 Minutes" has found.
The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.
In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."
A year later, the bureau abandoned the analysis.
Id.
[2] The postconviction court did not address the issue of whether Mr. Murphy's motion was timely filed. The reports could not have been discovered at the time of Mr. Murphy's trial because they were not prepared until 1997 and 2004, respectively. The Washington Post article indicates that the FBI abandoned comparative bullet-lead analysis in 2005 but, as of November 18, 2007, had not informed defendants about the problems related to this type of evidence. Solomon, supra, at A01. Mr. Murphy alleged that he first learned about the reports on November 19, 2007. He filed his motion on May 27, 2008, less than two years later. However, we express no opinion concerning whether Mr. Murphy's claims of newly discovered evidence based on the unreliability of comparative bullet-lead analysis were actually "filed within two years of the time when [the] evidence upon which avoidance of the time limit was based could have been discovered through the exercise of due diligence." Bolender v. State, 658 So.2d 82, 85 (Fla. 1995); see also Glock v. Moore, 776 So.2d 243, 249-51 (Fla.2001) (rejecting a claim of newly discovered evidence based on an assertion that a traffic stop was illegal because it was predicated on impermissible racial profiling where the claim of illegal discriminatory enforcement of the traffic laws was a claim that had been known for a number of years, as indicated in reported cases addressing the issue). This is an issue that the postconviction court may address on remand.
[3] The Washington Post article explains that this 1991 study "found that bullets packaged 15 months aparta span that assumed separate batches of leadhad the exact composition, potentially undercutting the theory that each batch was unique [and] that bullets in a single box often had several different lead compositions." Solomon, supra, at A01. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585327/ | 24 So.3d 559 (2009)
BROWN
v.
STATE.
No. SC09-2179.
Supreme Court of Florida.
November 30, 2009.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585343/ | 24 So.3d 629 (2009)
Kelvis BELLAMY, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-1764.
District Court of Appeal of Florida, Fifth District.
December 4, 2009.
*630 Paula C. Coffman, Orlando, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
GRIFFIN, J.
Kelvis Lamar Bellamy ["Bellamy"] appeals the judgment and sentence that followed his entry of a plea of no contest to one count of aggravated battery with a deadly weapon. Bellamy contends that the trial court erred by failing to conduct an adequate Nelson[1] inquiry. We find no merit to this claim and affirm.
On April 17, 2009, Bellamy was charged with one count of aggravated battery with a deadly weapon, a second degree felony.[2] The trial court appointed the Public Defender to represent Bellamy. On the day of the trial, the parties appeared before the trial court prepared for trial and extended discussions ensued concerning a plea agreement. Defense counsel explained that Bellamy had been given a chance to consider the possibility of a plea offer, that Bellamy wanted more time for consideration, and that the State had indicated that it was not going to engage in discussion "past picking the jury." The following exchange ensued.
[DEFENSE COUNSEL]: Mr. Bellamy, you've had a chance to think about this, I know not as long as you would like to, but you've had a chance to think about it. And would you be willing to consider a plea in this case as opposed to going to trial? I guess that's the first question.
Well, let me ask you this, because the State has not yet made a formal offer, if the State extended an offer to you of 15 years, not a minimal [sic] mandatory, but a 15-year sentence, would you be willing to accept that?
THE DEFENDANT: Yeah, I take it. I take it.
[DEFENSE COUNSEL]: Is the State then going to extend that offer to my client?
[THE STATE]: Fifteen years?
[DEFENSE COUNSEL]: Yes, sir.
[THE STATE]: Yeah.
Thereafter, Bellamy entered a "best interest" plea of no contest to the offense of aggravated battery, "removing any reference to the 10-20-Life Statute," and upon the joint recommendation that he "receive a sentence of 15 years with credit for time served."
After placing Bellamy under oath, the trial court conducted the plea colloquy. Regarding whether Bellamy had had time *631 to discuss his case and plea with defense counsel, the following exchange took place:
THE COURT: Have you had enough time, I know you'd like more, but have you had a reasonable time and enough time to talk over your case and your plea with your attorney?
THE DEFENDANT: No, not to me, but I'm ready to just get this over with.
THE COURT: Well, here's the situation. If you haven't had enough time, then I can't take this plea. And I know that in a perfect world you'd like more time, I understand that, but that's not the question.
THE DEFENDANT: Yeah, I had enough time.
THE COURT: The question is have you had enough time so that you can consider what's in your own best interest?
THE DEFENDANT: Yes, sir.
THE COURT: And have you?
THE DEFENDANT: Yes, sir.
When asked whether he had been pressured, forced, threatened, or promised anything in relation to entering the no contest plea, Bellamy answered: "No, sir." Also, when asked whether he was satisfied with his attorney, Bellamy answered: "Yes, sir."
Defense counsel provided the factual basis for the plea, pointing out that depositions had been taken "of . . . almost every witness listed on the State's discovery exhibit." Thereafter, in the course of discussing the evidence, he said that it was likely that the victim and Bellamy's five-year-old son would have testified at trial that Bellamy shot the victim.
Near the end of the colloquy, the trial court asked Bellamy whether he was offering the plea because he thought it was in his best interest, whereupon Bellamy and defense counsel engaged in an off-record discussion. Afterwards, the following exchange took place between the trial court and Bellamy:
THE COURT: Well, I haven'tI haven't heard whatspecifically what you're talking about. But let me just advise you.
We're here to take this plea because you indicated that that's what you wanted to do. And so I'm asking you if that's what you want to do on yourkind of your final indication here. If you do not take the plea, what we're going to do is choose a jury and try this case Tuesday and Wednesday.
So what I'm offeringI'm offering I'm asking you, are you offering this plea of no contest to aggravated battery, it's a second-degree felony, upon the plea arrangement that was made because you believe that it is in your best interest to offer the plea of no contest?
THE DEFENDANT: Well, I'm really only offering because I don't think my attorney [is] really trying to help me.
THE COURT: Well, your attorney has indicated what he believes that the evidence would be. All I can tell you is that your attorneyI can't say anything about what he's done particularly in this case because I don't know. I can tell you he has a very fine reputation. But other than that, II mean, I don't know what goes on with the attorney for the State or the attorney for the Defense in a particularI never know until I hear the evidence myself when it comes to trial. So I can't personally comment on that.
We're not here to do that, though. We're here to see if you want to enter this plea of no contest to the charge of aggravated battery upon the State's *632 offer here. Is that what you want to do?
THE DEFENDANT: Yeah.
THE COURT: I'm sorry?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And are you offering the plea of no contest to aggravated battery because in this case you think doing it that way is in your own best interest?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions?
THE DEFENDANT: No, sir.
THE COURT: Is there anything else you want to say?
THE DEFENDANT: No, sir.
Immediately thereafter, the trial court accepted Bellamy's plea. In doing so, the trial court found that the plea was free and voluntary, that Bellamy understood the consequences of the plea and the waiver of his rights, that Bellamy was alert, intelligent, and competent, that Bellamy had effective assistance of counsel, that there was a sufficient factual basis to support the plea, and that neither party knew of any exonerating DNA evidence.
A pre-sentence investigation was waived, after which the trial court adjudicated Bellamy guilty of aggravated battery and sentenced him to fifteen years in the Department of Corrections with credit for time served. Less than thirty days later, Bellamy addressed a letter to the clerk of court, requesting an appeal. The letter provided in pertinent part:
I Kelvis Bellamy, Case # 2008-01808-CF-52
I am writing to request an appeal. Due to the fact that their was a conflict of interest in my case. My attorney (Mr. Bookhammer) was representing the victims [sic] brother. At the time I took a plea deal on April 20, 2009 for "15" years to the department of corrections. All along (Mr. Bookhammer) led me to believe that he could win this case, all the way until the day of Jury selection. I feel as if I was tricked and rushed to make a hugh decision in my life. I also am here to tell you that I have made the wrong decision. I am respectfully requesting an appeal. Also all along while (Mr. Bookhammer) has represented me he has not done so to the best of his ability. Also on the day of Jury selection I asked that my attorney be removed from my case. I was denied. There for I believe I should of received a Nelson hearing. (To determine the defendant's Dissatisfaction with the Defense counsel) I was scared because my attorney was not representing me to the best of his ability. I feel as if I was pushed into a plea.
I Kelvis Bellamy am respectfully submitting a request for an appeal, before my "30" days are up.
Defense counsel filed a timely notice of appeal and then filed a motion to withdraw and for appointment of regional conflict counsel. The trial court granted defense counsel's motion to withdraw and appointed the Office of Criminal Conflict and Civil Regional Counsel for the Fifth District to be Bellamy's new attorney of record.
Bellamy contends on appeal that the statement he made during the plea colloquy was tantamount to a motion to discharge his counsel and that the trial court erred by failing to conduct a Nelson hearing. We reject this contention based on the entirety of the plea colloquy. No motion to discharge counsel was ever made in any form and Bellamy said he was satisfied with his attorney. His only generalized comment that he did not think his attorney was trying to help him is not sufficient to trigger a Nelson inquiry. See *633 Logan v. State, 846 So.2d 472, 477 (Fla. 2003). The trial court made no error by failing to conduct a Nelson inquiry.
We note that Defendant's letter to the court did include an allegation that his counsel was operating under a conflict of interest. Given the procedural posture of this case, we have no information about this allegation, its merit or lack of merit. If Defendant believes he has a factual basis for this claim, the proper vehicle to determine the facts would be a motion made pursuant to Florida Rule of Criminal Procedure 3.850.
AFFIRMED.
PALMER and JACOBUS, JJ., concur.
NOTES
[1] Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
[2] See § 784.045, Fla. Stat. (2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585352/ | 508 So.2d 52 (1987)
Joseph Anthony CICCARELLI, Appellant,
v.
STATE of Florida, Appellee.
No. 4-86-1750.
District Court of Appeal of Florida, Fourth District.
June 10, 1987.
Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
ANSTEAD, Judge.
We have reviewed the record and have concluded that the trial court did not err in refusing to grant a mistrial on the grounds that a statement made by appellant was admitted at trial in violation of appellant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although we agree that there is a serious question as to the admissibility of the statement, we believe that under the test set out in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986), any error in admitting the statement was harmless. See also State v. Dellorfano, 128 N.H. 628, 517 A.2d 1163 (1986).
In determining that the error involved herein was harmless we have relied extensively upon the review of the evidence set out in the parties' briefs and our own internal review process by which the court's legal staff directly examines the trial court record to be certain that the court is presented with an accurate description of the evidence. Each judge on the panel has not independently read the record in its entirety. While we are confident that this review has been both complete and accurate, we are concerned as to whether our review is in accord with the holding in Holland v. State, 503 So.2d 1250 (Fla. 1987), which appears to hold that it is the duty of each appellate judge to read the entire trial court record before determining whether trial error may be harmless.
Our primary concern is that we comply with the supreme court's directions in resolving a harmless error claim by the state. At the same time, however, we must acknowledge some concern for the sheer amount of judicial time that will be required if, indeed, each judge must read the entire record before harmless error may be found. While the record is not especially lengthy in the present case, we must note that a claim of harmless error is raised in the vast majority of criminal appeals and our ability to manage an already staggering caseload will certainly be affected by a requirement that each judge read the entire record. Notwithstanding our concerns we will, of course, rigorously apply the standard of review mandated by the supreme court. We certify the following question as one of great public importance:
*53 IS IT NECESSARY, IN EVALUATING AN ASSERTION OF HARMLESS ERROR IN A CRIMINAL APPEAL, THAT EACH APPELLATE JUDGE INDEPENDENTLY READ THE COMPLETE TRIAL RECORD?
Accordingly, we affirm appellant's conviction.
DOWNEY, J., concurs.
STONE, J., concurs specially with opinion.
STONE, Judge, concurring specially.
I concur because, in my judgment, there was no Miranda violation and therefore no error in admitting the testimony. United States v. Gay, 774 F.2d 368 (10th Cir.1985). However, if Miranda warnings were required, then the error in admitting the evidence should not be considered harmless. The harmless error test in DiGuilio, 491 So.2d 1129 (Fla. 1986), applies to improper comments by the State or a witness, and not to the admission of involuntary or coerced statements. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring). I do agree with that portion of the opinion concerning the certified question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585362/ | IN THE MATTER OF THE SUCCESSION OF MARSHA KALINDA ALFRED
No. 2009 CA 0661.
Court of Appeals of Louisiana, First Circuit.
October 27, 2009.
Not designated for Publication
ANGELA F. LOCKETT, Baton Rouge, Louisiana. Counsel for Intervenors/Appellants Baton Rouge Sigma Alumnae Chapter of Delta Sigma Sorority, Inc.
ANDREW P. SELLERS, JR., Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees Doris R. Alfred, Stephanie A. Gant, and Gurney K. Alfred.
Before: DOWNING, GAIDRY and McCLENDON, JJ.
McCLENDON, J.
This is an appeal from a judgment finding a will invalid, refusing to admit same for probate, and dismissing the intervenors' claims with prejudice. For the following reasons, we affirm.
Marsha Kalinda Alfred (Ms. Alfred) died on September 9, 2007. Ms. Alfred was never married, nor did she have or adopt any children. On January 30, 2008, the petitioners, Doris R. Alfred, Stephanie A. Gant, and Gurney K. Alfred (Ms. Alfred's mother, sister, and brother respectfully), filed a petition to judicially open Ms. Alfred's succession. The petitioners attached a copy of a Last Will and Testament executed by Ms. Alfred on October 17, 2001, and asserted that they had been unable to locate the original of said document despite their diligent search. The petitioners further asserted that they contacted the law firm that drafted the will and were informed that the law firm did not possess the original will. Additionally, the will referenced an attached schedule of belongings, which was not attached and was never located. Thus, the petitioners contended that Ms. Alfred revoked her will and died intestate. The petitioners further recognized that Baton Rouge Sigma Alumnae Chapter of Delta Sigma Theta Sorority, Inc. (Delta Sigma) and Camphor Memorial United Methodist Church (Camphor Church) were named as legatees in the will and asserted that they would notify those entities by certified mail of the filing of the petition.
Thereafter, upon leave of court. Delta Sigma and Camphor Church intervened in the matter requesting that the will be found valid and probated and that the intervenors be put in possession of their legacies pursuant to Ms. Alfred's will. Following a bench trial, the trial court rendered judgment, finding the will invalid and that it should not be probated, because it was incomplete as to its attachment and because the original will was not located. Judgment to that effect was signed on December 4, 2008.
Delta Sigma has appealed, contending that the trial court committed manifest error in not allowing a copy of Ms. Alfred's Last Will and Testament to be probated.[1]
When a will cannot be found at the testator's death, there arises a presumption that the testator has destroyed the will with the intent of revoking it. Succession of Talbot, 530 So.2d 1132, 1134-35 (La. 1988); In re Succession of Hatched, 03-0163, p. 3 (La.App. 1 Cir. 11/7/03), 868 So.2d 36. The party seeking to establish the will may rebut the presumption by clear proof of the following: (1) the testator made a valid will; (2) proof of the contents or substance of the will; and (3) the will, though not found at testator's death, was never revoked by the testator. In re Succession of Claiborne, 99-2415, p. 3 (La.App. 1 Cir. 11/3/00), 769 So.2d 1267, 1268, writs denied, 00-3283 (La. 2/16/01), 786 So.2d 98, and 00-3310 (La. 2/16/01), 786 So.2d 99. To prevail, the proponent of a will bears the burden of establishing that the testator did not intend to revoke the will by destroying it. Succession of Talbot, 530 So.2d at 1135.
In its appeal. Delta Sigma contends that Ms. Alfred executed a valid notarial testament. It further urges that although Article III of the will entitled "Personal Affects" refers to an attached list of "personal household goods, furniture, clothing, and other items" and the list was not attached, there is no requirement in LSA-C.C. art. 1577, setting forth the requirements for a notarial testament, that an attachment to a will be included for the notarial testament to be valid. Lastly, Delta Sigma argues that considering the existence of a copy of the will, the facts of the case show that Ms. Alfred did not intend to revoke her will by destroying it. According to Delta Sigma, because there is absolutely no evidence that Ms. Alfred intentionally destroyed her will, it has overcome the presumption that the will was revoked.
The record in this matter establishes that the petitioners never located the original will, or the attached list, despite a diligent search. The petitioners testified that they searched Ms. Alfred's home, her automobile, and her personal belongings from her office. They contacted Ms. Alfred's banks and the law firm that prepared the will. The law firm only had a copy of the will and did not have a copy of the attachment. Ms. Gant testified that she was told that her sister had taken the original will with her and indicated that she would return to the law firm with the original will, including the attachment, but that she never did. None of the parties were able to produce the original will or the attached list.
At trial, it was also established that Ms. Alfred, although once a member of Camphor Church, terminated her membership sometime after 2001 and became a member of First United Methodist Church.
The trial court ruled, as follows:
1) the copy of the Last Will and Testament of Marsha Kalinda Alfred, dated October 17, 2001, is invalid and should not be probated because it is incomplete relative to Article III of the will, which refers to a list of "Personal Affects," which list was not found, nor was the original will located;
2) the evidence showed, and the court concluded, that the deceased was not a member of Camphor Memorial United Methodist Church at the time of her death, which amounted to a material change in circumstances and supported the presumption that the deceased destroyed her will before her death, which presumption was not overcome by the Intervenors; and
3) the claims of the Intervenors are hereby rejected and dismissed, with prejudice, at the Intervenors' cost.
After a thorough review and careful consideration of the entire record, we cannot say the trial court erred in finding that Delta Sigma failed to meet its burden of clearly proving that the will was never revoked by Ms. Alfred. Having found that the presumption was not overcome, we need not address whether the original will was invalid. For these reasons, we find no manifest error in the trial court's decision to deny the admission of the will for probate.
Accordingly, we affirm the judgment of the trial court in accordance with URCA Rule 2-16.1B. Costs of this appeal are assessed to Baton Rouge Sigma Alumnae Chapter of Delta Sigma Theta Sorority, Inc.
AFFIRMED.
NOTES
[1] The motion for appeal was filed by Delta Sigma and Camphor Church, and a suspensive appeal was granted as to both intervenors. However, only Delta Sigma filed an appellate brief. Therefore, the Camphor Church appeal is considered abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585365/ | 24 So.3d 743 (2009)
Brandan GATLIN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-2525.
District Court of Appeal of Florida, Second District.
December 30, 2009.
*744 Brandan Gatlin, pro se.
Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
A jury convicted Brandan Gatlin of aggravated battery by a prison detainee. Several years later, Gatlin filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, asserting twenty-three grounds for relief. We reversed the first summary denial of that motion in Gatlin v. State, 940 So.2d 1274 (Fla. 2d DCA 2006) (Gatlin I), and remanded for further proceedings with directions to the postconviction court.
On remand the court held an evidentiary hearing on two of Gatlin's claims and denied them after the hearing. It summarily denied the rest of the claims. As we will explain, the court failed to follow our directions in Gatlin I. Accordingly, we must reverse most of the summarily denied claims and again remand for further proceedings. We affirm without discussion the two claims[1] that the court denied after conducting an evidentiary hearing.
In Gatlin I we pointed out that the postconviction court originally entered an order finding that all Gatlin's claims were legally sufficient. After the State responded, the court changed course and entered an order summarily denying all of Gatlin's grounds on the alternative theories that each was either facially insufficient or refuted by the record. Id. at 1274-75. We noted the problem with denying the claims on such alternative grounds, i.e., that a denial or dismissal based on insufficiency of the pleadings was not a ruling on the merits, whereas a denial based on record attachments was a ruling on the merits. Id. at 1275 n. 1. We additionally advised that if the court were to deny any claims as refuted by the record, it must attach to its order the documents that supported that determination.
Notwithstanding our admonition in Gatlin I, on remand the postconviction court again denied nine of Gatlin's claims on the dual grounds that they were legally insufficient and refuted by the record.[2] Additionally, it denied eight more claims on the sole basis that they were refuted by the record.[3] Four claims were denied because of legal insufficiency alone,[4] one claim because it was without legal merit.[5] The postconviction court's order specifically discussed only seven of the summarily denied claims; it adopted the State's response as its reason for denying the rest of them.
*745 A. Claims denied because they were refuted by the record
We first address the claims denied solely on the basis that they were refuted by the record (footnote 3, above). We repeat that when a court denies postconviction claims as refuted by the record, it must attach to its order the portions of the record that conclusively refute the claims. See Gatlin I, 940 So.2d at 1275; see also Fla. R.App. P. 9.141(b)(2)(D). Here, the postconviction court adopted the State's response to the motion, which referenced pages of the record but did not attach them. The court itself also failed to attach to its order any documents that supported the denial of these claims. We must therefore again reverse the denials of these claims and remand with directions to the postconviction court either to grant Gatlin an evidentiary hearing or, if the record refutes a claim, to attach the appropriate documents to the order of denial. See Gatlin I, 940 So.2d at 1275; Burnett v. State, 933 So.2d 1282 (Fla. 2d DCA 2006).
B. Claims denied because they were legally insufficient
These claims include those denied solely on this basis (footnotes 4 and 5, above) and those denied on this and the additional ground that they were refuted by the record (footnote 2, above). We affirm the denial of Gatlin's claims 7 and 18. In claim 7, Gatlin objected to the State's decision to nolle prosequi one of the claims in the information against him. As the court correctly stated, this claim was "without legal foundation, is legally insufficient, and is without legal merit." The court adopted the State's response to claim 18, which asserted that defense counsel was ineffective for failing to request a mistrial when a juror was dismissed and the alternate juror was seated. The State pointed out that Florida Rule of Criminal Procedure 3.280(a) requires exactly the procedure that occurred at Gatlin's trial. The State and the court are correct.
The court adopted the State's response to all the remaining claims that it denied either entirely or partially based on legal insufficiency. The State's response asserted that many of these claims should have been denied for inadequate pleading. The response was filed in February 2006, before the postconviction court's first denial of Gatlin's motion. It was also filed before the supreme court issued Spera v. State, 971 So.2d 754 (Fla.2007).[6] The postconviction court's order on remand that summarily denied Gatlin's claims was also entered before Spera was decided, but the final order was rendered approximately six months later. Yet the court did not discuss the effect of Spera on its previous summary denials. Spera holds that "when a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion." Id. at 761.
The State's responses to grounds 11, 12, and 15, the remaining claims denied on the basis of legal insufficiency alone, raised pleading insufficiencies. Because the postconviction court did not specifically address why it was denying these claims, other than to accept the State's response, we must reverse and remand for the court to determine whether Gatlin should be given an opportunity to replead his assertions pursuant to Spera.
*746 As to the rest of the claims (enumerated in footnote 2), the court must determine whether they are legally insufficient or whether they are refuted by the record. If legally insufficient, it must again determine whether Gatlin should be allowed an opportunity to replead. If it determines that any claim is refuted, it must attach to its order the portions of the record that conclusively establish that Gatlin is not entitled to relief.
The denials of claims 7, 8(b), 18, and 19 are affirmed. The denials of all other claims are reversed and remanded for further proceedings.
LaROSE and KHOUZAM, JJ., Concur.
NOTES
[1] Claims referred to in the court's order as 8(b) and 19.
[2] Claims 1 through 6, 16, 20, and 21.
[3] Claims 8(a) through 10, 13, 14, 17, 22, and 23.
[4] Claims 11, 12, 15, and 18.
[5] Claim 7.
[6] Our Gatlin I decision also was issued before the opinion in Spera. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585385/ | 24 So.3d 781 (2009)
Terrance GRAHAM, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-3087.
District Court of Appeal of Florida, Fifth District.
December 31, 2009.
*782 Terrance Graham, Raiford, pro se.
Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Terrance Graham filed a pro se appeal from an order denying his motion to mitigate sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We treat the appeal as a petition for certiorari, grant the petition, and quash the order.
Graham was initially charged by information in January 2003, with drug-related sale and possession charges within 1000 feet of a place of worship. He pled guilty and was sentenced to forty-two and one-half months of incarceration, followed by three years of drug offender probation. After completing his incarcerative term, Graham violated a condition of his probation by testing positive for drugs. As a result, the terms of his probation were modified, and he was ordered to attend a residential drug treatment program.
Graham's attempt at rehabilitation proved unsuccessful, and he was discharged from the residential drug treatment program, constituting another violation of probation. Graham was then given the opportunity to attend drug court. However, Graham did not successfully complete this either, and he was resentenced on June 4, 2009, to approximately eleven and one-half years of incarceration with credit for time served.
Instead of appealing his new sentence, Graham timely filed a motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c) on the sixtieth day after he was sentenced and mere hours before the trial court lost jurisdiction to rule on it. Graham neither filed a motion for enlargement of time, nor offered any reasons why he waited so long to file his rule 3.800(c) motion. Apparently unaware that it had the discretion to extend the time for ruling on this motion, the trial court denied it, simply stating, "[T]he Court does not have jurisdiction to modify the Defendant's sentence more than 60 days after rendition. See Fla. R.Crim. P. 3.800(c)."
Relevant to the instant appeal, rule 3.800(c) states, "A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within 60 days after [its] imposition...." The denial of a rule 3.800(c) order is not appealable when decided on the merits. Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001). However, when the basis for denial was a lack of jurisdiction, certiorari is proper for purposes of challenging that ruling. See Eberheart v. State, 5 So.3d 791 (Fla. 5th DCA 2009); Ukaj v. State, 969 So.2d 1172 (Fla. 5th DCA 2007); Wills v. State, 963 So.2d 356 (Fla. 5th DCA 2007); Del Valle *783 v. State, 948 So.2d 78 (Fla. 5th DCA 2007); Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993). Thus, we treat this appeal as a petition for writ of certiorari.
The issue presented is whether a trial court maintains jurisdiction to hear a timely filed motion to mitigate under rule 3.800(c) when the motion is filed so late that the trial court is not afforded a reasonable opportunity to rule upon the motion within the sixty-day time frame set forth in the rule. Appellate courts have handled this issue differently. In Brantley v. Holloway, 685 So.2d 31, 31 (Fla. 2d DCA 1996), a defendant filed a writ of mandamus after the trial court denied his motion for sentence reduction on the basis that it was not filed within sixty days of his sentence. Noting that the trial court erred in finding the motion was not timely filed, the court, nonetheless, refused to grant mandamus, reasoning that because the motion was not filed until the sixtieth day, the trial court did not have a "meaningful opportunity to rule on his motion within the allotted jurisdictional time." See also Howard v. State, 914 So.2d 455, 456 (Fla. 4th DCA 2005). The Fourth District recently reiterated this position in State v. Schlabach, 1 So.3d 1091 (Fla. 4th DCA 2009), certifying conflict with the Second District in Childers v. State, 972 So.2d 307 (Fla. 2d DCA 2008).
Following the supreme court opinion in Abreu v. State, 660 So.2d 703 (Fla.1995), this court has consistently held that trial courts retain jurisdiction to hear timely filed motions pursuant to rule 3.800(c) past the sixty-day time frame. See Wills, 963 So.2d at 356; Timmer v. State, 840 So.2d 1160 (Fla. 5th DCA 2003); Haber v. State, 849 So.2d 1148 (Fla. 5th DCA 2003). In Timmer, we held that where the motion for mitigation was timely filed, no formal motion for enlargement of time under rule 3.050 was required when the scheduling of the hearing beyond the sixty-day period was beyond the defendant's control. As articulated in Abreu, there is a balancing of interests between "promot[ing] justice and equity while also allowing for the efficient operation of the judicial system." Abreu, 660 So.2d at 704. Under these circumstances, that scale tips toward a decision on the merits. Our view is that based upon the provisions of rule 3.050, the lower court does not lose jurisdiction to rule on a timely filed motion for mitigation of sentence under rule 3.800(c) because the trial court is unable to reach the merits of the motion prior to the expiration of sixty days.[1] Trial courts are to use due diligence in ruling on the motion with reasonable dispatch, and the trial court's decision is not subject to appellate review. Id.
We express no opinion as to the ultimate resolution of the motion for mitigation. Accordingly, we grant certiorari.
PETITION FOR CERTIORARI GRANTED; ORDER QUASHED.
ORFINGER and LAWSON, JJ., concur.
NOTES
[1] This is an issue we commend to the Florida Bar Criminal Rules Committee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918865/ | 411 B.R. 131 (2009)
In re JON J. PETERSON, INC., d/b/a Holiday Harbor, d/b/a Holiday Harbor Marina, Debtor.
No. 08-15082 B.
United States Bankruptcy Court, W.D. New York.
August 20, 2009.
*133 Damon Morey LLP, Daniel F. Brown, Esq., of counsel, Beth Ann Bivona, Esq., of counsel, Buffalo, NY, for Debtor.
Paul V. Webb, Jr., Esq., Lakewood, NY, for Boatworks, LLC.
Harris Beach PLLC, Kimberly Colaiacovo, Esq., of counsel, Buffalo, NY, for Potential Offerors.
Menter, Rudin & Trivelpiece, P.C., Kevin M. Newman, Esq., of counsel, James C. Thoman, Esq., of counsel, Syracuse, NY, for Community Bank, N.A.
Joseph W. Allen, Assistant U.S. Trustee, Buffalo, NY.
DECISION & ORDER
CARL L. BUCKI, Chief Judge.
Pursuant to section 363 of the Bankruptcy Code, the debtor in this Chapter 11 case seeks authority to sell substantially *134 all of its assets outside the ordinary course of business. The present dispute involves issues of fairness in the terms and conditions of an auction sale, as well as the setting of an appropriate "breakup" fee.
Jon J. Peterson, Inc., is the owner and operator of a marina located on the shores of Lake Chautauqua in the town of Celeron, New York. Its business includes the sale, restoration, storage and servicing of boats. On November 14, 2008, the corporation filed a petition for relief under Chapter 11 of the Bankruptcy Code. Asserting that the interests of creditors might best be served through a liquidation of assets, the debtor obtained an order dated April 23, 2009, which authorized the appointment of a real estate broker. After showing the property to several prospects, the broker identified The Boatworks, LLC ("Boatworks"), as a potential purchaser for virtually all of the debtor's assets. Consequently, on June 30, 2009, Boatworks and the debtor signed a purchase agreement (the "Asset Purchase Agreement"). Ostensibly, the debtor now presents Boatworks as a "stalking horse," whose offer will serve as a model for sale to any potential buyer.
The debtor's bankruptcy schedules indicate ownership of real property having an estimated value of $1,800,000, and of personal property with an estimated value of $699,217.61. The schedules further acknowledge that these assets are subject to liens that secure obligations in excess of $3.4 million. Indeed, no one has disputed the debtor's contention that its assets are more than fully encumbered, and that a distribution to unsecured creditors is therefore unlikely. In this context, the debtor has signed the Asset Purchase Agreement that contemplates a sale of all assets for $1,300,000. Although this sum is less than the scheduled values, the debtor asserts that the Asset Purchase Agreement represents the best offer received to date, and that the secured creditors have indicated their consent to a sale for this or any greater consideration.
By its terms and as required by 11 U.S.C. § 363, the Asset Purchase Agreement is subject to the approval of the Bankruptcy Court. Therefore, one week after the execution of that contract, the debtor filed a motion to approve the proposed sale to Boatworks. In a second motion, the debtor sought alternatively to establish bidding procedures in the event that other qualified purchasers might seek to present competing offers. Initially, a hearing on the request to establish bidding procedures was scheduled for July 20, in advance of a hearing on July 30 to approve the ultimate sale. In the absence of any competing bidders, the debtor intended to press its motion to approve a sale to Boatworks. But if other bidders presented themselves, the debtor would be positioned to conduct an auction of its property.
At the hearing on July 20, counsel reported that the debtor and Boatworks had agreed to adjourn the hearing on the sale or auction from July 30 to August 31, but that the debtor otherwise requested that the court approve the proposed bidding procedures. These bidding procedures included the setting of a "breakup" fee that would be payable to Boatworks in the event that someone other than Boatworks would ultimately make the highest bid. Counsel for two other potential bidders objected to the proposed terms and procedures of sale. With regard to the breakup fee, the court ruled that the debtor had failed to provide sufficient justification, but that Boatworks would be allowed to prove the reasonableness of its proposed fee at a hearing to be held on August 10. The court further made a preliminary ruling on the reasonableness of the various other terms of sale, and directed the parties to *135 prepare an appropriate order consistent with the court's oral direction. Unfortunately, the parties were unable to agree on whether competing bids would be subject to contingencies in the Asset Purchase Agreement. Thus, the hearing on August 10 served as the opportunity to consider this further issue, as well as the reasonableness of the breakup fee.
Standing
Initially, the debtor asserts that prospective bidders have no standing to object to the terms and conditions of an auction sale. This argument might have relevance to circumstances where some type of formal objection is a prerequisite for judicial consideration of a dispute. To the contrary, with or without objection by a party with standing, a debtor in possession may sell assets outside the ordinary course of business only "after notice and a hearing." 11 U.S.C. § 363(b). Thus, the court must approve the terms and conditions of the bidding process. Any argumentation merely facilitates the statutory mandate for judicial review. As parties with interest, prospective bidders may be positioned to offer valuable insight and perspective. Though arguably not parties in interest, they are welcomed to appear at least as friends of the court. In any event, the present decision is a necessary fulfilment of the court's duty to consider the reasonableness of the terms and conditions of any proposed sale of estate assets. Even without objection from other potential bidders, the bidding procedures would still require a resolution of the same infirmities that are discussed herein.
Sale Contingencies
As signed by the debtor and Boatworks, the Asset Purchase Agreement states that a closing is subject to four contingencies. In addition to bankruptcy court approval, these contingencies relate to financing, environmental issues, and the completion of a "due diligence" investigation. The Asset Purchase Agreement provides further that Boatworks may cancel the contract if it is unable to satisfy any of these three non-bankruptcy contingencies within 45 days after its execution of the agreement on June 30. At the hearing on August 10, counsel reported that Boatworks intended to waive these contingencies. Consequently, in drafting an order setting the terms and procedures for bidding, the debtor proposed that any auction sale be without any contingency other than Bankruptcy Court approval. To this suggestion, the other prospective bidders now object. They contend that any auction participants should be offered the same terms, including contingencies, that the debtor had allowed to Boatworks in the Asset Purchase Agreement.
As a general rule, debtors in Chapter 11 will liquidate assets pursuant to the terms of a confirmed plan of reorganization. Without a reorganization plan, debtors may sell assets outside the ordinary course of business only with court approval and upon demonstration of "a good business reason" to allow the sale. Committee of Equity Security Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2nd Cir.1983). In the present instance, the largest secured creditor has already obtained relief from the automatic stay of section 362 of the Bankruptcy Code. Facing the threat of foreclosure, the debtor contends that its proposed sale or auction represents the best opportunity to maximize a recovery of asset value and to minimize the size of any deficiency to secured creditors. Indeed, no one disputes that the debtor has exercised sound business judgment in proposing a sale outside the ordinary course. Rather, the only outstanding dispute involves the terms and conditions of the liquidation.
*136 Outside the context of a Chapter 11 plan, the authority to sell assets derives from 11 U.S.C. § 363. In relevant part, subdivision (b)(1) of this section states that "[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate...." As a debtor in possession, Jon J. Peterson, Inc., now serves as a trustee pursuant to 11 U.S.C. § 1107(a). To effect its proposed sale or auction, therefore, the debtor must secure the approval of this court after notice and a hearing. Although the Bankruptcy Code does not recite a standard of justification for a sale outside the ordinary course, I agree with the court in Matter of Phoenix Steel Corp., 82 B.R. 334, 335-36 (Bankr. D.Del.1987), that the debtor must demonstrate "that the proposed sale is fair and equitable, that there is a good business reason for completing the sale and the transaction is in good faith."
The debtor's motion to approve bidding procedures was duly served upon all creditors and parties in interest. In paragraph 12 of that motion, the debtor's counsel makes the following statement: "[S]o as to ensure that any competing bids are made on terms which permit ready comparison and analysis of which bid is a higher and better offer, the Debtor also proposes that bidding procedures be adopted which provide that any competing bids be required to be made on the same material terms and conditions as are included in the [Asset Purchase Agreement], without modification, but for increased purchase price." Paragraph 5 of the Asset Purchase Agreement expressly recites contingencies for financing, environmental issues, and the exercise of due diligence. Thus, in making its motion, the debtor effectively told creditors that the auction procedures would allow parties to bid for a contract with these same contingencies.[1] The deletion of these contingencies from the bidding procedures would therefore change a material provision of what the debtor had noticed to creditors. Due process requires consistency with the notice to creditors, so that bidding procedures must allow a sale subject to satisfaction of the same contingencies during a similar period of 45 days from the execution of the winning bidder's contract.
Even if the debtor were to give a corrected notice to its creditors, notions of fairness and equity compel a bidding procedure in the present instance that incorporates contingencies for financing, environmental review, and the exercise of due diligence. Here, the debtor negotiated the Asset Purchase Agreement to serve as a standard contract for the liquidation of assets. When executed on June 30, the Asset Purchase Agreement gave to Boatworks the benefit of a contract with the protections of contingencies. As originally noticed, the hearing to approve this contract was scheduled for July 30, a date that preceded the termination of cancellation rights under the contingency provisions. Because Boatworks had not yet satisfied the contingencies, however, the parties agreed to adjourn the sale to August 31. By that date, Boatworks will have enjoyed the full benefit of important cancellation rights. To now remove contingencies from *137 the bidding process is simply unfair. Having rescheduled the auction to assure to Boatworks the full exercise of its contingency options, the debtor may not now adopt a procedure that will deny those same rights to every other bidder.
The purpose and goal of any asset sale is to maximize the recovery of value for the benefit of the bankruptcy estate. In many instances, a "stalking horse" offer will facilitate a realization of that value, by establishing a framework for competitive bidding. But unless the bidding process remains fair and equitable, competitors will refrain from the type of full participation that is needed to assure bids for the highest reasonable value. For these reasons, the court will not approve bidding procedures that undermine principles of fair play.
Because secured claims will likely exceed the value of assets, the trustee may complete the present sale only with the consent of secured creditors. See 11 U.S.C. § 363(f). For this reason, in a letter-brief filed after the last hearing on this matter, the debtor's counsel warns that secured creditors may refuse their consent for any auction with contingencies. That, however, is of no consequence to the present decision. Indeed, during the hearing on August 10, the Office of the United States Trustee expressed proper apprehension for the continuance of this case in Chapter 11. To the extent that secured creditors desire the benefits of a sale in Chapter 11, they must accept bidding procedures that satisfy the mandate for fairness. Accordingly, the court will require that any auction allow for the same contingencies that the Asset Purchase agreement originally granted to Boatworks.
Breakup Fee
As an inducement for Boatworks to incur the expense of making an initial "stalking horse" offer, the debtor agreed to propose that bidding procedures incorporate a breakup fee in the amount of $39,000. This court will approve breakup fees that serve the best interests of the estate and that are otherwise fair. Fairness compels that such fees provide no windfall, but that they instead represent a reimbursement for costs and expenses that the stalking horse reasonably incurred either in formulating its offer or in facilitating the bid process. Thus, the breakup fee may reimburse two types of expense: first, the cost of putting together a "stalking horse" bid; and second, expenses from which all bidders will benefit. In justifying the breakup fee, the debtor must necessarily assume the burden of proof. Otherwise, a disbursement of estate assets might occur without assurance of their proper and necessary use.
With its request to approve a breakup fee, the debtor offered no evidence of the expenses for which Boatworks sought reimbursement. For this reason, the court initially declined to allow the request, but granted leave to present appropriate proof at the further hearing on August 10. In advance of that hearing, the debtor provided a two-page affidavit by the president of Boatworks, in which he identifies the following seven expenses:
1. Attorney Fees................................................................. $ 3,500.00
2. Real Estate Appraisal (estimate) ............................................. $ 2,500.00
3. Phase I Environmental Evaluation ............................................. $ 2,200.00
4. Consultant expenses related to loan application and due diligence review ..... $25,000.00
5. Anticipated pre-closing attorney fees ........................................ $ 2,500.00
6. Anticipated environmental study expenses ..................................... $ 5,000.00
7. Anticipated pre-closing accounting fees ...................................... $ 1,000.00
*138 The reasonableness of fees can only be evaluated within the context of the underlying offer. After it has made its offer, however, the "stalking horse" must assume the expenses that every other bidder must separately incur. Otherwise, by allowing the stalking horse to receive a benefit not available to bidders generally, reimbursement would create a windfall that chills the bidding process. The present facts illustrate these distinctions.
In the preparation and negotiation of the Asset Purchase Agreement, Boatworks incurred legal expenses in the amount of $3,500. Similarly, it secured an appraisal of the property, at an estimated cost of $2,500. Both charges are properly reimbursed as part of a breakup fee, in that they represent reasonable outlays that Boatworks expended as part of its undertaking to present a stalking horse offer. In contrast, the other proposed reimbursements involve subsequent costs of consummating that offer. Being the type of expense that will be incurred by whomever becomes the successful purchaser, they fail to provide to the debtor any special and unique benefits that would justify their inclusion into a breakup fee.
By its language, the Boatworks offer included contingencies for financing, environmental review and due diligence. Essentially, therefore, the parties agreed that these contingencies and the costs of meeting them would relate not to the making of the offer, but to the ultimate closing of the transaction. Consequently, a proper breakup fee will exclude the above referenced charges for environmental reviews, consulting services related to financing and due diligence, and the legal and accounting expenses of closing. If the Asset Purchase Agreement contained no contingencies, then perhaps some of these expenses might properly have been viewed as a necessary condition for the "stalking horse" bid. By negotiating a right to cancel in the event that it could not satisfy the stated contingencies, however, Boatworks caused the related expenditures to become a cost of closing rather than a reimbursable expense of the stalking horse.
A breakup fee may also provide reimbursement of expenses that will benefit all prospective bidders. For example, the court would have allowed reimbursement for the cost of the Phase I Environmental Evaluation, if only Boatworks had agreed to share that report with all prospective bidders. At the hearing on August 10, however, the attorney for Boatworks advised that the evaluation was proprietary information that his client would not share. The environmental review effectively became an expense incurred for the benefit of Boatworks alone, and is therefore not properly included into the allowed breakup fee.
Conclusion
For the reasons stated herein, the debtor's motion to approve bidding procedures will be denied unless the auction is subject to the same contingencies recited in the Asset Purchase Agreement, and unless the proposed breakup fee is limited to $6,000. To the extent that the debtor and Boatworks can accept these provisions, they may incorporate them into a revised order setting the terms and conditions of the bidding process.
So ordered.
NOTES
[1] In any dispute between the debtor and Boatworks, cancellation provisions must relate to 45 days from June 30, the date on which the parties executed the contract. With respect to the rights of other parties, however, the notice has established terms and conditions that include contingencies with a 45 day cancellation period. To have any meaning whatsoever, this period must extend 45 days from any new contract resulting from the auction. See Charter Asset Corp. v. Victory Markets, Inc. (In re Victory Markets, Inc.), 221 B.R. 298 (2nd Cir. BAP 1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070790/ | DISMISS; Opinion Filed July 9, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00305-CV
YOLANDA ANN GONZALES, Appellant
V.
JAMES CULLAR, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-14-00547-B
MEMORANDUM OPINION
Before Justices Lang, Myers, and Brown
Opinion by Justice Lang
The filing fee, docketing statement, and clerk’s record in this case are past due. By
postcard dated March 7, 2014, we notified appellant the $195 filing fee was due. We directed
appellant to remit the filing fee within ten days and expressly cautioned appellant that failure to
do so would result in dismissal of the appeal. Also by postcard dated March 7, 2014, we notified
appellant the docketing statement had not been filed in this case. We directed appellant to file
the docketing statement within ten days. We cautioned appellant that failure to do so might
result in dismissal of this appeal. By letter dated April 16, 2014, we informed appellant the
clerk’s record had not been filed because appellant had not paid for the clerk’s record. We
directed appellant to provide verification of payment or arrangements to pay for the clerk’s
record or to provide written documentation that she had been found entitled to proceed without
payment of costs. We cautioned appellant that failure to do so would result in the dismissal of
this appeal without further notice. To date, appellant has not paid the filing fee, filed the
docketing statement, provided the required documentation, or otherwise corresponded with the
Court regarding the status of this appeal.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 37.3(b); 42.3(b), (c).
/Douglas S. Lang/
DOUGLAS S. LANG
140305F.P05 JUSTICE
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
YOLANDA ANN GONZALES, Appellant On Appeal from the County Court at Law
No. 2, Dallas County, Texas
No. 05-14-00305-CV V. Trial Court Cause No. CC-14-00547-B.
Opinion delivered by Justice Lang. Justices
JAMES CULLAR, Appellee Myers and Brown participating.
In accordance with this Court’s opinion of this date, this appeal is DISMISSED.
It is ORDERED that appellee JAMES CULLAR recover his costs of this appeal from
appellant YOLANDA ANN GONZALES.
Judgment entered this 9th day of July, 2014.
–3– | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1585417/ | 24 So.3d 564 (2009)
Scott LEWIS, Carol Lewis, and Scott Lewis Gardening & Trimming, Inc., Appellants,
v.
NICAL OF PALM BEACH, INC., and Amy Habie, Appellees.
No. 4D07-3721.
District Court of Appeal of Florida, Fourth District.
July 22, 2009.
*565 Scott Lewis and Carol Lewis, West Palm Beach, pro se.
Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Jack Scarola of Searcy Denney Scarola Barnhart & Shipley P.A., West Palm Beach, for appellant Scott Lewis Gardening & Trimming.
Elliot B. Kula, Alan T. Dimond, Elliot H. Scherker and Daniel M. Samson of Greenberg Traurig, P.A., Miami, and Mark F. Bideau of Greenberg Traurig, P.A., West Palm Beach, for appellees.
FARMER, J.
In this long running breach of contract dispute with frequent appearances in our court,[1] we are asked to add the time value of paralegal work to an award of attorney's fees and to require prejudgment interest on several fee awards in different contempt proceedings. We are loathe to add to the ocean of words generated by this protracted dispute, so will simply state our results with but a brief comment.
The attorneys for the Scott Lewis side claim the value of paralegal labor in preparing for hearings and related proceedings. The paralegals in question are not regular employees or staff of their able counsel but instead none other than Scott Lewis and Carol Lewis themselves. The trial court denied this request.
We affirm that decision. The inherent possibility for mischief in deeming the client a paralegal of the representing attorney is apparent enough to cast a dense shadow over even the mere theoretical prospect of the argument they make. In this instance we note the utter absence of any showing that the labor of the client was required by the lawyer or had the effect of reducing the fee claimed by the lawyer.
We reverse the trial court's denial of prejudgment interest on the attorney's fees awarded.[2] On remand, the court shall calculate the amount of prejudgment interest due from the date of each discrete decision of entitlement to fees for a contempt proceeding.[3]
POLEN and STEVENSON, JJ., concur.
NOTES
[1] See Nical of Palm Beach Inc. v. Lewis, 815 So.2d 647, 652 (Fla. 4th DCA 2002) (upholding contempt but remanding to reconsider fine, holding that Lewis failed to prove actual loss and court failed to include purge), review denied, 828 So.2d 388 (Fla.2002); Lewis v. Nical of Palm Beach Inc., 959 So.2d 745 (Fla. 4th DCA 2007) (holding that civil contempt sanction may be coercive, sanction suspended on condition of future compliance with court orders is proper; court may reconsider entire penalty); Nical of Palm Beach Inc. v. Lewis, 981 So.2d 502 (Fla. 4th DCA 2008) (affirming amended civil contempt sanction; reversing attorney's fees and cost judgment). As yet unreported are Lewis v. Nical of Palm Beach Inc., No. 4D08-1104 (denying petition for writ of prohibition); Scott Lewis Gardening & Trimming, Inc. v. Nical of Palm Beach Inc., No. 4D07-2057 (denying petition for writ of prohibition); and pending cases: Special Prosecutor v. Nical of Palm Beach Inc., No. 4D08-568; Lewis v. Nical of Palm Beach Inc., No. 4D07-3720; and Lewis v. Nical of Palm Beach Inc., Nos. 4D08-419 & 4D08-671.
[2] See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985) (prejudgment interest runs from date entitlement is determined).
[3] The agreement of the parties provided: "This entitlement [to attorney's fees] shall be determined separate for each arbitration contempt proceeding, appellate proceeding or other legal proceeding." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918952/ | 106 B.R. 174 (1989)
In re Robert Warner LADD, Debtor.
Charles E. COVEY, Trustee, Plaintiff,
v.
IPAVA STATE BANK, Defendant.
Bankruptcy No. 88-82587, Adv. No. 89-8044.
United States Bankruptcy Court, C.D. Illinois.
October 13, 1989.
Charles E. Covey, Peoria, Ill., trustee.
Ted G. Collins, Lewistown, Ill., for defendant.
OPINION
WILLIAM V. ALTENBERGER, Bankruptcy Judge.
In February of 1984 the Debtor executed and delivered to the IPAVA STATE BANK (BANK) a Uniform Commercial Code Financing Statement which described the collateral to the BANK, along with other collateral, as being:
"crops, growing or to be grown, in Bernadotte Twp, Fulton County, IL".
A box on the Financing Statement was checked which indicated that products of collateral were also covered. In June of 1986 the Debtor gave the BANK another Uniform Commercial Code Financing Statement which described the collateral, along with other collateral as being:
"all farm crops, growing or to be grown, on parcels of land as described by the attached legal description."
Again, the box indicating products of collateral was checked. On January 11, 1989, a Uniform Commercial Code Continuation Statement was filed extending the Financing Statement filed in February of 1984.
Starting in January of 1988 and extending into July of 1988 the BANK made *175 several loans to the Debtor. These loans were evidenced by Combined Notes and Security Agreements. All of these Combined Notes and Security Agreements indicated that the collateral for the loans was equipment, farm products and accounts. Some of them further indicated that general intangibles secured some of the loans. One Combined Note and Security Agreement indicated that government payments and PIK certificates and proceeds of PIK certificates also were security. In January of 1988, the Debtor also executed and delivered a U.S. Department of Agriculture ASCS-36 form which assigned to the BANK payments due the Debtor under the Government Feed Grain Program. The first part of the assignment reads as follows:
"The producer (assignor) assigns to the lender the payments due or to become due him/her for the farm under the program and for the year identified above, not to exceed the amount shown above."
The last sentence of the assignment reads as follows:
"The lender agrees to pay over promptly to the producer (or refund to the Government for payment to the producer) any amount by which the payment made to the lender under this assignment exceeds the indebtedness secured by the assignment."
Later in 1988 Congress passed the Disaster Assistance Act of 1988. 7 U.S.C. Section 1421 et seq. This Act provides for disaster payments if the farmer's crop is adversely affected by drought, hail, excessive moisture, or related conditions in 1988. The Debtor's farming operation was adversely affected by drought during the year 1988, resulting in the Debtor being entitled to receive disaster payments in the amount of $8,439.00. Because of the assignment, these payments were made to the BANK.
After the Debtor filed a Chapter 7 proceeding, his Trustee in Bankruptcy brought this preference action to recover these payments. It is the Trustee's position that the Financing Statement is defective, in that the disaster payments are general intangibles and the Financing Statement does not refer to general intangibles. It is the Trustee's further position that the Financing Statement was improperly filed with the Recorder of Deeds, because the government payments are general intangibles which require filing with the Secretary of State of the State of Illinois.
In response, the BANK makes two arguments. First, that pursuant to the assignment there was an outright assignment of the disaster payments rather than the granting of security interest which required the filing of a financing statement, and, second, even if the transaction did involve the granting of security interest that the disaster payments are proceeds of crops. Therefore there was no need to describe general intangibles in the financing statement, nor was there any need to file the financing statement with the Secretary of State's Office.
The first issue before the Court is whether the assignment was an outright transfer of all rights to the disaster payments to the BANK, or was it merely the granting of a security interest. The Trustee argues that it was the latter, because if the loans were repaid by other sources the disaster payments would have been turned over to the Debtor. In response, the BANK argues that as it already had the security interest, it would have been meaningless to take an assignment unless it meant something more i.e. an outright assignment. The BANK relies on this Court's previous decision in In re Blackert, 95 B.R. 972 (Bkrtcy. C.D.Ill.1989).
This Court agrees with the Trustee that the transaction constituted the granting of a security interest and not an outright assignment. First, the testimony of both the BANK officer and the Debtor was quite clear that if the loan had been repaid through other sources the Debtor would have been entitled to the disaster payments. Furthermore, the Debtor testified that when he signed up for the disaster payments he assumed the money would go to the BANK, not because they were necessarily legally entitled to it, but because they were just like any other source of *176 income which would have gone to the BANK to repay the loans. Second, pursuant to federal statute, the ASCS office would not recognize an assignment unless filed at that office and the ASCS office only has a single form of assignment.[1] That form contains language which indicates both an outright assignment and that there is a secured transaction involved. In practice, the ASCS office uses the form for either situation. Therefore, in order to comply with the federal statute and be on record so as to be entitled to claim the disaster payments, the BANK used the only form that was available to it. So the BANK's argument is without merit. All the BANK did was to utilize the only form available to take the additional step necessary to assure that it received payment from the ASCS office.
The BANK's reliance on this Court's decision in In re Blackert, supra, is misplaced. In that case, the bank and its borrower were engaged in a conveyance in lieu of foreclosure. Under the circumstances of that case the assignment was intended to be outright as part of the borrower's liquidation. Those facts are not present in this case and a similar result is not justified.
Finally, the BANK's position must fail, because as a matter of contract law, it cannot have a transfer of a right not in existence at the time of the assignment. Litwin v. Timbercrest Estates, Inc., 37 Ill. App.3d 956, 347 N.E.2d 378 (1st Dist.1976). In January of 1988, when the assignment was given, the Disaster Assistance Act of 1988 had not been passed. Therefore, the parties could not have and did not contemplate it as being subject to an outright assignment. Although it is possible under the Commercial Code for a creditor to take a security interest before a debtor acquires rights in property, that is not the case under general contract law.
The next issue before the Court is whether the disaster payments are proceeds of crops and thereby subject to the Financing Statement filed by the BANK. This Court is of the opinion that they are not. Section 9-306 of the Uniform Commercial Code defines proceeds as being "whatever is received upon the sale, exchange, collection or other disposition of the collateral." Ill.Rev.Stat.1987, Ch. 26, para. 9-306. The issue of whether government payments are proceeds under Section 9-306 was considered by this Court in In re Kruger, 78 B.R. 538 (Bkrtcy.C.D.Ill.1987). In that decision, this Court analyzed most of the cases that had been decided at that point in time and refused to establish a single result for all government payments. This Court indicated that it felt it was necessary to examine each particular government program to determine the nature of the subsidy payment and then to determine if payments of that nature fell within the definition of the term proceeds. Based upon the decision in In re Schmaling, 783 F.2d 680 (7th Cir.1986), this Court held that in order for government payments to be proceeds within the definition of Section 9-306, that three conditions must be present. First, a crop must be planted, second there must be a disposition of the crop, and third the entitlement which the secured creditor is claiming must have been received in connection with that disposition. This Court went on to hold that deficiency payments were not proceeds because although the crop was planted, the deficiency payment was received without a disposition of the crop and the payment was not received in connection with that disposition.
This Court now turns its attention to the issue of whether disaster payments under the Disaster Assistance Act of 1988 can be classified as proceeds. This Court is of the opinion that they cannot be so classified. These payments are made to compensate a farmer for any deficiency brought about by drought, hail, excessive moisture, or related conditions in 1988. The payment is based upon historical yields for the acreage involved times a particular percentage. A *177 farmer can have a bad year (because as in this case the drought of 1988) and still receive the payment even though the crop is never harvested, or, if harvested, is kept by the farmer. The payment is calculated on an estimated, not on actual, yield. There is no requirement that a farmer sell or otherwise dispose of his crop in order to be entitled to a disaster payment. But there has to be a sale, exchange, collection or other disposition in order for something to be received in its place and thereby fall within the classification of proceeds. In this case the disaster payments would have been received regardless of whether there was a sale or other disposition. They were not received as a substitute for a disposed-of crop. Therefore, this Court concludes that the disaster payments are not proceeds, and the Financing Statement was defective in that it failed to describe the government disaster payments either specifically or by claiming general intangibles, and was filed in the wrong office.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
See written Order.
ORDER
For the reasons set forth in an Opinion filed this day:
IT IS, THEREFORE, ORDERED that the Trustee be and is hereby entitled to recover the preferential payment of $8,439.00 from the Defendant, IPAVA STATE BANK.
NOTES
[1] See 16 U.S.C. Section 590 and the regulation promulgated pursuant thereto, (7 C.F.R. Section 709). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585409/ | 24 So.3d 197 (2009)
STATE of Louisiana
v.
Lawson A. WILDER III.
No. 2009-KK-2322.
Supreme Court of Louisiana.
December 18, 2009.
PER CURIAM.
Defendant, charged with driving while intoxicated first offense, filed a motion to suppress "all oral and/or recorded and/or written inculpatory statements made by Defendant" as well as "[a]ny and all physical items seized from Defendant" and "results of any test of Defendant for intoxication." The State filed an objection to the motion to suppress and filed a motion for specificity asserting the defendant should be denied a hearing on his motion to suppress. Alternatively, the State argued defendant should be ordered to amend his motion and specify what he seeks to suppress and the reasons suppression of evidence is warranted. The trial court ruled in favor of the State granting the objection and ordering defendant to amend his motion to conform with LSA-C.Cr.P. article 703(E)(1).[1]
Defendant sought review of that ruling. The court of appeal granted the writ application and reversed the trial court decision. The court of appeal, relying on State v. Rogers, 476 So.2d 942 (La. App. 2 Cir.1985), found "the Motion to Suppress was adequately set out." In Rogers, the court concluded that defendant's objection to the use of the inculpatory statement alleged all facts necessary to entitle him to an evidentiary hearing at which the state bears the burden to establish beyond a reasonable doubt that the inculpatory statement was free and voluntary. Likewise, the court found that an allegation that physical evidence was seized without a warrant was legally sufficient to entitle defendant to a hearing under LSA-C.Cr.P. art. 703(E). The appellate *198 court found State v. Richey, 258 La. 1094, 249 So.2d 143 (1971), distinguishable in that the motions to suppress in Richey were extremely broad and vague. The defendant in Richey sought to suppress "any evidence, testimonial or physical, including any statements, etc. in the hands of the law enforcement or the District Attorney ... obtained in violation of [defendant's] constitutional and statutory rights." Richey, 258 La. at 1110, 249 So.2d at 149.
The State filed for supervisory review with this court arguing that State v. Richey is controlling and that defendant's motion to suppress does not comply with the requirements of LSA-C.Cr.P. art. 703(E).
A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion. State v. Lee, 05-2098, p. 15 (La.1/16/08), 976 So.2d 109, 122, cert. denied, ___ U.S. ___, 129 S.Ct. 143, 172 L.Ed.2d 39; State v. Vessell, 450 So.2d 938, 943 (La.1984). The trial court found defendant's "Motion to Suppress makes general allegations referring to certain constitutional amendments that were allegedly violated, but fails to give any specific facts or details." We note defendant's motion to suppress was extremely broad and general, lacking any specificity as to the facts of this particular case. We find the trial court did not abuse its discretion in determining defendant pled insufficient facts to warrant a hearing on his motion to suppress. The State's writ application is granted; the ruling of the trial court ordering defendant to amend his motion to suppress to conform with Article 703(E)(1) is reinstated.
WRIT GRANTED. TRIAL COURT ORDER REINSTATED.
NOTES
[1] LSA-C.Cr.P. art. 703(E)(1) provides:
An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant's testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant's testimony at the trial on the merits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585418/ | 508 So.2d 380 (1987)
Glen McCURDY, Appellant,
v.
J.C. COLLIS and Exxon Corporation, Appellees.
No. BM-258.
District Court of Appeal of Florida, First District.
March 16, 1987.
On Motion for Rehearing June 11, 1987.
*381 Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant.
A. Broaddus Livingston and Sylvia H. Walbolt, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellees.
JOANOS, Judge.
Appellant Glen McCurdy appeals from an order granting summary judgment in favor of appellees J.C. Collis and Exxon Corporation (Exxon), with respect to McCurdy's claim of tortious interference with a business relationship. We reverse.
The starting point for this appeal was McCurdy's successful prosecution of a personal injury action against Exxon in Alabama state court. In 1980, McCurdy was working as a foreman for Welding Unlimited. Welding Unlimited performs 98 to 99 percent of its work for Exxon. On September 12, 1980, McCurdy was severely burned by molten sulphur at the Exxon sulphur recovery plant in Flomaton, Alabama.
After a 17 to 18 month period of recuperation, McCurdy returned to his former job. According to his employers at Welding Unlimited, McCurdy continued to be a good foreman.
At the Alabama trial, McCurdy's treating physician, Dr. Johnson, testified that due to the extent of his (McCurdy's) burns, he should not work in a hot, dirty environment. The physician further stated that McCurdy had suffered no loss of physical strength other than that attributable to the long period of inactivity required for McCurdy to recover from his injuries. On March 15, 1982, Dr. Johnson signed a work release for McCurdy's return to work.
Exxon put on evidence and argued to the jury that McCurdy could work, and in fact had returned to work for Welding Unlimited. McCurdy's trial stance was that although he was working, he was not working at top performance, and any prediction about how long he would be able to continue to work was speculative. The jury found for McCurdy, and awarded damages of $750,000, which Exxon paid on June 14, 1982, without taking an appeal.
On July 20, 1982, Wayne Harms, a district engineer for Exxon, contacted Gary Brock, one of the owners of Welding Unlimited. Harms had heard reports about Dr. Johnson's trial testimony, and told McCurdy's employer (Brock) that in Exxon's opinion, McCurdy was a safety risk. Subsequently, Harms and J.C. Collis of Exxon met with Brock and Huss, the owners of Welding Unlimited, McCurdy's employers. Exxon representatives reiterated the view that McCurdy was a safety risk, and reminded Huss and Brock that their contract required that they perform their *382 duties for Exxon in a safe manner. Huss and Brock were then advised that McCurdy could not work on Exxon property, because that work area was the type of environment which McCurdy's doctor had said he (McCurdy) should avoid.
After the meeting with Exxon's representatives, McCurdy's employers did not permit him to return to any jobs for Exxon. Instead, McCurdy was assigned the role of errand-runner. Shortly, thereafter, McCurdy took a leave of absence. When he attempted to return to work, he was told Welding Unlimited had no job for him until he could work at Exxon. McCurdy was unsuccessful in his efforts to obtain employment with other contractors in the area, who also performed the major portion of their work for Exxon.
McCurdy filed suit against Exxon, seeking damages for slander and tortious interference with a business relationship. The trial court entered summary judgment in favor of Exxon. McCurdy appeals only the portion of the summary judgment which pertains to the tortious interference count.
We note at the outset that summary judgment is appropriate only in those instances where it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510(c). Exxon argues here as it did before the trial court that the statements made by Exxon personnel to McCurdy's employers were qualifiedly privileged. While we agree that in certain circumstances Exxon would be entitled to interfere to a limited extent with Welding Unlimited's choice of employees, the record in this case suggests the privilege was not properly exercised.
The Florida Supreme Court first enunciated the concept of qualified privilege in Coogler v. Rhodes, 38 Fla. 240, 248, 21 So. 109, 112 (1897), saying:
Where a person is so situated that it becomes right, in the interests of society, that he should tell to a third person certain facts, then, if he bona fide, and without malice, does tell them, it is a privileged communication.
In other words, a statement "made by one who has a duty or interest in the subject matter to one who has a corresponding duty or interest" is qualifiedly privileged. Schreidell, Finnegan, and Brite Electric Division v. Shoter, 500 So.2d 228 (Fla. 3rd DCA 1986). See also Teare v. Local Union No. 295, of the United Association of Journeymen & Apprentices of the Plumbers & Pipe Fitters Industry, 98 So.2d 79 (Fla. 1957); Water & Sewer Utility Construction, Inc. v. Mandarin Utilities, Inc., 440 So.2d 428 (Fla. 1st DCA 1983).
In those instances where there is a qualified privilege to make statements potentially damaging to another, a plaintiff must prove express malice or malice in fact in order to recover. See Schreidell, Finnegan and Brite Electric Division v. Shoter, and cases cited therein. Proof of malice in fact involves production of evidence from which the jury could conclude that the challenged statement was motivated by ill will and the desire to harm. Schreidell v. Shoter, 500 So.2d at 231; Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981). Such proof may be established indirectly, i.e., "by proving a series of acts which, in their context or in light of the totality of surrounding circumstances, are inconsistent with the premise of a reasonable man pursuing a lawful objective, but rather indicate a plan or course of conduct motivated by spite, ill-will, or other bad motive." Southern Bell Telephone & Telegraph Company v. Roper, 482 So.2d 538, 539 (Fla. 3d DCA 1986); 29 Am.Jur.2d Evidence, s. 361. Where the circumstances surrounding the statement are in dispute, the question of qualified privilege is a factual determination for resolution by the jury. See Hartley & Parker, Inc. v. Copeland, 51 So.2d 789 (Fla. 1951); Schreidell v. Shoter, 500 So.2d at 231; Southern Bell v. Roper, 482 So.2d at 539; Glickman v. Potamkin, 454 So.2d 612 (Fla. 3d DCA 1984), review denied, 461 So.2d 115 (Fla. 1985).
One seeking to recover on a claim predicated on tortious interference with a business relationship must establish:
*383 (1) the existence of a business relationship, not necessarily evidenced by an enforceable contract;
(2) knowledge of the relationship on the part of the defendant;
(3) an intentional and unjustified interference with the relationship by the defendant; and
(4) damage to the plaintiff as a result of the breach of the relationship.[1]
Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla. 1985); Water & Sewer Utility Construction, Inc. v. Mandarin Utilities, Inc., 440 So.2d 428, 430 (Fla. 1st DCA 1983); Peacock v. General Motors Acceptance Corporation, 432 So.2d 142, 145, f.n.3 (Fla. 1st DCA 1983); Ethyl Corporation v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981).
In Tamiami Trail Tours, the supreme court approved that portion of this court's decision reported at 432 So.2d 148 (Fla. 1st DCA 1983), which held that the third element (intentional and unjustified interference with a business relationship) does not require a showing that the interference was intended to secure a business advantage over the plaintiff. The supreme court concluded there is "no logical reason why one who damages another in his business relationships should escape liability because his motive is malice rather than greed. The action is tortious, regardless of motive." 463 So.2d at 1128. It is clear, however, that "the interference must be both direct and intentional." (emphasis supplied). Lawler v. Eugene Wuesthoff Memorial Hospital Association, 497 So.2d 1261, 1263 (Fla. 5th DCA 1986); Rosa v. Florida Coast Bank, 484 So.2d 57 (Fla. 4th DCA 1986).
As the supreme court made clear in Tamiami Trail Tours, the relationship at issue need not be evidenced by an enforceable contract. Thus, an action will lie where, as in the instant case, a party tortiously interferes with a contract terminable at will. Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1897); Mays v. Stratton, 183 So.2d 43 (Fla. 1st DCA), cert. denied, 188 So.2d 817 (Fla. 1966); Florida Power & Light Company v. Fleitas, 488 So.2d 148, 152 (Fla. 3d DCA 1986); Unistar Corporation v. Child, 415 So.2d 733, 734 (Fla. 3d DCA 1982); Insurance Field Services, Inc. v. White & White Inspection and Audit Services, Inc., 384 So.2d 303, 306 (Fla. 5th DCA 1980).
A qualified privilege to interfere is not negated by concomitant evidence of malice. It is only when malice is the sole basis for interference that it will be actionable. Ethyl Corp. v. Balter, 386 So.2d at 1225-1226. Nor is there a cause of action for negligent interference; to be actionable, the conduct must be intentional.[2]Florida Power & Light Co. v. Fleitas, 488 *384 So.2d at 151. Similarly, there is no cause of action for tortious interference when a contract provision expressly reserved the right to interfere. Florida Telephone Corporation v. Essig, 468 So.2d 543, 544 (Fla. 5th DCA 1985).
In those circumstances in which there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper. Peacock v. GMAC, 432 So.2d at 144-145; Babson Bros. Co. v. Allison, 337 So.2d 848, 850 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla. 1977). In other words, the privilege does not encompass the purposeful causing of a breach of contract. Yoder v. Shell Oil Company, 405 So.2d 743, 744 (Fla. 2d DCA 1981); Restatement (2d) of Torts, s. 777 (1977). The justification for intentional interference "depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances among which the methods and means used and the relation of the parties are important." Insurance Field Services v. White, 384 So.2d at 306-307.
In this case, the respective parties have, in a sense, adopted positions directly contrary to the position which each advanced in the Alabama trial. In so doing, both parties rely on the doctrine of estoppel against inconsistent positions. The doctrine provides that a party who assumed a certain position in a legal proceeding may not thereafter assume a contrary position, especially if it is prejudicial to the party who acquiesced in the former position. Palm Beach County v. Palm Beach Estates, 110 Fla. 77, 148 So. 544, 548-49 (1933); Lambert v. Nationwide Mutual Fire Insurance Company, 456 So.2d 517, 518 (Fla. 1st DCA 1984); Pearson v. Harris, 449 So.2d 339, 343 (Fla. 1st DCA 1984); Sobel v. Jefferson Stores, Inc., 459 So.2d 433 (Fla. 3rd DCA 1984). For example, in Scott v. Sears, Vail & Williams, P.A., 366 So.2d 786 (Fla. 1st DCA 1978), this court held it is inconsistent for a party to contend that a court or jury could properly measure his damages when he incorporated into his complaint his agreement with the other parties that damages could not be measured.
In this case, Exxon had an interest, albeit not an investment interest, in the job performance of Welding Unlimited, appellant's employer. In addition, Exxon had a contractual right to raise safety concerns regarding the manner in which Welding Unlimited performed its duties for Exxon. In this instance, however, malice is implicit in the manner in which Exxon allegedly exercised its right to voice safety concerns to its subcontractor. First, Exxon, through its personnel, stated it made its decision to ban appellant from its plant solely on the basis of Dr. Johnson's trial testimony. Exxon personnel acknowledged that none of the decision makers had observed appellant at work, there had been no communication of any kind regarding the manner in which appellant performed his duties, and when Exxon personnel met with appellant's employers the employers advised that appellant was doing a good job and there had been no complaint concerning his work. The inference of malice as the motivating factor in Exxon's decision arises due to the timing of the decision, i.e., five weeks after Exxon paid the judgment award, and due to the basis of the decision, including the fact that no well-founded accusation had been made, and no investigation had been conducted by Exxon before announcing its decision.
This record reflects that McCurdy has established (1) the existence of a business relationship, (2) Exxon's knowledge of that relationship, (3) Exxon's intentional interference with the relationship, and (4) damage as a result of Exxon's interference. Exxon has argued strenuously that its interference was justifiable on the basis of its contractual right to raise questions concerning safety in its plants. Nevertheless, the record indicates that Exxon personnel based their decision that McCurdy was a safety risk on the basis of third party reports concerning Dr. Johnson's trial testimony. Exxon conducted no independent investigation of McCurdy's job performance, and in fact his employers advised Exxon that McCurdy was doing a good job.
*385 Since we recognize the difficulties involved in determining whether malice was the sole motivating factor in this interference case, we conclude the qualified privilege issue should be resolved by the trier of fact. Accordingly, the summary judgment is reversed and this case is remanded for proceedings consistent with this opinion.
MILLS and SHIVERS, JJ., concur.
ON MOTION FOR REHEARING
JOANOS, Judge.
Appellee Exxon Corporation has filed motion for rehearing of the opinion released March 16, 1987. Upon consideration of appellee's motion for rehearing, we have determined that the opinion's treatment of the doctrine of estoppel against inconsistent positions should be clarified. The opinion included a general discussion of the doctrine of estoppel against inconsistent positions, but failed to address the inapplicability of the doctrine to the instant case. Since the Alabama jury award was a general verdict, it cannot be determined whether any part of the award was intended as compensation for future lost wages. Accordingly, we find the doctrine of estoppel against inconsistent positions is inapplicable to this case.
In all other respects, the motion for rehearing is denied.
MILLS and SHIVERS, JJ., concur.
NOTES
[1] The factors to consider in evaluating the propriety of interference with contractual relations are stated in Restatement (Second) of Torts s.767 (1977), as:
In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor's conduct,
(b) the actor's motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor's conduct to the interference and
(g) the relations between the parties.
[2] For example, Florida Standard Jury Instruction (Civil) MI 7.2, states in relevant part:
A person who interferes with the business relations of another with the motive and purpose, at least in part, to advance [or protect] his own business [or financial] interests, does not interfere with an improper motive. But one who interferes only out of spite, or to do injury to others, or for other bad motive, has no justification, and his interference is improper.
.....
If (defendant's) interference was improper, the last question is whether it was intentional as well. Interference is intentional if the person interfering knows of the business relationship with which he is interfering, knows he is interfering with that relationship, and desires to interfere or knows that the interference is substantially certain to occur as a result of his action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585426/ | 508 So.2d 422 (1987)
STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant,
v.
Bessie TRAMMELL, Personal Representative of the Estate of Lee Warren, Deceased, Appellee.
No. BQ-314.
District Court of Appeal of Florida, First District.
May 12, 1987.
Rehearing Denied June 23, 1987.
*423 Donna Harkness, Dept. of Health and Rehabilitative Services, Pensacola, for appellant.
Ferrin C. Campbell, Sr., Crestview, for appellee.
ERVIN, Judge.
The Department of Health and Rehabilitative Services (HRS) appeals an order of the circuit court holding that a non-heir of a decedent was entitled to homestead protection under the Florida Constitution. We reverse.
Lee Warren, unmarried and apparently without any other surviving heirs, died January 11, 1985, devising his entire estate to his "good friend," Bessie Trammell. The only asset in the estate is a house and lot valued at approximately $9,000. Pursuant to Section 409.345(1), Florida Statutes,[1] HRS filed a lien against the estate in the amount of $14,440.67, covering the amounts expended on behalf of the decedent for his care at a nursing home, direct assistance and medical services. Section 409.345(4), however, consistent with the provisions of Article X, Section 4(a) and (b) of the Florida Constitution (1968), as amended in 1984,[2] forbids such liens against homestead property.[3]
HRS filed a petition for declaratory judgment to determine whether Bessie Trammel was an heir entitled to homestead protection under the Florida Constitution. The circuit court ruled that she was so entitled, stating that Bessie Trammell "is a testamentary heir of Lee Warren and as such is entitled to homestead protection based on Article X, Section 4, of the Florida Constitution as amended." (e.s.) We find no legal support for this conclusion.
The Florida Supreme Court, while never interpreting the word "heirs", as used in Article X, Section 4, Florida Constitution, since its most recent amendment, has interpreted the word as used in Section 2 of Article X of the Florida Constitution of 1885, containing language very similar to the current provision, to mean "those who may under the laws of the state inherit from the owner of the homestead." Shone v. Bellmore, 75 Fla. 515, 78 So. 605, 607 *424 (Fla. 1918). Heirs are defined in Section 731.201(18), Florida Statutes, as "those persons, including the surviving spouse who are entitled under the statutes of intestate succession to the property of a decedent." Among the heirs listed in Section 732.103, Florida Statutes, are lineal decedents, fathers and mothers, brothers and sisters, and grandmothers and grandfathers. Bessie Trammell, who was decedent's "good friend", is not recognized as an heir under Florida law, and is therefore not entitled to the protection of the constitutional homestead provisions that exempt the decedent's property from forced sale.
REVERSED.
MILLS and WIGGINTON, JJ., concur.
NOTES
[1] Section 409.345(1), provides in pertinent part:
The acceptance of public assistance shall create a debt of the person accepting assistance, which debt shall be enforceable only after the death of the recipient. The debt thereby created shall be enforceable only by claim filed against the estate of the recipient after his death or by suit to set aside a fraudulent conveyance, as defined in subsection (3).
[2] Those provisions generally state that homestead property is exempt from forced sale and that the exemption shall inure to the benefit of the surviving spouse or heirs of the owner. Article X, Section 4(c) additionally precludes the devise of homestead property if the owner is survived by a spouse or minor child.
[3] Section 409.345(4) provides in pertinent part:
"The claim herein created shall not in any manner be enforceable against a homestead of realty or personalty as defined and provided for in s. 4, Art. X of the State Constitution or against household furnishings and furniture." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014442/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORY COLLINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-64)
Submitted: September 1, 2004 Decided: October 1, 2004
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Malloy McEachin, Jr., Florence, South Carolina, for Appellant.
J. Strom Thurmond, Jr., United States Attorney, William E. Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cory Collins pled guilty to armed bank robbery, 18 U.S.C.
§ 2113(a), (d) (2000), and aiding and abetting, 18 U.S.C. § 2
(2000) (Count 1); and using or carrying a firearm during a crime of
violence, 18 U.S.C. § 924(c) (2000), and aiding and abetting, 18
U.S.C. § 2 (Count 2). He was sentenced to a term of sixty-three
months imprisonment for the bank robbery and a consecutive ten-year
term for the § 924(c) offense. Collins appeals his sentence,
arguing that the district court erred in making an adjustment for
reckless endangerment during flight from a law enforcement officer,
U.S. Sentencing Guidelines Manual § 3C1.2 (2002). We affirm.
Collins and two accomplices robbed a bank in Jefferson,
South Carolina, on February 13, 2003. Collins went behind the
teller counter and took money from the tellers while Willis Barrino
stood in the lobby with an AR 15 semiautomatic rifle shouting
directions to the bank employees. Arke Benjamin Cuff drove the
getaway car, a Lexus registered to Barrino. After Collins and
Barrino came out of the bank, Cuff accidentally backed the Lexus
into a ditch. All three men got out and pushed the car out of the
ditch. As they drove away, several cars followed them. Barrino
shot at the pursuers several times, then took the wheel of the
Lexus. As they drove at high speed through Pageland, South
Carolina, a police car looking for their car saw and pursued them.
- 2 -
After a chase at high speed, Barrino wrecked the car. All three
robbers fled, but were soon arrested.
After his guilty plea and preparation of the presentence
report, Collins objected to the recommendation for an adjustment
for reckless endangerment during flight. At the sentencing
hearing, defense counsel argued that Collins was not responsible
for his co-defendant’s conduct. The district court noted that
Application Note 5 to § 3C1.2 makes a defendant accountable “only
for his own conduct and for conduct that he aided or abetted,
counseled, commanded, induced, procured, or willfully caused,” for
purposes of applying the guideline, but determined that all three
defendants aided and abetted each other’s conduct. The court found
that Collins had directly participated in all aspects of the
robbery, and was thus responsible for the risk created.
When the facts are not contested, as in this case, the
issue is a legal one and review is de novo. United States v.
Butner, 277 F.3d 481, 488 (4th Cir. 2002). An adjustment is made
under § 3C1.2 “[i]f the defendant recklessly created a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer. . . .” For
purposes of § 3C1.2, the normal scope of relevant conduct is
narrowed by Application Note 5.
Collins argues on appeal that he was not a participant in
the events that occurred after he and his co-defendants left the
- 3 -
bank and that, like the defendant in United States v. Chong, 285
F.3d 343 (4th Cir. 2002), he was merely a passenger in the car. We
disagree. Chong was in a car driven by a co-defendant in a drug
conspiracy when the police tried to stop the car for a traffic
violation. Chong’s co-defendant drove away at a high speed and
soon crashed the car. Because Application Note 5 to § 3C1.2
“limits the defendant’s responsibility for the actions of another,”
we held in Chong that “some form of direct or active participation”
on the part of the defendant is necessary for § 3C1.2 to apply when
the reckless flight is the result of another person’s action. Id.
at 346. Chong’s case was remanded for a determination as to
whether she had any direct involvement in the driver of the car’s
decision to flee in a manner that endangered other persons.
The facts in Collins’ case more closely resemble those in
United States v. Harrison, 272 F.3d 220 (4th Cir. 2001), cert.
denied, 537 U.S. 839 (2002), where the defendant committed a bank
robbery with several accomplices and the aftermath of the robbery
included shots fired at pursuing officers and a high-speed chase
involving two cars and two crashes. Although Harrison held that
the conduct of the appellant’s co-defendants was reasonably
foreseeable, it also relied on the fact that the defendants were
charged with, and pled guilty to, aiding and abetting under 18
U.S.C. § 2, see 272 F.3d at 223, just as did the district court in
this case. Moreover, escape is an integral part of a bank robbery.
- 4 -
Collins actively aided and abetted his co-defendants in the robbery
and the escape, including helping his co-defendants push the
getaway car out of the ditch so they could use it to escape, as
planned. Therefore, the district court did not err in making an
adjustment pursuant to § 3C1.2.
We therefore affirm the sentence imposed by the district
court. 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
- 5 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585430/ | 508 So.2d 1384 (1987)
STATE of Louisiana
v.
Cranford WHEELER.
(In re SOUTH CENTRAL INSURANCE COMPANY).
No. 87-KK-0068.
Supreme Court of Louisiana.
June 30, 1987.
Rehearing Denied September 3, 1987.
*1385 Graymond Martin, New Orleans, for applicant.
William J. Guste, Atty. Gen., Baton Rouge, Harry F. Connick, Dist. Atty., Michael McMahon, Asst. Dist. Atty., New Orleans, Michael O'Farrell, Monroe, Dwight Doskey, New Orleans, Alden Netterville, Gretna, for respondent.
COLE, Justice.
We granted an application by South Central Insurance Company (SCIC) for a writ of certiorari to review the judgment of the Court of Appeal[1] affirming the trial court's denial of SCIC's Motion to Set Aside the Judgment of Bond Forfeiture and Petition for Nullity of Judgment, as surety for Cranford Wheeler. SCIC contends it is not liable on the bail bond, as the bond was rescinded by the trial court, then reinstated without their consent. SCIC further contends defendant Cranford Wheeler was properly surrendered to the trial court, according to La.Code Crim.P. art. 338(A), for the purpose of surety release. Reliance by SCIC is placed upon La.Civ.Code arts. 1892, 3035-3037, and 3063; La.R.S. 15:85(A)(3); and article 338(A) of the La.Code of Criminal Procedure.
We affirm.
ISSUES
The first question presented is whether or not the setting aside of the judgment of bond forfeiture changed the obligation of the surety on the bail contract.
Secondly, we must determine whether or not defendant Cranford Wheeler was properly surrendered under La.Code Crim.P. art. 338, thus releasing the surety of its obligation.
FACTS
On July 31, 1984, Cranford S. Wheeler was charged with violating La.R.S. 32:705. Bail was set at $2,000 and arraignment was scheduled for August 9, 1984. SCIC filed a $2,000 commercial surety bond on August 1, 1984, for defendant's release on bail. Since defendant did not appear in court on August 9, 1984, the court issued a $5,000 alias capias for his arrest, and set a bond forfeiture hearing. Defendant did not appear at the bond forfeiture hearing on September 12, 1984, and the court ordered the bond forfeited. A Notice of Bond Forfeiture was mailed to the surety October 11, 1984.
Subsequently, defendant appeared in court with counsel and pleaded not guilty. This was on December 11, 1984, sixty-one days after the Notice of Bond Forfeiture had been mailed to SCIC. At that time, the court rescinded the September 12, 1984 judgment of bond forfeiture. Trial was set for January 18, 1985. When defendant did not appear in court on that date, another alias capias was issued. On May 28, 1985, the court ordered defendant's bond forfeited in favor of the State of Louisiana, as defendant once again failed to appear before the court. Notice of this forfeiture was mailed on June 7, 1985. Thereafter, SCIC filed their Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment, which was denied by the trial court.
OPINION
SCIC has urged throughout this litigation a judgment of bond forfeiture is a binding civil judgment and its role is that of surety on a civil contract. However, as a commercial surety on a bond for a criminal defendant, SCIC's contract is based on La.Code Crim.P. arts. 323-343, and on La. R.S. 15:81-89, rather than on the articles of the Louisiana Civil Code concerning suretyship in general.
SCIC's first argument is that the bond forfeiture judgment is an ordinary judgment *1386 on a civil obligation and should be governed by La.Code Civ.P. art. 1841, concerning finality of judgments. This does not take into consideration the fact that La.R.S. 15:85(A)(3) allows a bond forfeiture judgment to be set aside when specific requirements are met. A judgment of bond forfeiture is not an ordinary judgment, but is specifically governed by La. R.S. 15:85(A)(1), (3), and La.Code Crim.P. arts. 338 and 339. La.R.S. 15:85(A)(1) allows a judgment of bond forfeiture to be rendered against a defendant and his surety in solido, should defendant fail to appear in court as required.
La.R.S. 15:85(A)(3) provides:
Any judgment forfeiting an appearance bond rendered under the provisions of this Section shall, at any time within sixty days after mailing of notice, be set aside upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon continuance granted upon the motion of the district attorney after such appearance. Upon payment of a bond forfeiture judgment by a surety or agent, such payment shall be placed in a trust account by the appropriate custodian of such forfeiture payments until expiration of the time allowed by law for the surety to return the fugitive to the jurisdiction of the court. If within six months after mailing of notice, the defendant appears or is surrendered to the court, the entire amount of the bond forfeited shall be returned to the surety within 30 days of said appearance or surrender.
Therefore, if certain requirements are met, including a surrender of defendant according to La.Code Crim.P. arts. 338 and 339, the judgment of bond forfeiture may be set aside.
SCIC cites footnote authorities found in Gennuso v. State, 339 So.2d 335, 337 (La.1976), for the proposition that while an action to forfeit a bail bond or to declare null a judgment decreeing the forfeiture of a bail bond is a civil proceeding and subject to the rules of civil procedure, it is treated as a criminal proceeding for the purpose of determining appellate jurisdiction. That is correct. However, we are not dealing with a determination of subject matter jurisdiction as was this court in Gennuso. We are dealing with a different matter entirely, a matter addressed by La.Code Crim.P. arts. 338 and 339, as well as La.R.S. 15:85(A). This action contesting the bond forfeiture judgment is subject to the rules of the Louisiana Code of Criminal Procedure and the Revised Statutes which apply specifically in this case.
SCIC next argues the bail contract was merged into the judgment of bond forfeiture, which when set aside by the trial court extinguished the obligations owed by the surety on the bail contract. We conclude, rather than extinguishing the surety's obligations on the contract, the setting aside of the bond forfeiture judgment placed the surety and defendant in the position they occupied before the bond was forfeited. Citing Salling Wiping Cloth Co. v. Sewell, Inc., 419 So.2d 112, 116 (La.App. 2d Cir.1982), Glazer Steel Co. v. LaRose Shipyard, Inc., 372 So.2d 250, 251 (La.App. 1st Cir.1979), Agricultural Enterprises, Inc. v. Morgan, 140 So.2d 40, 41 (La.App. 2d Cir.1962), and Cassiere v. Cuban Coffee Mills, 225 La. 1003, 74 So.2d 193 (1954), SCIC states in their brief, "It is a rudimentary legal principle that once a judgment on a breach of a bond contract is rendered, all the obligations under that bond contract become extinguished, having been merged into the final judgment." None of the cases cited stand for that principle, as none dealt with a bail bond contract. Sailing was a suit to enforce the acceleration provision of a lease. Glazer was a suit on an open account. Cassiere was a suit to revive a judgment before it prescribed; and, Agricultural Enterprises was a suit to cancel a lease. Reliance upon these cases for the extinguishment of the surety's obligations on the bail bond contract is misplaced. The argument lacks merit.
Next, SCIC contends the court's setting aside of the judgment of bond forfeiture on December 11, 1984, constituted the creation of a new agreement or the extension of the terms of the original agreement *1387 or remission of the debt under the bail contract, releasing the surety. In fact, there was no new or extended agreement made on the bail contract. The bond forfeiture judgment was set aside when defendant appeared in court. He was released on his original bail and the bond was reinstated. This did not change the agreement between defendant and surety, and it certainly did not release either one of them on their obligation. At that point in time, SCIC certainly could not have been displeased with the setting aside of the bond forfeiture. Having escaped the penalty of forfeiture, SCIC now seeks to have it both ways, i.e., set aside the bond forfeiture and then nullify the bond obligation. We do not believe such a result is mandated by law, custom or justice.
Finally, SCIC argues defendant's appearance in court on December 11, 1984 constituted a self-surrender, properly made under La.R.S. 15:85(A)(3) and La.Code Crim.P. art. 338(A), thus releasing the surety from the obligation of the bond and extinguishing the surety contract. Article 338(A) states:
A surety may surrender the defendant or the defendant may surrender himself, to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond. Upon surrender of the defendant, the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety. Thereafter, the surety shall not be responsible for the defendant.
The defendant in this case appeared in court. He did not surrender himself to the officer charged with his detention, as specififed in the article. Even if he had, the time allowed by law for the setting aside of the judgment of bond forfeiture, sixty days from the mailing of the notice of bond forfeiture, had lapsed. Therefore, defendant was never properly surrendered for the purpose of relieving the surety of its obligation on the appearance bond.
For the foregoing reasons stated, we affirm the judgments rendered below.
AFFIRMED.
LEMMON, J., concurs and assigns reasons.
DIXON, C.J., respectfully dissents.
CALOGERO, J., dissents.
DENNIS, J., dissents.
LEMMON, Justice, concurring
When the defendant appeared in court after the bond had been forfeited, the trial court properly set aside the judgment of bond forfeiture. However, the rescinding of the judgment of bond forfeiture did not return the parties to the exact positions they occupied when the original bond was issued. The surety may no longer have wanted to remain on the bond because of the defendant's failure to appear on the date originally set for arraignment, and the difficult question is whether the surety's consent was necessary to release the defendant on the same bond.
If this case involved an uncompensated surety, perhaps fundamental fairness would require notice to and consent of the surety before a defendant who has once "skipped bail" and reappeared voluntarily may be released on the original bond, even if the amount of bail remains the same. However, at least in the case of a commercial surety, who for a fee has guaranteed to produce the accused at any time during the proceedings, notice and consent are not necessary unless there is a change in the charge or in the substance or amount of the bail undertaking.[1]
*1388 When a compensated surety has bound itself that a defendant (according to the Bail Agreement and La.C.Cr.P. 330):
"shall personally appear ... on the day for which he shall be so notified ..., then on whatever day afterwards the said Court shall be held ... and will appear at all stages of the proceedings thereof to answer that charge or any related charge, and will at all times hold himself amenable to the orders and process of the Court",
the mere release of the defendant on the same bond, after he has once failed to appear, does not of itself violate the terms of the bond or terminate the obligation of the surety. See United States v. Jones, 719 F.2d 110 (5th Cir.1983); cf. State v. Thomas, 442 So.2d 794 (La.App. 4th Cir. 1983), cert. denied 445 So.2d 436 (La.1984). Here, there was no change in the charge or in the substance of the bail undertaking. The compensated surety was no worse off when the defendant appeared after forfeiture (apparently on his own initiative) and was released on the same bond than if the defendant had never appeared at all after his initial failure. Therefore, the surety remained obligated on the original bond.
On Application for Rehearing
CALOGERO, Justice.
I would grant a rehearing in this case.
The surety was not a party to the agreement between the principal/defendant and the creditor/State when they agreed to the defendant's release after a judgment setting aside the judgment of bond forfeiture. The surety is not bound by the terms of this later agreement as only the agreement of the surety to be bound on the bail bond after the defendant's re-release could have bound the surety.
NOTES
[1] State v. Wheeler, 449 So.2d 1275 (La.App. 4th Cir.1986).
[1] The ultimate purpose of bail is to deter the flight of the defendant, while allowing the defendant to be released pending trial or appeal. See 10A J. Appleman, Insurance Law and Practice § 6116.15 (1981); see also Comment, Bail, An Ancient Practice Reexamined, 70 Yale L.J. 966 (1961), discussing the modern and historical justifications for release and the relationship to various approaches to bail. The payment of money by the accused, while presumably having a deterrent effect, is not the goal sought by the state.
The American Bar Association's Standards for Criminal Justice questioned whether bail provided by commercial guarantors actually achieves the desired goal of deterring flight by the accused. The 1968 standards recommended that acting as surety for compensation be prohibited. The 1980 standards, while calling for the eventual abolition of compensated sureties, suggested restrictions on licensing and rigid regulation. See Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release § 5.4 (1968); Standards for Criminal Justice, Pretrial Release § 10.5 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585441/ | 508 So.2d 1105 (1987)
Fred CLARK
v.
Debra L. WHITEN.
No. 57162.
Supreme Court of Mississippi.
May 27, 1987.
Rehearing Denied July 15, 1987.
*1106 Frank G. Vollor, Vicksburg, for appellant.
W. Richard Johnson, Vicksburg, for appellee.
Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.
ROBERTSON, Justice, for the Court:
I.
This is a paternity action. On appeal we are presented a challenge to the jury's finding of paternity. The matters of support for the child and the mother's attorneys *1107 fees are also before us. For the reasons discussed below, we affirm in part and reverse in part.
II.
On November 19, 1984, Haywood Montrel Whiten was born to Debra L. Whiten, at that time and now an unmarried female. On or about May 14, 1985, Debra L. Whiten filed in the Chancery Court of Warren County her complaint to establish that Fred Clark, an adult resident citizen of Warren County, was and is the father of her child. See Miss. Code Ann. § 93-9-1 et seq. (1972). In due course, Clark answered, denying the essential allegations of the complaint and demanding trial by jury.
On September 10, 1985, the Chancery Court entered an order transferring the matter to the County Court of Warren County "for all further proceedings and trial by jury."
On November 5, 1985, the matter was called for trial in the County Court. Two days later, on November 7, 1985, the jury returned a verdict finding "Fred Clark to be the natural father of Haywood Montrel Whiten." The jury's verdict also assessed Clark with attorneys fees of $1,000.00.
Pursuant to this jury verdict, the County Court on November 8, 1985, pursuant to this jury verdict entered its order of filiation adjudging Clark to be the natural father of Haywood Montrel Whiten, providing that Clark "will be responsible to Haywood Montrel Whiten as allowed by law." The order further assessed attorneys fees against Clark.
Following the overruling of his motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, Clark has appealed to this Court. He assigns as error the refusal of the County Court to empanel a jury of twelve jurors, the overruling of his motion for a new trial, and the assessment of attorneys fees. Debra L. Whiten has cross-appealed the refusal of the trial court to submit to the jury the issue of support for the minor child or to enter judgment thereon.
III.
Clark first assigns as error the overruling of his request that a twelve person jury be empaneled. It will be recalled that, though originally filed in the Chancery Court, this matter was transferred to the County Court of Warren County following Clark's demand for trial by jury. The County Court, in accordance with the rules generally applicable, proceeded to empanel a jury of only six persons. See Rule 48(b), Miss.R.Civ.P. Clark relies upon Miss. Const. Art. 3, § 31 (1890) and Miss. Code Ann. § 93-9-15 (1972) in support of his claim. Clark confuses the historically familiar with the legally necessary.
To begin with, Rule 48(b) provides for a six person jury in County Court. That rule controls unless it is overriden by superior law. Rule 81(a)(9), Miss.R.Civ.P., provides that, with respect to paternity proceedings such as that before us today, statutory provisions supply the rules of procedure where there is conflict between the two. But when we turn to Section 93-9-15, we see only that defendants such as Clark are entitled to trial by jury. See Metts v. State Department of Public Welfare, 430 So.2d 401, 405 (Miss. 1983). Nothing in the statute in any way suggests the number of jurors that may be required. If Section 93-9-15 provided for twelve jurors, it would override Rule 48(b). As written, however, there is no conflict. Accordingly, Rule 48(b) and its six person juror requirement prevails.
The same result obtains when we examine our constitution. Section 31 provides for trial by jury in civil cases and authorizes further the less than unanimous verdict. Nothing in Section 31, however, mandates juries of twelve persons in the County Court, or any other court. We make this latter comment in the context of Clark's argument that, because his action was originally brought in Chancery Court, the trial by jury requirement applicable to that court controls in the County Court to which the case was transferred "for administrative convenience in empaneling the jury." But there is nothing in the Constitution that requires a jury of twelve. See *1108 Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973). That Jesus of Nazareth had twelve Apostles does not translate into a constitutional requirement that a civil jury number twelve.
The assignment of error is denied.
IV.
Clark next assigns as error that portion of the jury's verdict and order of filiation assessing against him Whiten's attorneys fees in the amount of $1,000.00. He argues that there is an absence of evidence of the "reasonableness of the bill, the value of the services rendered, and the necessity of the time spent."
Miss. Code Ann. § 93-9-45 (1972) provides that, in the event that the court enters an order of filiation declaring the male defendant to be the father of the child, that defendant "shall be taxed ... [with] the cost of the legal services of the attorney representing the petitioner... ." We find implicit in the statute the further requirements that the costs so taxed be reasonable and necessary and that the party claiming these costs prove her entitlement.
Ordinarily, such an assessment could be made by the court without the aid of the jury. The right of trial by jury afforded by Section 93-9-15 applies only to "the issue of paternity." In the present record, however, it appears that Debra asked that the issue of attorneys fees be submitted to the jury. Instruction P-4, which she requested, reads
The Court instructs the jury that if you find Fred Clark to be the natural father of Haywood Montrel Whiten, you are allowed to award Debra L. Whiten reasonable attorneys fees incurred by her in this cause.
This instruction was given by the trial judge and was in fact submitted to the jury. Instruction P-6, a form of the verdict instruction, provided that the jury, if it found for Whiten, might assess "attorneys fees of $ ____." We find on this record that each party waived any right he or she may have had to have the fee issue resolved by the court sans jury assistance.
The evidence reflects that Whiten had a fee arrangement with her attorney wherein he would charge her $50.00 per hour for his services. The record reflects a statement for services rendered dated November 4, 1985 the day before the trial began wherein counsel charged Whiten for twenty and a half hours at $50.00 per hour for a total fee of $1,025.00. The problem lies in the fact that there is not one word in the record that suggests to the jury that the hours spent were necessary, that the hourly rate was reasonable.
No doubt there has been a certain air of gratuity in our Court's attitude toward fee requests in the past. Having been lawyers before we became judges and having some familiarity with such matters, we frequently succumb to the temptation to say that we know whether a fee is reasonable. And there may well be cases where the issue is submitted to the judge sitting without a jury where such an attitude may be practical and desirable.
Still our more thoughtful cases make clear that an attorneys fee claim has factual components that must be proved. See Craft v. Craft, 478 So.2d 258, 264 (Miss. 1985); McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). One of those components is "the customary charge in the community." Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985). If this is so where the trial judge is the fact finder, it is more so where the facts are to be found by a jury. Jurors may not be presumed to know what fees are reasonable and necessary.
Where the question of an award of attorneys fees is being submitted to the jury as the trier of fact, the party seeking the fee must prove, inter alia, the reasonable necessity of the rendering of the services and spending the amount of time for which the fee is charged, as well as the reasonableness of the hourly rate. See Mercy Hospital v. Johnson, 431 So.2d 687, 688 (Fla.App. 1983); Parker, Lamb & Ankuda, P.C. v. Krupinsky, 146 Vt. 304, 503 A.2d 531 (1985); see also Neely v. City of Grenada, 624 F.2d 547 (5th Cir.1980). Frequently *1109 this is done by the calling of another attorney in the community who is familiar with the type of case and the rates customarily charged for similar services and who then provides the necessary opinion testimony. Such proof may also be made by the attorney whose fee is claimed. So long as a proper foundation is laid, the attorney representing the fee applicant or any other attorney may provide the evidentiary foundation for reasonableness and necessity. Absent such foundation, however, the jury is necessarily left to guess and speculate.[1]
In sum, this assignment of error is well taken. Insofar as the judgment below order that Clark pay attorneys fees to Whiten, the judgment is reversed and rendered.
V.
Clark challenges the jury's verdict on an additional ground. He argues that it was contrary to the weight of the evidence. Although his argument is less than crystal clear on the point, we do not understand Clark to be arguing that the evidence was insufficient as a matter of law and that a verdict should have been directed in his favor. Rather, the effect of Clark's assignment of error is that the trial court abused its discretion in refusing to order a new trial.
The child was born on November 19, 1984. Whiten testified that she had sexual relations with Clark only from July 1983 until after the birth of the child. At another point she testified that she had no sexual contact with any other male for more than ten months prior to the birth of the child. Despite Clark's effort to establish that Whiten was involved with other men, Whiten's testimony was not so incredible that we would deny her the privilege of having the jury's obvious conclusion credited.
We consider further the fact that at the trial held almost a year following the birth of the child, the jury viewed the child. While there is no doubt a common sense problem with placing too much reliance upon this factor, it is certainly a practice to be encouraged, one which, given what we know about the genetic passage from father to child of certain physical characteristics, may be most valuable efforts in the search for the truth in this most sensitive area.
Under the circumstances it is neither necessary nor appropriate that we recount further details regarding the testimony of the parties. The evidence was more than adequate to support the jury's verdict. The trial court was well within its discretion in denying Clark's motion for a new trial. Thornhill v. Wilson, 504 So.2d 1205, 1208-09 (Miss. 1987) (not yet reported); Maryland Casualty Co. v. City of Jackson, 493 So.2d 955, 961 (Miss. 1986); Adams v. Green, 474 So.2d 577, 582 (Miss. 1985); Rule 59, Miss.R.Civ.P. The assignment of error is denied.
VI.
Finally we reach Whiten's cross-appeal on the matter of support for the minor child. Here it appears that Whiten requested two jury instructions, Nos. P-3 and P-5, each of which would have submitted the question of support.[2] These instructions were refused. Her form of the verdict instructions was likewise refused.
As a matter of law, the father of a child born out of lawful matrimony
is liable to the same extent as the father of a child born of lawful matrimony, ..., for the reasonable expense of the mother's pregnancy and confinement, and for the education, necessary support and maintenance and medical ... expenses of the child.
Miss. Code Ann. § 93-9-7 (1972).
The act further provides that an order of filiation declaring paternity
*1110 shall specify the sum to be paid weekly or otherwise... for the support and education of the child and... for the support of the child prior to the making of the order.
Miss. Code Ann. § 93-9-29 (1972).
Ordinarily, the issue of support and maintenance should be resolved by the court without aid of a jury. As indicated above in our discussion of the issue of attorneys fees, the statute makes trial by jury available only on the issue of paternity. Miss. Code Ann. § 93-9-15 (1972). Again, however, where the party such as Debra L. Whiten seeks to have the issue submitted to the jury, and in effect waives the right to have the issue considered by the court alone, we have no mind to interfere.
From the record it is apparent that the trial court was of the view that Whiten's proof was insufficient both with respect to the ability of Clark to pay and with respect to the needs of Whiten for the support of the minor child. For this reason the trial court in effect declined to submit the issue to the jury.[3] Further the trial court refused to submit Instruction P-6, a form of the verdict instruction, which would have told the jury how it should have returned a verdict on the matter of support.
Our review of the record makes clear that Clark has reasonable assets and resources out of which he should be able to provide reasonable and necessary support for the child. Clark admits that he has "made a comfortable living." He owns a home on ten acres of land in Vicksburg. He has owned a grocery store on a single acre lot, several rental houses as well as other property. He has an interest in several businesses and as well owns a variety of items of heavy equipment.
On the other hand, without going into detail, we consider that the evidence offered by Whiten was sufficient with respect to the needs of the child. Because the evidence was such that reasonable jurors could not have refused to provide an award for the necessary support and maintenance of the child, the trial court erred in refusing to submit these matters to the jury. In this sense, we sustain the cross-appeal and reverse and remand.
The matter of the expenses of the mother's pregnancy and confinement is otherwise. The trial court correctly held that Whiten's proof was insufficient to have this question submitted to the jury.
Our order of remand shall be to the Chancery Court of Warren County, not the County Court. This matter was originally brought in the Chancery Court. That court undoubtedly had subject matter jurisdiction of this cause as well as in personam jurisdiction of the parties. The transfer of jurisdiction to the County Court was by reason of the demand for jury trial. Such an order of transfer was well within the authority of the Chancery Court although it was by no means compelled. Chancery courts in matters such as this have as much authority to hold trial by jury as do circuit or county courts. Indeed, because of the peculiar experience and expertise of Chancery Courts in matters regarding the support and maintenance of children, it may well be advisable for Chancery Courts to entertain paternity actions such as this in their entirety, making no transfer, although we make clear that these comments should not be construed as suggesting any lack of discretion on the part of the Chancery Court to transfer the jury issue to the County Court.
The very nature and purpose of the Mississippi Uniform Law on Paternity, Miss. Code Ann. § 93-9-1, et seq. (1972), is to make such orders as may be necessary to *1111 provide for the support, education and maintenance of children born out of wedlock, lest these children become public charges. In that we have found no error in the jury's verdict and order of filiation insofar as that order declares Clark the father of the minor child subject to these proceedings, it would be anomalous indeed if we were to affirm with Clark having no obligation of support. It is in this context that we have found that Whiten offered sufficient evidence of Clark's ability to pay and the child's reasonable needs so that the matter should have been resolved by the court below in favor of an order for support. On the cross-appeal we reverse and remand to the Chancery Court of Warren County, Mississippi, for determination of the support obligations of the father pursuant to Miss. Code Ann. § 93-9-7 (1972) and for entry of a final order of filiation providing for the support, education and expenses of the child as provided in Miss. Code Ann. § 93-9-29 (1972).
ON DIRECT APPEAL, AFFIRMED IN PART, REVERSED AND RENDERED IN PART; ON CROSS-APPEAL, REVERSED AND REMANDED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.
NOTES
[1] Nothing said here should preclude resort to judicial notice as a means of establishing one or more of the components of the fee claim. See Rule 201, Miss.R.Ev., effective January 1, 1986.
[2] Arguably these instructions were in less than perfect form. This is a context in which the trial judge has a duty to reform the instructions to assure that the issue of support is submitted to the jury. See Byrd v. McGill, 478 So.2d 302, 305 (Miss. 1985).
[3] The record reflects that the trial court did grant Instruction P-2 which instructed the jury in the general proposition of law that
the father of a child which is born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony for the reasonable expense of the mother's pregnancy and confinement, and for the education, necessary support and maintenance, and medical expenses of the child.
This instruction is merely declaratory of the law and fails to instruct the jury what it should do about the matter. As indicated above, however, the trial court refused to submit Instructions P-3 and P-6 which would have further explained the father's obligation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585448/ | 24 So.3d 917 (2009)
STATE of Louisiana, Appellee
v.
Ronnie Joe BROOKS, Jr., Appellant.
No. 44,730-KA.
Court of Appeal of Louisiana, Second Circuit.
September 23, 2009.
*918 Richard Goorley, for Appellant.
Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Tammy G. Jump, Assistant District Attorneys, for Appellee.
Before STEWART, PEATROSS and MOORE, JJ.
MOORE, J.
The defendant, Ronnie Joe Brooks, Jr., was convicted of aggravated burglary, a violation of La. R.S. 14:60, on November 18, 2008. The trial court denied the defendant's motions for post verdict judgment of acquittal and new trial and sentenced the defendant to 10 years at hard labor. The trial court denied the defendant's motion to reconsider sentence. Brooks now appeals. For the following reasons, we modify the verdict, render a judgment of conviction of simple burglary of an inhabited dwelling pursuant to La. R.S. 14:62.2, and remand for resentencing.
FACTS
After committing a burglary with an accomplice, Codaro Dunn, in the home of the victim, Melissa Flournoy, the defendant was momentarily seized by the victim's boyfriend, Joseph Daniel Smart ("Smart"), in her backyard, approximately 45 feet from the house. The defendant bit Smart and continued fleeing, only to be twice seized again by Smart until the police arrived and arrested him.
The state charged the defendant by bill of information with aggravated burglary on grounds that the defendant committed a battery "while leaving" the victim's premises. A jury returned a verdict of guilty as charged. The defendant now appeals his conviction.
DISCUSSION
The issue generated by these facts is whether the battery committed by the defendant, when he was caught in the yard of the inhabited dwelling from which he was fleeing, can form the basis of an aggravated burglary charge within the meaning of La. R.S. 14:60, which provides:
Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.
(Emphasis supplied).
Battery is defined by La. R.S. 14:33 as "the intentional use of force or violence upon the person of another."
Ms. Flournoy testified that she did not know either the defendant or codefendant, *919 and that neither had permission to enter her house. After the police called her about the burglary, she returned home to discover that her children's electronic toys and games had been taken and other items were broken and shattered.
Smart also testified that he immediately noticed that the X-box video game was missing when he entered the house and discovered it had been burglarized. After the police came and left, Smart left the home for a few minutes and after he returned he heard the intruders upstairs. Moments later, he saw the defendant stepping out the back door. The defendant saw that Smart had observed him and began running. Smart testified that he caught the defendant about 45 feet from the house in the victim's backyard bushes. During the tussle, the defendant bit Smart on the arm.
In order to sustain the conviction for aggravated burglary, we must conclude that the defendant committed the battery while "leaving such place." Smart testified that he first saw the defendant on the back porch, stepping out the back door. Brooks then fled. The biting, which clearly is a species of battery, occurred nearly 50 feet from the dwelling. After careful consideration of the statutory language, we conclude that the battery in this case does not meet the statutory requirement of occurring while "leaving such place."
It is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. Thus, criminal statutes are given a narrow interpretation and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the state. State v. Carr, 1999-2209 (La.5/26/00), 761 So.2d 1271. State v. Newton, 42,743 (La. App. 2 Cir. 12/19/07), 973 So.2d 916, writ denied, XXXX-XXXX (La.1/16/09), 998 So.2d 90.
The words "such place" in part (3) refer to the "inhabited dwelling, or of any structure, water craft, or movable where a person is present" earlier stated in the first paragraph. Our jurisprudence is settled that to constitute an "inhabited dwelling," a person must live in the dwelling, but the person need not be present in the inhabited dwelling at the time of the burglary. State v. Hall, 35,151 (La.App. 2 Cir. 9/26/01), 796 So.2d 164. Moreover, it is also settled that a yard, even when fenced, does not constitute a "structure" under our burglary statutes. State v. Alexander, 353 So.2d 716 (La.1977).
Our construction of the statutory phrase "Commits a battery upon any person while in such place, or in entering or leaving such place" indicates that the legislature contemplated circumstances in which there is a close connection between the battery and the structure,[1] such as when a burglar commits a battery on a victim to gain entry to the inhabited dwelling or structure, or commits a battery while within the structure, or commits a battery on a victim in order to leave the structure. In other words, there needs to be a relationship between the battery and either the burglar's entry into, exit from, or presence in the structure. Once the burglar has exited the structure, the crime is complete.
Not surprisingly, we have been unable to locate a single case involving a conviction or charge for aggravated burglary where a battery was committed after the *920 defendant left the structure. We consider this validation that the charge of aggravated burglary was not appropriate under these facts.
We therefore conclude that the evidence does not satisfy every element of aggravated burglary. On the other hand, we find that the evidence does satisfy the elements of simple burglary of an inhabited dwelling under La. R.S. 14:62.2, which is a responsive verdict to the crime charged. La. C. Cr. P. art. 814(42). Simple burglary of an inhabited home is the unauthorized entering of any dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60. La. R.S. 14:62.2. The evidence shows that the codefendants entered the victim's home with the intent to commit a theft within and indeed committed the theft. The defendant was seen exiting the home and subsequently caught. Hence, the evidence will support a conviction for the lesser included responsive offense of simple burglary of an inhabited dwelling. Judgment will be rendered accordingly. Entry of this lesser verdict necessarily requires remanding for resentencing.
We note that defendant's counsel requested that we reverse the trial court's ruling on Brooks' motion for post verdict judgment of acquittal and, alternatively remand for a new trial. We deem that a new trial is unnecessary since the evidence supports a conviction for the responsive offense as stated above. See State v. Scott, 41,690 (La.App. 2 Cir. 1/24/07), 948 So.2d 1159.
Conclusion
For the reasons stated above, we modify the verdict of aggravated burglary and render a judgment of conviction of simple burglary of an inhabited dwelling. We vacate the sentence for aggravated burglary and remand for resentencing on the conviction of simple burglary of an inhabited dwelling.
VERDICT MODIFIED; JUDGMENT OF CONVICTION OF SIMPLE BURGLARY OF AN INHABITED DWELLING RENDERED, ORIGINAL SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
NOTES
[1] For ease in reading, we shall hereinafter use the term "structure" as synonymous with "inhabited dwelling," and inclusive of any of the other structures, such as "water craft" or "vehicle," etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585451/ | 815 F.Supp. 1421 (1993)
PETROLEUM PRODUCTS, INC., formerly doing business as Burke Energy Corporation, Plaintiff,
v.
MID-AMERICA PIPELINE COMPANY a Delaware Corporation, Defendant.
Civ. A. No. 90-1452-FGT.
United States District Court, D. Kansas.
February 24, 1993.
*1422 Thomas A. Dower, Reynolds, Peirce, Forker, Suter & Rose, Hutchinson, KS, for Petroleum Products, Inc.
John P. Woolf, Triplett, Woolf & Garretson, Wichita, KS, Royse M. Parr, Mid-America Pipeline Co., Tulsa, OK, W. Michael Shinkle, Davenport, IA, Calvin L. Wiebe, Wichita, KS, for Mid-America Pipeline Co., Inc.
MEMORANDUM AND ORDER
THEIS, District Judge.
This matter is before the court on defendant's motion for summary judgment. (Doc. 41). Defendant argues in support of its motion that plaintiff cannot prove a cause of action for conversion and that the claim would be barred by the applicable statute of limitations.
The plaintiff, Petroleum Products, Inc., while doing business under the name of Burke Energy Corporation ("Burke"), entered into a contract with Pester Refining Company, Inc. ("Pester") for Burke to sell to Pester certain quantities of natural gas liquids ("NGLs"). Defendant, Mid-America Pipeline Company ("Mid-America"), is an interstate common carrier of NGLs. In January and February 1985 Mid-America received the NGLs from Burke for the purpose of transporting them in its pipeline system to Pester.
On or about February 25, 1985, Pester filed for bankruptcy protection in Iowa. Pester had not paid for the NGLs it had agreed to purchase from Burke. On March 3, 1985, Burke notified Mid-America that it wished to exercise its right under the Uniform Commercial Code ("UCC") to stop transfer and delivery of its NGLs. Pester demanded that the NGLs be delivered to it. Some of the NGLs had already been delivered to Pester, but Mid-America agreed to return the portion of Burke's NGLs still in Mid-America's possession. However, Mid-America would return the NGLs only upon receipt from Burke of an indemnity and hold harmless agreement and an irrevocable letter of credit to ensure payment of any damages and expenses resulting from the stoppage of delivery. Burke agreed to indemnify Mid-America and hold it harmless for any liability, but did not agree to provide a letter of credit.
On March 8, 1985, Mid-America sent a letter to Burke stating that without the financial security requested, it would be unable to return the NGLs pending a final court judgment on the issue of who as entitled to possession of the NGLs. The dispute had been raised in the bankruptcy action and resulted in lengthy litigation in the Bankruptcy Court, with certain issues appealed to the Eighth Circuit Court of Appeals. In re Pester Refining Co., 845 F.2d 1476 (8th Cir. 1988). On August 12, 1988, the Bankruptcy Court ordered Mid-America to immediately return to Burke its NGLs. Mid-America returned the products to Burke on September 8, 1988.
Plaintiff filed the instant action on September 7, 1990, alleging that defendant's failure to redeliver the NGLs upon plaintiff's request constitutes conversion. Defendant counterclaimed for the costs of redelivery and litigation. Defendant moves for summary judgment on plaintiff's claim against it. Defendant argues that it was acting within its rights in holding the NGLs and that, therefore, its actions did not constitute conversion. Furthermore, defendant argues that the plaintiff's claim is barred by the applicable statute of limitations.
The court is familiar with the standards governing the consideration of a motion for summary judgment. The Federal Rules of Civil Procedure provide that summary judgment is appropriate when the documentary *1423 evidence filed with the motion "show[s] 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). A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. ..." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The parties agree on all the facts for purposes of this motion. The parties also agree that Kansas law governs this case.
I. The Parties' Rights Under the Uniform Commercial Code
In this case plaintiff sought to exercise its right under the UCC to stop delivery upon learning that Pester had filed for bankruptcy protection. K.S.A. § 84-2-705. The relevant portions of K.S.A. § 84-2-705 state as follows:
(1) The seller may stop delivery of goods in the possession of a carrier or other bailee when he discovers the buyer to be insolvent....
(3)(a) To stop delivery the seller must so notify as to enable the bailee by reasonable diligence to prevent delivery of the goods.
(b) After such notification the bailee must hold and deliver the goods according to the directions of the seller but the seller is liable to the bailee for any ensuing charges or damages.
Defendant believed delivering the goods according to plaintiff's directions could result in liability to Pester. Accordingly, defendant refused to redeliver the goods until it received from plaintiff what defendant considered adequate assurances and financial security or until the bankruptcy court resolved the matter.
The issue is whether defendant had the right to hold the NGLs until it received an irrevocable letter of credit from plaintiff or until the bankruptcy court reached a final decision. The court believes that defendant had no right to demand assurances or security. K.S.A. § 84-2-705(3)(b) provides that the bailee must deliver the goods according to the seller's directions and that the seller is liable to the bailee for any damages. There is neither any need nor any authority under that section for assurances from the seller that it will indemnify the bailee for damages. The seller automatically undertakes the duty to indemnify when it stops delivery.
Defendant claims that it had the right to demand financial security in this case because Pester was asserting that it had a right to have the NGLs delivered according to the contract. K.S.A. § 84-7-603 gives the bailee options when faced with conflicting claims to the merchandise.[1] Nowhere does the UCC provide for the option that defendant seeks in this case.
The UCC provides sufficient protection for a bailee in a situation like the one involved in this case. Mid-America had no right to go beyond its UCC options and demand an irrevocable letter of credit before performing its duty under K.S.A. § 84-2-705(3)(b).
However, defendant had the right to hold the NGLs pending the outcome of the adversarial proceedings before the bankruptcy court. Under K.S.A. § 84-7-603, if more than one party claims entitlement to goods, the bailee in possession is permitted to hold the goods and bring an interpleader action to determine the validity of the competing claims. The defendant did not bring an interpleader action in this case, but the bankruptcy court had before it the issue of who was entitled to possession of the NGLs. *1424 Bringing an interpleader action, therefore, would have served no useful purpose. Because such an action would have involved the same parties and the same issues already before the bankruptcy court, the defendant was not obligated to bring an interpleader action. Northwestern Nat'l Sales, Inc. v. Commercial Cold Storage, Inc., 162 Ga.App. 741, 293 S.E.2d 30 (Ga.App.1982). Therefore, defendant had the right to hold the goods until August 12, 1988, when the bankruptcy court ordered defendant to immediately return the NGLs to plaintiff.
II. Statute of Limitations
The parties agree that the statute of limitations applicable to this action is two years. K.S.A. § 60-513(a)(2). Plaintiff filed its Complaint on September 7, 1990. The only question, then is whether plaintiff's cause of action accrued before September 7, 1988. Plaintiff contends that the cause of action accrued on September 8, 1988, when defendant redelivered the NGLs to plaintiff. Defendant offers several alternatives for when plaintiff's cause of action might have accrued, the latest of which is August 12, 1988, the date of the bankruptcy court's final order.
Conversion is an unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other's rights. Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, 500, 701 P.2d 934 (1985). A cause of action in conversion arises "when substantial injury first appears or when it becomes reasonably ascertainable." Clark Jewelers v. Satterthwaite, 8 Kan.App.2d 569, syl. ¶ 6, 662 P.2d 1301 (1983).
According to plaintiff, it did not know until the NGLs were returned whether it had sustained any damages. Because the price of NGLs fluctuates, the possibility existed that the NGLs would be worth more when returned than when converted, thus leaving plaintiff undamaged. Plaintiff's argument reveals a misunderstanding of the tort of conversion. An action in conversion protects the right of possession as well as the right of disposal or the right to make a profit on resale. If the defendant violated plaintiff's right to possess, it was at the time defendant's possession became unlawful, not when it relinquished its unlawful possession. Plaintiff knew that defendant had possession of the NGLs and asserted long before September 8, 1988, that defendant's possession was unlawful.
Moreover, a cause of action generally accrues as soon as the plaintiff could have first filed and prosecuted the action to a successful completion. Clark Jewelers, 8 Kan.App.2d at 569, syl. ¶ 5. Certainly the rightful owner of goods can bring an action in conversion without first waiting for the tortfeasor to return the goods. Otherwise the tortfeasor could remain immune from suit by continuing to hold the converted goods.
In support of its position, plaintiff cites Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986), in which the Kansas Supreme Court held that a cause of action for legal malpractice accrues when the journal entry from the underlying action is filed. If Pancake House is analogous at all, it only shows that plaintiff's conversion claim is barred because it was not brought within two years of the bankruptcy court's final order.
If the defendant committed conversion at all, it did so no later than August 12, 1988. The plaintiff brought this action more than two years later. Therefore, action is barred by the applicable statute of limitations. Because there is no factual dispute and the law clearly supports defendant's position, defendant is entitled to summary judgment.
IT IS BY THIS COURT THEREFORE ORDERED that defendant's motion for summary judgment (Doc. 41) is hereby granted.
NOTES
[1] K.S.A. § 84-7-603 states as follows:
Conflicting claims; interpleader. If more than one person claims title or possession of the goods, the bailee is excused from delivery until he has had a reasonable time to ascertain the validity of the adverse claims or to bring an action to compel all claimants to interplead and may compel such interpleader, either in defending an action for nondelivery of the goods, or by original action, whichever is appropriate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2695528/ | [Cite as Yeager v. Richland Correctional Inst., 2010-Ohio-6670.]
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
ANDRE M. YEAGER
Plaintiff
v.
RICHLAND CORRECTIONAL INSTITUTION
Defendant
Case No. 2010-05099-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} 1) Plaintiff, Andre Yeager, a former inmate incarcerated at defendant,
Richland Correctional Institution (RiCI), filed this action alleging his personal property
was confiscated by RiCI staff on November 25, 2008 and subsequently destroyed as
contraband without obtaining proper authorization to carry out the destruction. Plaintiff
claimed defendant’s personnel violated internal regulations when charging him with
possession of contraband and disposing of the declared contraband items. Plaintiff
seeks damages in the amount of $310.32, the stated replacement value of the
confiscated property which included clothing, books, personal hygiene items, food
products, and other sundry items. The filing fee was paid.
{¶ 2} 2) Attached with his complaint, plaintiff submitted a copy of a “Conduct
Report” he was issued on November 25, 2008 incident to RiCI staff confiscating his
property. According to information in the “Conduct Report,” the property was
confiscated due to the fact plaintiff possessed excessive items which did not comply
with defendant’s internal restrictions regarding volume limitations (2.4 cubic feet). Also
submitted with his complaint was a “Contraband Control Slip” plaintiff was issued when
his property was confiscated on November 25, 2008. Confiscated property items listed
on this “Contraband Control Slip” include the following: five boxer shorts, one towel, two
socks, one set of headphones, one bowl, one rice, two sweat pants, two wash cloths,
four t-shirts, and two books.
{¶ 3} 3) Plaintiff submitted a copy of a “Disposition of Grievance” dated
January 16, 2009, in which the RiCI Inspector denied plaintiff’s grievance regarding the
confiscation and disposition of his property. According to information contained in this
“Disposition of Grievance,” plaintiff was afforded the option to either authorize the
mailing of the confiscated property to an outside address or have the confiscated
property destroyed. Furthermore, it was noted that plaintiff made no decision
concerning the disposition of the confiscated items. Plaintiff also submitted a copy of
his grievance appeal dated February 9, 2009 in which defendant’s Chief Inspector found
plaintiff was given the opportunity to either mail out the confiscated items or have the
items destroyed when the charges in his November 25, 2008 “Conduct Report” were
heard. The Chief Inspector found plaintiff “refused to give an answer as to what you
wanted to do with it (confiscated property).” Plaintiff specifically denied charges in the
“Conduct Report” he was issued were ever heard by defendant’s “Rules Infraction
Board (RIB).” Plaintiff asserted the confiscated property was subsequently destroyed
by RiCI staff without obtaining proper authorization.
{¶ 4} 4) Defendant acknowledged five under shorts, one towel, four t-shirts, 1
set of headphones, one bowl, one rice, two sweat pants, two wash cloths, two books,
and two socks were confiscated from plaintiff’s possession on or about November 25,
2008 by RiCI staff. Defendant also acknowledged the confiscated property items were
subsequently destroyed three months later. Defendant asserted plaintiff was afforded
an opportunity to authorize the mailing of the confiscated property, but refused to make
any choice in regard to the disposition of the confiscated property. Defendant argued
plaintiff cannot maintain an action for the value of the destroyed property since the
property was declared contraband and therefore plaintiff had no right to possess
contraband. Defendant pointed out plaintiff claimed RiCI staff confiscated other
property not listed on the “Contraband Control Slip.” This property claimed consisted
mostly of food products and personal hygiene items. Defendant stated, “Plaintiff has
failed to provide verification of legitimate ownership to the property claimed to be
confiscated.” In regard to the known confiscated property, defendant contended RiCI
staff acted properly and in accordance with internal policy when hearing the charges
against plaintiff contained in the November 25, 2008 “Conduct Report.” Defendant
explained the “Conduct Report” was heard by RiCI employee, Sergeant Burkhart after
being issued by RiCI employee, Correctional Officer Rose. Defendant further explained
that although the “Conduct Report” was referred to RIB for disposition, it was not
processed through RIB. Defendant pointed out the “Conduct Report,” after being heard
by Sergeant Burkhart, was affirmed by RIB with no participation by plaintiff. Defendant
offered that plaintiff refused to participate in the initial hearing of the charges before
Sergeant Burkhart. Defendant asserted Sergeant Burkhart acted appropriately in
conducting proceedings on the “Conduct Report” ex parte since plaintiff refused to
participate. Defendant did not provide any documentation produced by Sergeant
Burkhart in regard to any hearing officer report. Defendant did not produce any
documents showing plaintiff was afforded an opportunity to mail out the confiscated
property. Defendant did not produce a statement from Burkhart.
{¶ 5} 5) Plaintiff filed a response insisting he was not given an opportunity to
participate in the hearing of the “Conduct Report” by sergeant Burkhart. Plaintiff again
asserted defendant failed to follow internal regulations when hearing the “Conduct
Report.” Plaintiff maintained Sergeant Burkhart under defendant’s administrative
regulations was prohibited from providing any disposition in reference to the charges in
the “Conduct Report.” Furthermore, plaintiff argued defendant failed to follow proper
procedure when destroying the confiscated property. Plaintiff claimed he was never
given an opportunity to mail the confiscated property and also claimed the confiscated
items were destroyed three days after the confiscation occurred. Plaintiff advised
defendant failed to follow internal regulations when destroying the confiscated property
by not obtaining a forfeiture order prior to carrying out the destruction of the declared
contraband. Plaintiff contended that since defendant did not have proper authority to
destroy the confiscated items, liability has consequently, been established. Plaintiff
produced evidence to establish defendant confiscated five under shorts, one towels,
four t-shirts, one set of headphones, one bowl, one rice, two socks, two sweat pants,
two wash cloths, and two books from his possession on November 25, 2008. Plaintiff
did not produce any evidence other than his own assertion to prove any additional
property was confiscated by defendant on November 25, 2008.
CONCLUSIONS OF LAW
{¶ 6} 1) This court in Mullett v. Department of Correction (1976), 76-0292-AD,
held that defendant does not have the liability of an insurer (i.e., is not liable without
fault) with respect to inmate property, but that it does have the duty to make “reasonable
attempts to protect, or recover” such property.
{¶ 7} 2) Although not strictly responsible for a prisoner’s property, defendant
had at least the duty of using the same degree of care as it would use with its own
property. Henderson v. Southern Ohio Correctional Facility (1979), 76-0356-AD.
{¶ 8} 3) Plaintiff has the burden of proving, by a preponderance of the
evidence, that he suffered a loss and that this loss was proximately caused by
defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD.
{¶ 9} 4) Prison regulations, including those contained in the Ohio
Administrative Code, are “primarily designed to guide correctional officials in prison
administration rather than to confer rights on inmates. State ex rel. Larkins v. Wilkinson,
79 Ohio St. 3d 477, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v. Conner (1995),
515 U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 419. Additionally, this court held
that “even if defendant had violated the Ohio Administrative Code, no cause of action
would exist in this court. A breach of internal regulations in itself does not constitute
negligence.” Williams v. Ohio Dept. of Rehab. and Corr. (1993), 67 Ohio Misc. 2d 1, 3,
643 N.E. 2d 1182. Accordingly, to the extent plaintiff alleges that RiCI staff failed to
comply with internal prison regulations and the Ohio Administrative Code, he fails to
state a claim for relief.
{¶ 10} 5) Plaintiff’s failure to prove delivery of claimed missing property to
defendant constitutes a failure to show imposition of a legal bailment duty on the part of
defendant in respect to lost property. Prunty v. Department of Rehabilitation and
Correction (1987), 86-02821-AD. Plaintiff has failed to prove defendant exercised
control over any property not listed on the “Contraband Control Slip” (dated November
25, 2008).
{¶ 11} 6) Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish defendant actually assumed control over the property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068.
{¶ 12} 7) In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess, among different possibilities, as to any
essential issue in the case, he fails to sustain the burden as to such issue. Landon v.
Lee Motors, Inc. (1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 2d 147.
{¶ 13} 8) The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.
2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is
free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill
(1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court finds plaintiff’s
assertions persuasive regarding the failure of defendant to provide him an opportunity to
mail out the known confiscated property. The court does not find defendant’s assertions
persuasive in regard to the contention plaintiff was given an opportunity to mail out the
items contained on the “Contraband Control Slip.”
{¶ 14} 9) It has been previously held an inmate plaintiff may recover the value
of confiscated contraband property destroyed by agents of defendant when those
agents acted without authority or right to carry out the property destruction. Berg v.
Belmont Correctional Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent.
Correctional Inst., Ct. of Cl. No. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland
Correctional Inst., Ct. of Cl. No. 2005-07976-AD, 2006-Ohio-358. In the instant claim,
plaintiff has proven his confiscated property (listed on the November 25, 2008
“Contraband Control Slip”) was destroyed by RiCI staff without authorization and
consequently, defendant is liable for the destroyed property.
{¶ 15} 10) The standard measure of damages for personal property loss is
market value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d
40, 644 N.E. 2d 750.
{¶ 16} 11) As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility
(1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160.
{¶ 17} 12) Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
{¶ 18} 13) Plaintiff has suffered damages in the amount of $125.00.
{¶ 19} 14) The $25.00 filing fee may be reimbursed as compensable costs
pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
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
ANDRE M. YEAGER
Plaintiff
v.
RICHLAND CORRECTIONAL INSTITUTION
Defendant
Case No. 2010-05099-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE
DETERMINATION
Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of plaintiff in the amount of $150.00, which includes the filing fee. Court costs are
assessed against defendant.
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Andre M. Yeager Gregory C. Trout, Chief Counsel
1334 Elwood Department of Rehabilitation
East Cleveland, Ohio 44112 and Correction
770 West Broad Street
Columbus, Ohio 43222
RDK/laa
11/3
Filed 11/23/10
Sent to S.C. reporter 2/18/11 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/846689/ | Order Michigan Supreme Court
Lansing, Michigan
March 27, 2006 Clifford W. Taylor,
Chief Justice
130040 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DONNELDA THOMPSON, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 130040
COA: 262840
Macomb CC: 2003-004278-CZ
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the October 27, 2005
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 27, 2006 _________________________________________
s0320 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299352/ | 616 S.E.2d 664 (2005)
Joanne H. MURROW and Rebecca H. Mathis, Plaintiffs,
v.
Nancy HENSON and Bonnie H. Gallo, Defendants.
No. COA04-1558.
Court of Appeals of North Carolina.
August 16, 2005.
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, Greensboro, for plaintiffs-appellants.
Bell, Davis & Pitt, P.A., by William K. Davis and Stephen M. Russell, Winston-Salem, for defendants-appellees.
GEER, Judge.
Plaintiffs Joanne H. Murrow and Rebecca H. Mathis appeal the order of the trial court dismissing their claim that defendants Nancy Henson and Bonnie Gallo maliciously caused their step-grandmother to execute a will that left plaintiffs only nominal bequests. We hold that plaintiffs' complaint sufficiently states a claim for relief under Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967) and Griffin v. Baucom, 74 N.C.App. 282, 328 S.E.2d 38, disc. review denied, 314 N.C. 115, 332 S.E.2d 481 (1985) and, therefore, reverse the decision below.
Facts
Plaintiffs and defendants are all step-grandchildren of Rebecca Barnhill Hundley, who died on 6 January 2004. On 5 August *665 2004, plaintiffs filed a complaint for damages against defendants, alleging claims for alienation of affections and for tortious interference with prospective advantage. At the motion to dismiss hearing, plaintiffs conceded that their claim for alienation of affections should be dismissed. This appeal involves only plaintiffs' cause of action for tortious interference with prospective advantage.
Plaintiffs' complaint included the following pertinent allegations:
5. For many years it had been the intent and purpose of the deceased [Rebecca Barnhill Hundley] to divide everything she had received from her late husband, George L. Hundley, equally among his grandchildren, the plaintiffs, the defendants, Robert S. Foster, Jr., and Georgette F. Hedrick.
6. Defendants imposed upon Rebecca Barnhill Hundley, and gave her false and defamatory information about plaintiffs that turned her against them and predisposed her to execute a new will providing for only nominal bequests to plaintiffs. Defendants also by the same process induced and influenced Rebecca Barnhill Hundley to make substantial and favorable inter vivos gifts to them, and to diminish and eventually eliminate inter vivos gifts to plaintiffs from her.
. . . .
10. By means set forth above, defendants maliciously induced Rebecca Barnhill Hundley to reduce and eventually eliminate gifts that she had making [sic] and would have made to plaintiffs, and to eliminate plaintiffs as substantial beneficiaries under her will.
. . . .
16. Specifically, plaintiffs had legitimate and bona fide expectations of benefits from Rebecca Barnhill Hundley; and defendants knew of these legitimate and bona fide expectations of benefits from Rebecca Barnhill Hundley; defendants intentionally induced Rebecca Barnhill Hundley not to make gifts to plaintiffs and to provide them substantial benefits by her will; defendants acted without justification; and defendants caused actual pecuniary harm to plaintiffs.
Based on these allegations, plaintiffs asserted that defendants' conduct amounted to malicious interference with prospective advantage of plaintiffs to receive gifts and testamentary benefits from Ms. Hundley.
On 3 September 2004, defendants filed a motion to dismiss plaintiffs' complaint pursuant to N.C.R. Civ.P.12(b)(6). A hearing was held on 4 October 2004 in Guilford County Superior Court and the trial court granted defendants' motion on 11 October 2004. Plaintiffs subsequently filed a notice of appeal to this Court on 27 October 2004.
The purpose of a motion under Rule 12(b)(6) is to test "the legal sufficiency of the pleading." Sterner v. Penn, 159 N.C.App. 626, 628, 583 S.E.2d 670, 672 (2003). When determining whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), the trial court must discern "`whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.'" Shell Island Homeowners Ass'n. v. Tomlinson, 134 N.C.App. 217, 225, 517 S.E.2d 406, 413 (1999) (quoting Isenhour v. Hutto, 129 N.C.App. 596, 598, 501 S.E.2d 78, 79, review allowed, 349 N.C. 360, 517 S.E.2d 895 (1998)). A complaint should be dismissed if "[1] no law exists to support the claim made, [2] if sufficient facts to make out a good claim are absent, or [3] if facts are disclosed which will necessarily defeat the claim." Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990).
On appeal, plaintiffs do not challenge the trial court's dismissal to the extent that it involves inter vivos gifts as opposed to testamentary benefits. With respect to testamentary benefits, plaintiffs argue that the trial court's dismissal of their claim cannot be reconciled with Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390 (1936).
In Bohannon, the plaintiff alleged that his grandmother and aunt had by false representations prevailed upon the plaintiff's grandfather to change his "fixed intention" to leave a large share of his estate to the plaintiff. Id. *666 at 681, 188 S.E. at 391. Our Supreme Court held that these allegations supported a cause of action: "If the plaintiff can recover against the defendant for the malicious and wrongful interference with the making of a contract, we see no good reason why he cannot recover for the malicious and wrongful interference with the making of a will." Id. at 685, 188 S.E. at 394.
In this appeal, the parties debate the applicability of Bohannon, focusing on whether or not the case involved an existing and probated will, as here. Defendants contend that "[t]he Supreme Court [in Bohannon] did not deal with an existing will or the effect of an existing will." Plaintiffs, however, state that "it clearly appears in the report of that case that the will in question had been admitted to probate and was under administration at the time the lawsuit for intentional interference with prospective advantage was filed." Neither position is precisely correct. The language referenced by plaintiffs indicates only that one of the defendants, who had passed away prior to filing of the suit, had a will that had been probated. The decision cited by the parties does not, however, indicate anywhere that a will had been admitted to probate. Nevertheless, a subsequent appeal in the case, Bohannon v. Trotman, 214 N.C. 706, 708, 200 S.E. 852, 852 (1939) confirms that there was a will and that, at some unspecified time, it was duly probated.
We need not, however, resolve whether Bohannon is factually similar or distinguishable from this case since Bohannon does not represent the final word in North Carolina on this issue although the development of the law has been somewhat contradictory. In 1950, the Supreme Court addressed a factual scenario similar to that in Bohannon, but never mentioned the Bohannon opinion. See Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448 (1950). Defendants contend that Holt controls rather than Bohannon.
The Holt plaintiffs sued "to recover damages of defendants for allegedly inducing decedent by fraud or undue influence to convey and will his property to them pursuant to a conspiracy on the part of the defendants and another to defraud plaintiffs of their rights of inheritance." Id. at 498, 61 S.E.2d at 450. The decedent's will which excluded the plaintiffs as beneficiaries had been admitted to probate. The Supreme Court in Holt first held:
In so far as his children are concerned, a parent has an absolute right to dispose of his property by gift or otherwise as he pleases. He may make an unequal distribution of his property among his children with or without reason. These things being true, a child has no standing at law or in equity either before or after the death of his parent to attack a conveyance by the parent as being without consideration, or in deprivation of his right of inheritance.
Id. at 500-01, 61 S.E.2d at 451 (emphasis added). The Court added:
When a person is induced by fraud or undue influence to make a conveyance of his property, a cause of action arises in his favor, entitling him, at his election, either to sue to have the conveyance set aside, or to sue to recover the damages for the pecuniary injury inflicted upon him by the wrong. But no cause of action arises in such case in favor of the child of the person making the conveyance for the very simple reason that the child has no interest in the property conveyed and consequently suffers no legal wrong as a result of the conveyance.
Id. at 501, 61 S.E.2d at 452 (emphasis added) (internal citations omitted). The Court then held that if the person making the conveyance should die, the cause of action survives and passes "to those who then succeed to his rights." Id. Plaintiffs in this case have argued that Holt involved a challenge regarding inter vivos transfers and, at this point in the Holt opinion, the Court indeed does proceed to address who may challenge transfers of property made by a decedent in his lifetime and what showing is required. See id. at 502, 61 S.E.2d at 452.
In the next paragraph, however, the Court observed that the Holt plaintiffs claimed to have succeeded as heirs and next of kin of the decedent to the right to bring the decedent's claim that the defendants had induced the decedent by fraud to deny the plaintiffs their rights of inheritance. In rejecting this claim, the Supreme Court stressed that the *667 will admitted to probate had vested in the defendants all rights existing in the decedent at the time of his death. Id., 61 S.E.2d at 453. The Court then wrote:
To be sure, the plaintiffs offered [the will] in evidence "for the purpose of attack," and undertake to avoid its legal effect as a testamentary conveyance of the rights of their ancestor to the defendants by asserting that its execution was induced by fraud or undue influence perpetrated on their ancestor by the defendants and their fellow conspirator . . . . But the law does not permit the plaintiffs to assail the probated paper writing in this collateral fashion.
Id. After pointing out that by statute, an order of the Clerk admitting a paper writing to probate constitutes conclusive evidence that the paper writing is the valid will of the decedent, see N.C. Gen.Stat. § 31-19 (2003), the Court held: "This being true, the plaintiffs have no standing to maintain these suits until the probated paper writing is declared invalid as a testamentary instrument by a competent tribunal in a caveat proceeding; for such paper writing wills all rights existing in [the decedent] at the time of his death to the defendants, with the result that nothing descends to the heirs or next of kin." Id. at 503, 61 S.E.2d at 453.
In summary, Holt appears to hold (1) that the right to sue for fraud even with regard to the making of a will rests in the maker of the will, (2) that the cause of action will survive the death of the maker of the will, and (3) unless the will is set aside through a caveat proceeding, the right to pursue a claim for fraud (at least as to personalty) rests with the beneficiaries under the will. A commentator has observed that this reasoning in Holt is difficult to reconcile with Bohannon: "The opinion is openly hostile to the idea that there is any independent right in the disinherited sons, based on loss of an expectancy, even based on the intentional act of another and after the death of the parent." Diane J. Klein, Revenge of the Disappointed Heir: Tortious Interference with Expectation of Inheritance A Survey with Analysis of State Approaches in the Fourth Circuit, 104 W. Va. L.Rev. 259, 276-77 (2002).
Subsequently, in 1967, the Supreme Court issued a third opinion addressing this subject in Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967). The Court relied on both Bohannon and Holt, but did not resolve the apparent inconsistency between their holdings. In Johnson, the joint will of the plaintiff's parents, which had been probated, bequeathed all of the parents' property to the children of the plaintiff's brother. The plaintiff was not mentioned in the will. The plaintiff alleged that by fraudulent acts, her brother and sister-in-law wrongfully denied the plaintiff her rightful inheritance. As relief, she sought a constructive trust on certain property for her benefit.
The Court distinguished Bohannon on the grounds that the decedent in Bohannon had (a) a "fixed intention" to settle part of his estate on the plaintiff, (b) the plaintiff could not have filed a caveat proceeding, and (c) the plaintiff would not have received anything from his grandfather's estate in the event that the grandfather died intestate. Id. at 203, 152 S.E.2d at 217. The Court found the Holt decision "more analogous" and described the opinion as holding that "the will could be attacked only by caveat; and that, unless and until the will was declared invalid in a caveat proceeding, all rights existing in [the decedent] at the time of his death, to attack conveyances he had made, vested in the defendants as beneficiaries under the will." Id. The Court observed that "the thrust of" the Holt decision was in accord with its decision, id., but then proceeded to engage in a slightly different analysis.
The Johnson Court first pointed out that a constructive trust is an equitable remedy and quoted from the Restatement of Restitution § 184: "`Where a disposition of property by will or an intestacy is procured by fraud, duress or undue influence, the person acquiring the property holds it upon a constructive trust, unless adequate relief can otherwise be given in a probate court.'" Johnson, 269 N.C. at 204, 152 S.E.2d at 217 (emphasis in Johnson). Based on this principle, the Court held: "The grounds on which plaintiff seeks to establish a constructive trust were equally available as grounds for direct attack *668 on the will by caveat. This right of direct attack by caveat gave her a full and complete remedy at law. Hence, plaintiff, on the facts alleged, is not entitled to equitable relief." Id. The Court then proceeded to also hold that an heir could establish a right to a constructive trust "notwithstanding the probate of a will under which such heir is not a beneficiary" upon a showing of extrinsic fraud. Id. at 204-05, 152 S.E.2d at 218.
In sum, the Court in Johnson suggested that equitable relief could be available to an heir omitted from a will if: (1) the grounds on which the plaintiff sought relief were not equally available through a caveat proceeding; (2) the caveat proceeding would not give the plaintiff an adequate remedy; (3) fraud was practiced directly upon the plaintiff by the defendants either before or after the death of the decedent; (4) fraud was practiced on the plaintiff or on the probate court in connection with the probate of the will; or (5) defendants interfered with the plaintiff's right to attack the will by caveat. Id. at 204-05, 152 S.E.2d at 217-18. Because the Johnson complaint established the availability of relief through a caveat proceeding and failed to allege any of the pertinent types of fraud, the Court affirmed the dismissal of the plaintiff's complaint.
This Court addressed Bohannon and Johnson, but not Holt, in Griffin v. Baucom, 74 N.C.App. 282, 328 S.E.2d 38, disc. review denied, 314 N.C. 115, 332 S.E.2d 481 (1985). The plaintiffs in Griffin offered evidence that the defendants the deceased's wife and sister-in-law exercised undue influence over the deceased to cause him to destroy his will, leaving him intestate with the result that all of his property went to his wife to the exclusion of the plaintiffs. Id. at 285, 328 S.E.2d at 41. The defendants also destroyed all evidence regarding the contents of the will. Id. The plaintiffs sought either (1) a conveyance of real property that they contend they would have received under the will in the absence of interference or (2) a money judgment in an amount equal to the value of that property. Id. at 283, 328 S.E.2d at 39.
The Griffin Court first recited the rule in Bohannon: "North Carolina recognizes the existence of the tort of malicious and wrongful interference with the making of a will. . . . If one maliciously interferes with the making of a will, or maliciously induces one by means of undue influence to revoke a will, to the injury of another, the party injured can maintain an action against the wrongdoer." Id. at 285-86, 328 S.E.2d at 41. After concluding that the plaintiffs in Griffin had offered sufficient evidence to establish an issue of fact regarding a malicious interference claim, the Court turned to the defendants' argument that the plaintiffs were in effect seeking to prove the will and, therefore, were required to proceed by way of a caveat proceeding.
The Court explained, citing Johnson: "While we agree that where a will has been submitted for probate, a plaintiff must avail himself of the statutory remedy of a will contest to prove or set aside the instrument, where no will has been submitted, as in the case sub judice, plaintiff may pursue a tort remedy and is not limited to the remedy of a probate proceeding." Id. at 287, 328 S.E.2d at 42 (internal citations omitted). The Court noted that "[d]efendants cite cases from other jurisdictions as recognizing the doctrine that an attempt to pursue a remedy in probate proceedings or a showing that a remedy is unavailable or inadequate through probate proceedings is a prerequisite to maintaining an action for damages for interference with an expected inheritance." Id. The plaintiffs in Griffin had, however, offered "evidence indicative that the relief available in a probate proceeding was inadequate or even nonexistent." Id. Accordingly, the Court held "that in the case under review where no will was submitted for probate and where facts exist indicating that inadequate relief was available in a probate proceeding, plaintiffs were not required to first seek to prove the revoked will in a probate proceeding before pursuing their tortious interference claim." Id.
Based on Griffin's application of Johnson, we believe Johnson's analysis is equally applicable to cases not involving a request for a constructive trust. Johnson and Griffin also provide a means by which Holt and Bohannon may be reconciled. It appears that in Holt, the plaintiffs could have obtained an *669 adequate remedy in a caveat proceeding, while in Bohannon, the plaintiff could not. Thus, in this case, as in Griffin, the question is whether a caveat proceeding was available and, if so, whether such a proceeding would provide an adequate remedy to plaintiffs.[1]
Plaintiffs' complaint alleges that a will exists and their brief on appeal appears to acknowledge that the will has been submitted to probate. The complaint's allegation that Mrs. Hundley's will provided for only nominal bequests to plaintiffs also suggests that plaintiffs could have filed a caveat proceeding. N.C. Gen.Stat. § 31-32 (2003), which governs caveat proceedings, provides that "any person entitled under such will, or interested in the estate, may appear in person or by attorney before the clerk of the superior court and enter a caveat to the probate of such will . . . ." Taking the allegations of the complaint as true, it appears plaintiffs were beneficiaries under Mrs. Hundley's will and thus could be considered persons "entitled under such will," within the meaning of N.C. Gen.Stat. § 31-32. See In re Will of Joyner, 35 N.C.App. 666, 668, 242 S.E.2d 213, 214 (holding "under the plain words of the statute" that children who were beneficiaries under their parent's will were persons "entitled under such will, or interested in the estate" as that term is used in the statute), disc. review denied, 295 N.C. 261, 245 S.E.2d 777 (1978).
Nevertheless, the allegations of the complaint do not necessarily establish that the plaintiff step-grandchildren would be able to obtain adequate relief through a caveat proceeding. Under both Johnson and Griffin, the inadequacy of relief in a caveat proceeding entitles a plaintiff to proceed with his or her tort claim. Because it does not "`appear[] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,'" the trial court erred in granting defendants' motion to dismiss. Anderson v. Texas Gulf, Inc., 83 N.C.App. 634, 638, 351 S.E.2d 109, 111 (1986) (quoting Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 165-66 (1970)).
Reversed.
Judges HUNTER and HUDSON concur.
NOTES
[1] Like Johnson, the complaint in this case contains no allegations regarding extrinsic fraud and, therefore, fraud cannot be a basis for allowing plaintiffs to proceed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585459/ | 508 So.2d 1300 (1987)
Sylvester O'Neal LEE, Appellant,
v.
STATE of Florida, Appellee.
No. BL-351.
District Court of Appeal of Florida, First District.
June 17, 1987.
Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.
ZEHMER, Judge.
Sylvester O'Neal Lee appeals his conviction and sentence on multiple charges of *1301 kidnapping, sexual battery with a deadly weapon, robbery with a firearm, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. We find it necessary to reverse for the erroneous admission of collateral crime evidence.
The evidence at trial established that around 3:00 a.m. on December 13, 1983, the victim and two male friends were seated in a Camaro automobile in the Panama City area when appellant approached them with a handgun. A short struggle ensued and appellant put a towel over the victim's head and drove the car away with the victim in it. After driving for about forty-five minutes, appellant stopped the car and forced the victim to perform oral sex upon him, and then compelled the victim to have sexual intercourse with him. Appellant left the victim in the wooded area, and she eventually contacted law enforcement authorities. The results of her examination and testing with a rape kit revealed the presence of seminal fluid stains on her clothing and established the presence of semen of the blood group O, PGM type 1, which was consistent with appellant. Latent fingerprints found on the car and on a checkbook inside the car were identified as appellant's. At trial, the victim and her two friends, one of whom had known appellant previously, identified appellant as the person who committed the offenses. The state was permitted to present, over appropriate defense objections, testimony by three bank tellers who identified appellant as the participant in a bank robbery the following afternoon in Tallahassee.
Appellant first contends that the trial court erred in denying his motion to suppress the victims's out-of-court and in-court identification of appellant. We find no merit to this contention.
Next, appellant contends the trial court reversibly erred in admitting the evidence of appellant's participation in the bank robbery. The fact that appellant committed the bank robbery in Tallahassee shortly after the victim's abduction in Panama City, appellant argues, served no purpose other than to prejudice the jury against him; there were no identifiable points of similarity pervading the compared factual situations, and the facts neither had some special characteristics nor were so unusual as to point to defendant as the perpetrator of the charged offense. See Thompson v. State, 494 So.2d 203 (Fla. 1986). Appellant contends that the testimony relating to the bank robbery does not fit within the rule of admissibility set forth in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), or section 90.404(2), Florida Statutes (1985), and that the admission of such evidence constituted reversible error.
The state answers appellant's argument in one page as follows:
In Heiney v. State, 447 So.2d 210 (Fla. 1984), the court approved the admission of collateral crime evidence citing Smith v. State, 365 So.2d 704 (Fla. 1978), for "establishment of the entire context out of which the criminal action occurred." Id. at 213, 214. See also Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); and Tumulty v. State, 489 So.2d 150 (Fla. 4th DCA 1986). Thus, the fact that Appellant stole a car that was driven to Tallahassee and used in the commission of an armed bank robbery less than ten (10) hours later, not only established the context of the crime, but was also relevant to rebut the anticipated alibi defense that the Appellant had never been near the car. See Cotitia [Cotita] v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), and Dodson v. State, 344 334 So.2d 305 (Fla. 1st DCA 1976).
The evidence was clearly relevant to link Appellant to the Camaro and, therefore, was properly admitted.
The supreme court has held that "among the other purposes for which a collateral crime may be admitted under Williams is establishment of the entire context out of which the criminal action occurred." Heiney v. State, 447 So.2d at 213-14; Smith v. State, 365 So.2d 704 (Fla. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). We conclude, however, that the testimony relating to the Tallahassee *1302 bank robbery was not admissible under that test. We are unable to perceive any factual connection between the two offenses that would relate the robbery to the several offenses under review and permit the jury to find that the circumstances surrounding the robbery in Tallahassee tended to prove any essential element of the Panama City offenses. Contrary to the assertion in the state's brief quoted above, there was no testimony or other evidence presented at trial which linked the stolen Camaro found in Tallahassee to the bank robbery. Nothing in this record establishes that appellant even drove the car to Tallahassee, much less used it in the robbery. At oral argument, counsel for the state stated, based on knowledge he gained in handling the appeal of appellant's conviction in a Tallahassee trial on the bank robbery charge, that a witness had seen appellant leave the bank in the stolen Camaro.[1] That may well have been true, but no such testimony was presented at appellant's trial in Panama City on the instant charges and could not, therefore, be relied on to "establish the entire context out of which the criminal action occurred." Heiney v. State, 447 So.2d 210.
Furthermore, although collateral crime evidence may be introduced to rebut an alibi defense, there was no indication that appellant intended to rely on an alibi. No notice of alibi was filed pursuant to Florida Rule of Criminal Procedure 3.200. Appellant neither testified at trial nor presented evidence of an alibi. While the only defense argued was based upon mistaken identity, there was never any hint (from all that appears in this record) appellant would assert an alibi defense to rebut. Evidence in rebuttal to affirmative defenses is usually presented after the defense closes unless the record reveals some basis during the state's main case that would make the tendered evidence relevant to a disputed issue. The cases cited by the state do not hold otherwise.
Finally, the criminal episodes in this case are not factually analogous to the occurrences in Heiney and Smith so as to permit the admission of this testimony on any other theory. We note that the state presented testimony that a gun was used in the bank robbery, as well as in the commission of the abduction and sexual battery offenses. But it was not established that the same gun was used during the commission of both offenses, and the fact that a gun was used during the commission of both offenses was not unusual or unique and did not render the testimony identifying appellant as the bank robber relevant and admissible "to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." § 90.404(2)(a), Fla. Stat. (1985).
Because the state has failed to show any basis for admission of this testimony under Williams or section 90.404(2)(a), we hold that it was error for the trial court to admit the testimony regarding appellant's participation in the bank robbery. See, e.g., Thompson v. State, 494 So.2d 203 (Fla. 1986); Garrette v. State, 501 So.2d 1376 (Fla. 1st DCA 1987).
Next, we must determine whether this erroneous admission of collateral crime evidence was harmless error. As an appellate court, we are permitted to reverse a judgment only if "after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice." § 59.04, Fla. Stat. (1985); see also § 924.33, Fla. Stat. (1985). The admission of improper collateral crime evidence is ordinarily presumed harmful because of the danger that a jury will take bad character or the propensity to commit the collateral crime as evidence of guilt of the crimes charged. E.g., Wilson v. State, 490 So.2d 1062, 1064 (Fla. 5th DCA 1986). The state offered no argument on harmless error in its brief, and at oral argument counsel insisted it was an obligation of the court to apply the harmless error test without argument or guidance from the state. We *1303 agree that it is the ultimate responsibility of this court to determine whether an error is harmless, but the harmless error rule requires that the state demonstrate beyond a reasonable doubt that the error did not affect the jury verdict. State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986). No doubt the state is free to rely solely on its argument that admission of the evidence was not error; however, better appellate practice suggests that an appellee address the harmless nature of the asserted error as an alternative or backup argument. Especially is that so in a case such as this, where the state has made arguments not supported by the record, has otherwise failed to support the propriety of the ruling in question, and must carry the heavy burden under the test laid down in DiGuilio.
The supreme court held in DiGuilio that application of the harmless error test requires
... not only a close examination of permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict... . The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test... . The focus is on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.
491 So.2d at 1138-39 (emphasis added). Although an examination of this record reveals clear and convincing, probably conclusive evidence of appellant's guilt, we are unable to conclude that there is no reasonable possibility that the erroneous admission of the bank tellers' testimony did not, under the DiGuilio test, affect the verdict. The three bank tellers unequivocally identified appellant as one of the men involved in the Tallahassee robbery. This collateral crime evidence was not, however, connected in any way to the charges being tried, and tended only to prove appellant's bad character and propensity to commit crimes. The potential for such adverse and prejudicial impact on the trier of fact is further emphasized by the manner in which the assistant state attorney made repeated references to the bank robbery in his closing argument. For example, he argued:
Now, the defense apparently objects to the fact that I called three tellers, three bank tellers. You saw the ladies who testified. They don't like the fact that I called them in court to testify... . Because every one of those women, and two of them were closer than I am to the closest one of you right now, every one of those women definitely, positively, without any doubt or hesitation or any equivocation, each one identified this defendant, this man, as the one who was robbing their bank at 2:00 o'clock in the afternoon that same day, carrying this pistol in his hand... . What this case is about is about a man who kidnapped a woman, a man who had been previously convicted of first degree murder, robbery, and escape, kidnapping a woman with a firearm, taking her out in the woods, raping her, putting her out, taking her car off, coming back after a few minutes, not finding her, getting back in the car, driving to Tallahassee, getting up with his partner and robbing the Security First Bank at gunpoint wearing a disguise, a fake moustache, and dark glasses and that hat.
(T 413, 419) (emphasis supplied).
Appellant was not shown to be wearing the referenced disguise during commission of the kidnapping and other offenses in Panama City. Neither was the prosecutor's reference to a previous conviction "of first degree murder, robbery, and escape" shown to be connected to commission of these offenses. The argument leads to the inescapable conclusion that the prosecutor was asking the jury to find appellant guilty, at least in part, because he was clearly a very bad man intent on committing crimes since he had committed murder, robbery, and escape on other occasions. Based on the record before us, we cannot say that there is no reasonable possibility that the inadmissible evidence did not influence the jury's decision in any respect and, in this sense, did not "affect *1304 the jury verdict and was harmless beyond a reasonable doubt."
As stated above, the evidence of appellant's guilt was overwhelming, if not conclusive. Appellant was identified by the victim and two other eyewitnesses as the person who committed the offenses. That the victim had been sexually battered was confirmed by subsequent objective tests consistent with appellant's participation. Appellant's fingerprints were found in the victim's car. We are confident that the jury verdict would have been the same with or without the improperly admitted collateral crimes evidence. Paraphrasing the language of the harmless error statute, we do not conclude that "after an examination of the entire case it now appears that the error complained of has resulted in a miscarriage of justice." Thus, we would affirm under a literal interpretation of the statutory language. But since we cannot say that the error did not affect the jury's deliberations and influence its verdict, we must reverse appellant's conviction under the DiGuilio test and remand for a new trial.
Because we are convinced that any retrial of this case will result in conviction, no matter how many times it is re-tried, we believe the supreme court should revisit and modify the DiGuilio test in respect to its application to the circumstances shown by this case, and certify the following as a question of great public importance:
DOES THE ERRONEOUS ADMISSION OF EVIDENCE OF COLLATERAL CRIMES REQUIRE REVERSAL OF APPELLANT'S CONVICTION WHERE THE ERROR HAS NOT RESULTED IN A MISCARRIAGE OF JUSTICE BUT THE STATE HAS FAILED TO DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THERE IS NO REASONABLE POSSIBILITY THAT THE ERROR AFFECTED THE JURY VERDICT?
Having reversed the conviction and remanded for a new trial, we do not reach the asserted sentencing errors based on the trial court's departure from the recommended guidelines sentence.
REVERSED and REMANDED.
THOMPSON and BARFIELD, JJ., concur.
NOTES
[1] Appellant's conviction for the commission of that robbery was affirmed without opinion. Lee v. State, 502 So.2d 424 (Fla. 1st DCA 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585483/ | 508 So.2d 87 (1987)
STATE of Louisiana
v.
Morgan PITRE.
No. 87-KO-1075.
Supreme Court of Louisiana.
June 19, 1987.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585467/ | 508 So.2d 1311 (1987)
Anthony S. OUTAR, Appellant,
v.
STATE of Florida, Appellee.
No. 86-1713.
District Court of Appeal of Florida, Fifth District.
June 18, 1987.
James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
SHARP, Judge.
Outar appeals the trial court's imposition of $200.00 in costs pursuant to section 27.3455, Florida Statutes (1985), which conditioned the accrual of gain time upon full payment of such costs. We vacate that portion of the sentence imposing said costs and remand for further proceedings because the record shows the trial court made no determination that Outar was financially able to pay the $200.00 in costs assessed.[1]
It is erroneous to impose costs pursuant to section 27.3455 if the trial court does not give the defendant adequate notice and opportunity to object to their imposition,[2] and *1312 if no determination is made that he can afford to pay the costs. Nor can a defendant waive consideration of these fundamental errors by merely failing to object thereto. Due process requires a judicial determination that appellant has an ability to pay court costs. Jenkins v. State, 444 So.2d 947 (Fla. 1984).
Here, Outar was twice adjudicated indigent by the trial court, first in appointing counsel for trial and second in appointing counsel for this appeal immediately after the sentencing. There is clearly doubt that Outar became nonindigent in the few moments between trial and appeal. Upon remand the trial court must give Outar an opportunity to be heard to determine whether he has the ability to pay costs. If not he must be given a term of community service in lieu of payment of costs.[3]
SENTENCE VACATED; CAUSE REMANDED.
COBB, J., concurs.
COWART, J., dissents with opinion.
COWART, Judge, dissenting.
By section 27.3455, effective July 1, 1985, the legislature provided that certain court costs be imposed on persons convicted in criminal cases and also provided that until such assessed costs were paid, no accrued gain time would be granted persons in confinement and that indigents were to be placed on community service in lieu of such assessed costs. After the effective date of this statute, trial courts commenced applying the statute as to offenses committed before the effective date of the statute. Appellate defense counsel immediately saw a constitutional ex post facto problem with this retroactive application of the statute. The State argued that the statute constituted but a procedural change which could be constitutionally applied retroactively. A slew of district court of appeal cases considered the issue as framed and denied the statute's retroactive application. The question was certified to the supreme court and considered there in State v. Yost, 507 So.2d 1099 (Fla. 1987).
While Yost was concerned with the assessment of costs being unconstitutional because of the retroactive application of the statute to crimes occurring before the effective date of the statute, the rationale of that decision was, in substance, an application of the greater principle that a criminal penalty cannot be imposed in lieu of payment of money because such an application is unconstitutional, not because of any ex post facto application, but because it unconstitutionally penalizes a person for poverty and is a denial of equal protection of law for indigent persons. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Martin v. State, 248 So.2d 643 (Fla. 1971).
Because of the application of this more fundamental principle, the ex post facto argument is actually immaterial because it is unconstitutional to penalize an indigent if he cannot pay money (fine or costs) whether the statute imposing such penalty is being applied retroactively or prospectively.
Therefore, while section 27.3455 is not being unconstitutionally applied retroactively in this case, because Outar's offense was committed after the effective date of the statute, the penalty provision as an alternative to the payment of costs still cannot be constitutionally applied. The amendment to the statute in chapter 86-154, section 1, Laws of Florida, which deleted the penalty for failure to pay fees and *1313 costs, was but a legislative acknowledgment of the unconstitutionality of providing criminal punishment for one's inability to pay money, an inherent unconstitutional infirmity of the penalty provision in the statute from its inception. Therefore, I cannot agree with the majority opinion, that if on remand, the trial court finds Outar cannot pay costs, for that reason he is to be made to perform community service. The trial court's imposition of the $200 in court costs pursuant to section 27.3455, Florida Statutes (1985) should be affirmed but the provision that the accrual of gain time is subject to the condition that such court costs be paid should be stricken as unconstitutional.
NOTES
[1] Outar committed the offense on or about June 1, 1986, after the effective date of section 27.3455, Florida Statutes (1985) (July 1, 1985), and before the effective date of its amendment (October 1, 1986), which deleted the penalty provision for failure to pay fees and costs. Therefore, our opinion is not affected by the recent supreme court decision in State v. Yost, 12 F.L.W. 221 (Fla. May 7, 1987).
[2] See Delifus v. State, 507 So.2d 753 (Fla. 5th DCA 1987); Harris v. State, 507 So.2d 1133 (Fla. 5th DCA 1987); Hardy v. State, 503 So.2d 453 (Fla. 5th DCA 1987); Chance v. State, 498 So.2d 1064 (Fla. 5th DCA 1986); Butler v. State, 498 So.2d 611 (Fla. 5th DCA 1986); Evins v. State, 497 So.2d 1293 (Fla. 5th DCA 1986); Gaffney v. State, 497 So.2d 1292 (Fla. 5th DCA 1986), review denied, 506 So.2d 1041 (Fla. 1987); Gordon v. State, 497 So.2d 661 (Fla. 5th DCA 1986); Maxwell v. State, 492 So.2d 841 (Fla. 5th DCA 1986); Williams v. State, 492 So.2d 784 (Fla. 5th DCA 1986); Fletcher v. State, 491 So.2d 354 (Fla. 5th DCA), review denied, 500 So.2d 545 (Fla. 1986); Brooks v. State, 490 So.2d 173 (Fla. 5th DCA 1986).
[3] § 27.3455, Fla. Stat. (1985); Harris v. State, 507 So.2d 1133 (Fla. 5th DCA 1987); Hardy v. State, 503 So.2d 453 (Fla. 5th DCA 1986); Chance v. State, 498 So.2d 1064 (Fla. 5th DCA 1986); Butler v. State, 498 So.2d 611 (Fla. 5th DCA 1986); Evins v. State, 497 So.2d 1293 (Fla. 5th DCA 1986); Gaffney v. State, 497 So.2d 1292 (Fla. 5th DCA 1986), review denied, 506 So.2d 1041 (Fla. 1987); Maxwell v. State, 492 So.2d 841 (Fla. 5th DCA 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585487/ | 508 So.2d 1062 (1987)
Frances Jean DAVIS
v.
John Earl DAVIS.
No. 56593.
Supreme Court of Mississippi.
May 13, 1987.
Rehearing Denied July 15, 1987.
*1063 John Booth Farese, Farese, Farese & Farese, Ashland, for appellant.
Talmadge D. Littlejohn, New Albany, for appellee.
Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.
ROBERTSON, Justice, for the Court:
I.
This case presents the question whether the plaintiff in a partition action has presented enough evidence that she has an interest in the property sought to be partited so that she should survive a motion for summary judgment, the motion having been made on grounds that the establishment of an interest in the property is a necessary element of the Plaintiff's claim, failing which the claim must be dismissed. The Chancery Court granted the motion for summary judgment on the grounds asserted. For the reasons set forth below, we affirm.
II.
A.
Prior to 1960, Frances Jean Davis and John Earl Davis were husband and wife. On February 1, 1960, Paul Montgomery conveyed to John Davis by warranty deed property believed by them to be the property which is the subject of the present proceeding, this property being there referred to as Lot No. 1 in Montgomery Subdivision in Tishomingo County, Mississippi. Thereafter, the Davises occupied the premises as their homestead. Nothing in the February 1, 1960, deed vested any legal interest in the property in Frances Jean Davis.
There was one problem with the description of the property in the 1960 deed. The plat of the Montgomery Subdivision reflected two lots designated as Lot No. One. Apparently, this problem was of concern, for on January 20, 1965, Paul Montgomery and Floyd Montgomery executed a quitclaim deed purporting to re-convey the property to Frances Jean Davis and John E. Davis. As fate would have it, the quitclaim deed wholly failed to describe the property correctly.
The parties continued to reside thereon for some twenty years. During that time at least two deeds of trust were placed thereon wherein both John Earl Davis and Frances Jean Davis were the grantors.
On February 27, 1980, by final decree of the Chancery Court of Tishomingo County, Mississippi, the Davises were divorced. The decree reflects a contested divorce proceeding and, inter alia, contains a finding "that the former home of the parties hereto is in the name of John Davis and cannot and will not be disturbed by this court and will remain as it must his property."
B.
On September 30, 1981, Frances Jean Davis commenced the present partition action by filing her complaint in the Chancery Court of Tishomingo County, Mississippi. In that complaint she alleged that the property was owned jointly by herself and her former husband, with each owning a one-half interest. In due course, John Davis answered and alleged, inter alia, that Frances Davis had no interest in the property and that her claim, if any, was barred by res judicata, laches and estoppel.
Belatedly, in September of 1984, John E. Davis moved the court for summary judgment, denying again that Frances had an interest in the property and reasserting his defenses of res judicata, laches and estoppel. The matter came on for hearing at *1064 which time the Chancery Court took live testimony from John Davis and Frances Davis and at the conclusion of which he dismissed the complaint. Specifically, the court stated:
This is a suit for a partition of property, a proceeding having as an essential element and a prerequisite the ownership of an interest in the property. It is incumbent upon Ms. Davis to establish ownership. She did not do so.
Counsel for Frances Davis requested a specific ruling on her claim of an interest in the property by virtue of adverse possession but this too was rejected.
Frances Davis now appeals to this Court.
III.
Substantively, an action for partition of real property is governed by statute. Trigg v. Trigg, 498 So.2d 334, 335-36 (Miss. 1986). The right to seek a judicial partition is granted only to "parties in interest." Miss. Code Ann. § 11-21-5 (Supp. 1986). Without doubt, as an element of her partition action, Frances Jean Davis had to prove that she had an interest in the property. To withstand summary judgment, she was required to show at least an arguable basis in law and in fact upon which it might ultimately be held that she owns a partitable interest in the property.[1]
We consider first the record title. Insofar as the land records of Tishomingo County are concerned, there are only two instruments of relevance. The first is the February 1, 1960, warranty deed from Paul Montgomery to John Davis. On its face this deed makes John Davis the sole grantee. Without regard to whether the property conveyed was correctly described therein, nothing in the February 1, 1960, deed vests any interest in any property in Frances Davis.
Second, we have the January 20, 1965, quitclaim deed from Paul Montgomery and Floyd Montgomery to Frances Jean Davis and John E. Davis. This deed does name Frances J. Davis as a grantee. It contains an erroneous description, however. More specifically, no part of the property Frances Davis seeks to have judicially partited lies within the calls of the description contained in the January 20, 1965, deed. In that sense, the 1965 quitclaim deed vests no interest in Frances Jean Davis, and nothing in Cotton v. McConnell, 435 So.2d 683, 687 (Miss. 1983) suggests to the contrary.
Moreover, even if the erroneous description be reformed, the quitclaim deed is ineffective in the sense that, by virtue of a 1959 deed Floyd Montgomery had conveyed all of his interest in the land to Paul Montgomery, and on February 1, 1960, Paul Montgomery had conveyed all of his interest in the land to John Davis. In other words, at the time of the execution of the quitclaim deed, January 20, 1965, neither Paul Montgomery nor Floyd Montgomery had any interest in the land which they could convey. There was nothing upon which the quitclaim deed could operate. Accordingly, it vests in Frances Jean Davis *1065 no interest in the property here in controversy.
We have considered with some care the import of the problem with the description of the property found in the February 1, 1960, warranty deed. The description refers to Lot One, Montgomery Subdivision, Tishomingo County, when the plat shows that the subdivision contains two lots designated Lot One. The evidence before us makes clear, however, that, as between Paul Montgomery and John Davis, no one was misled. Frances Davis is hardly the sort of third party who might have been subject to prejudice because of the erroneous description. Suffice it to say that under circumstances such as these, the Court will not hold the conveyance void if by looking through its mistaken form to its substance the Court may ascertain with reasonable certainty what land was intended to be conveyed. Ladnier v. Cuevas, 138 Miss. 502, 508, 103 So. 217 (1925); see also Harris v. Byers, 112 Miss. 651, 660, 73 So. 614, 615 (1917).
On this record we hold that the 1960 deed was effective to vest title to the property at issue in John Davis.
IV.
Frances also claims that she acquired an undivided one-half interest in the premises by adverse possession. In the sense that she must have acquired this interest against her husband, John Davis, she is wrong as a matter of law. One element of a claim of adverse possession is that the party claiming thereunder has been in exclusive possession of the premises continuously and uninterruptedly for a period in excess of ten year. See, e.g., Roy v. Kayser, 501 So.2d 1110, 1111-12 (Miss. 1987); Eady v. Eady, 362 So.2d 830, 832 (Miss. 1978); Kayser v. Dixon, 309 So.2d 526, 528 (Miss. 1975). The present record is without contradiction that Frances Davis' occupancy of the premises was not exclusive. To the contrary, it was shared with her husband.
Adverse possession aside, Frances' interest in the property is at best a homestead interest under Mississippi law. Her legal relationship with her husband vis-a-vis title to the property is analogous to that of co-tenants. Our rule is well established that as between co-tenants, even though one may establish all of the ordinary requisites for an adverse possession claim, the adversely possessing tenant may not succeed absent actual notice to the co-tenant of the adverse claim to the land. See, e.g., Speight v. Wheeler, 310 So.2d 716, 720 (Miss. 1974); Kennedy v. Bryant, 252 So.2d 784, 786-87 (Miss. 1971); Johnstone v. Johnson, 248 So.2d 444, 447-49 (Miss. 1971). The co-tenant in possession must effect an ouster of the other of an unequivocal nature and distinctly hostile to the rights of the other so that the intention to possess adversely is clear and unmistakable. Monaghan v. Wagner, 487 So.2d 815, 819 (Miss. 1986); Stampley v. Green, 251 Miss. 47, 168 So.2d 300, 301 (1964).
By analogy, this rule applies in the case at bar. Frances Davis has no record title only, at best, a homestead interest. To adversely acquire the one-half interest she claims, there would have to be an effective communication of her intent to that effect and a legal ouster of John Davis from the one-half interest in question. There is no evidence in this record remotely establishing this.
Pittman v. Simmons, 408 So.2d 1384 (Miss. 1982) affords Frances scant comfort. In that case H.D. and Adlaide M. Pittman jointly owned a residential lot in Grenada and purchased an adjoining lot. In fencing the new lot they enclosed (inadvertently, it appears) the north twenty feet of two neighboring lots. The Pittmans occupied and used the twenty foot parcel and kept it under fence for some twenty years. In the context of litigation between the Pittmans and the record titleholders, the Pittmans prevailed via adverse possession. Pittman, 408 So.2d at 1386-87. Nothing said there sheds light upon possible resolution of a Pittman v. Pittman controversy.
To be sure, our law recognizes an adverse possession claim where one enters into possession of land under the mistaken belief that it lies within the calls of his deed. If under such belief he occupies it *1066 adversely against the world for the statutory period, he will acquire title thereto. Alexander v. Hyland, 214 Miss. 348, 357-58, 58 So.2d 826, 829-30 (1952); Evans v. Harrison, 130 Miss. 157, 163-64, 93 So. 737, 738 (1922). That rule might well benefit John Davis under his February 1, 1960, deed in litigation with his neighbors, although we have held that deed, as explained by the evidence before the Chancery Court, effective to vest record title in John. No deed purports to convey Frances any interest in the property in dispute.
Similarly, Mosley v. Clark, 362 So.2d 615 (Miss. 1978) compels no contrary result. In Mosley, a husband and wife jointly adversely possessed certain real property and in dicta the court suggested that they had acquired title as tenants in common. Mosley, 362 So.2d at 617. The husband and wife had originally occupied the property under a void deed. The February 1, 1960, deed to John Davis was not void. Once resort to extrinsic evidence removed any ambiguity regarding the location of the property, that deed became who'ly effective and vested title in John Davis alone.
V.
In a technical sense, this matter was decided in the court below upon John Davis' motion for summary judgment.[2] The record below reflects, however, that an evidentiary hearing upon the motion was held at which time the court received testimony from John Earl Davis and Frances Jean Davis, from Billy Gann, a licensed surveyor who established the correct location of the property conveyed by the warranty deed from Paul Montgomery to John Earl Davis on February 1, 1960, and, as well, testimony was received from Paul Montgomery himself. In short, the court had before it a great deal more complete record than is normally the case on summary judgment proceedings.
Nevertheless, we have considered this matter on appellate review by reference to the familiar standards applicable where summary judgment has been granted. See New Orleans Great Northern Railroad Co. v. Hathorn, 503 So.2d 1201, 1202-03 (Miss. 1987); Smith v. First Federal Savings & Loan Association, 460 So.2d 786 (Miss. 1984); Vickers v. First Mississippi National Bank, 458 So.2d 1055 (Miss. 1984); Bourn v. Tomlinson Interests, Inc., 456 So.2d 747 (Miss. 1984); Brown v. Credit Center, Inc., 444 So.2d 358 (Miss. 1983); see also Celotex Corp. v. Catrett, 477 U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. ___, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Specifically, we will examine the record to ascertain whether there is a genuine issue of material fact and whether in the present state of the record we can say with confidence that John Earl Davis was entitled to judgment as a matter of law.
As explained above, the dispositive issue is whether Frances Jean Davis holds an interest in subject property sufficient to undergird her partition action. On this record we hold that John E. Davis carried the burden of persuasion assigned him by Rule 56, Miss.R.Civ.P. See Shaw v. Burchfield, 481 So.2d 247, 252 (Miss. 1985); Celotex Corp. v. Catrett, 477 U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
In her effort to secure reversal of the judgment summarily entered below, Frances' brief states repeatedly that there were present "genuine issues of material fact" sufficient to preclude summary judgment. On close scrutiny, the claim falls.
Frances points to the problem with the description of the property in the February 1, 1960, deed. But, as explained above, there is no way this error liberally viewing and resolving it in Frances' favor may lead to finding that Frances owned an interest in the property. At best this is a dispute regarding an immaterial fact. See New Orleans Great Northern Railroad Co. v. Hathorn, 503 So.2d 1201, 1203 (Miss. 1987); Briscoe's Foodland, Inc. v. Capital Associates, Inc., 502 So.2d 619, 622-23 *1067 (Miss. 1986); Shaw v. Burchfield, 481 So.2d 247, 252 (Miss. 1985); Vickers v. First Mississippi National Bank, 458 So.2d 1055, 1061 (Miss. 1984).
Frances counts as significant that she joined John in the execution of two deeds of trust on the property. The explanation here is apparent: the lenders perceived that Frances had a homestead interest and thus required her signature on the deeds of trust. Frances makes a related claim that it would be "illogical" for her to "make house payments on a house in which she did not own a partial interest." Of course, it would not be illogical for her to make note payments on an installment note of which she was a co-maker.
On this record the Chancery Court correctly held that, on the essential issue of Frances' interest in the property, there are no genuine issues of material fact and John Earl Davis is entitled to judgment as a matter of law.
AFFIRMED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and PRATHER, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.
DAN M. LEE, J., dissents.
NOTES
[1] Although this is not the basis upon which the matter was decided below, it appears from the record that prior to this suit the issue of title to the property may have been settled in John Davis' favor and effectively precluded from relitigation. As indicated above, the final decree of divorce entered February 27, 1980, provided that
The former home of the parties hereto is in the name of John Davis and cannot and will not be disturbed by this court and will remain as it must his property.
It appears that this decision followed the actual litigation of the question. Indeed, it is established that ownership of disputed property may well be settled in divorce proceedings. Cf. Watts v. Watts, 466 So.2d 889, 890-91 (Miss. 1985); Allen v. Smith, 248 Miss. 340, 345, 158 So.2d 750, 752 (1963); Hinton v. Hinton, 239 Miss. 679, 682, 124 So.2d 844, 846 (1960).
Ordinarily collateral estoppel is available to preclude relitigation of an issue if certain familiar requisites are met. If identities of subject matter of the action, cause of action, parties and quality or character of person against whom the claim is made are present in a prior action, parties will be denied retrial. See, e.g., Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss. 1982); Southern Land & Resources Co., Inc. v. Dobbs, 467 So.2d 652 (Miss. 1985); Mississippi Employment Security Commission v. Philadelphia Municipal Separate School District, 437 So.2d 388, 395-96 (Miss. 1983). The divorce action's resolution of the title issue appears to possess these requisites.
[2] The original complaint was filed on September 30, 1981, prior to the effective date of the Mississippi Rules of Civil Procedure. Frances Davis, however, has waived any objection on that ground to the Court's proceeding under Rule 56. See Brown v. Credit Center, Inc., 444 So.2d 358, 361-62 (Miss. 1983). She assigns no error in this regard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558412/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00292-CR
Neil Howard MCGINNIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 6777
Honorable Kirsten Cohoon, Judge Presiding
ORDER
On August 10, 2020, we advised the court reporter that the records were late. On August
17, 2020, court reporter Connie Calvert advised this court that counsel has not asked her to
prepare the reporter’s records.
We ORDER Appellant to provide written proof to this court within TEN DAYS of the
date of this order that (1) Appellant has delivered a written request to prepare the reporter’s
records to court reporter Connie Calvert that designates any exhibits to be included, see TEX. R.
APP. P. 34.6(b), and (2) either the arrangements have been made to pay the reporter’s fee, or
Appellant is entitled to free reporter’s records, see TEX. R. APP. P. 20.2.
If Appellant fails to respond as ordered, Appellant’s briefs will be due within THIRTY
DAYS of the date of this order, and the court will only consider those issues or points raised in
Appellant’s briefs that do not require a reporter’s record for a decision. See TEX. R. APP. P.
37.3(c).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2319117/ | 30 A.3d 551 (2011)
COM.
v.
SLOAN[33].
No. 2043 WDA 2009.
Superior Court of Pennsylvania.
May 27, 2011.
Affirmed.
NOTES
[33] Petition for reargument denied August 8, 2011. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546842/ | 13 F.2d 548 (1926)
THE SQUANTO.
UNITED STATES
v.
3,599 BAGS OF LIQUOR, etc.
Nos. 347, 348.
Circuit Court of Appeals, Second Circuit.
July 12, 1926.
Louis Halle, of New York City (Nathan April, of New York City, of counsel), for appellant.
Emory R. Buckner, U. S. Atty., of New York City (Herman T. Stichman and James A. Farmer, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Before HOUGH, MANTON, and HAND, Circuit Judges.
MANTON, Circuit Judge.
The issues presented by the pleadings were tried together and will be considered in one opinion.
The schooner Squanto was seized by the collector of customs on December 19, 1925, in the evening, at about 7:35, between Norton's Point and Craven Shoals, in New York Harbor. It was proceeding without navigation lights toward Staten Island and was not making *549 her way toward Quarantine Station, as is required of vessels arriving from a foreign voyage. There were 12 persons aboard, 11 of whom constituted the crew. The other claimed to have been picked up for the purpose of piloting the Squanto into port. He says he was on a motorboat and had been fishing outside the harbor. At the same time a tugboat which was escorting the Squanto up the bay took flight at the approach of the customs vessel and succeeded in escaping.
After boarding the vessel, the customs officers demanded the ship's papers, which were given, and represented clearance papers from Nassau, a crew list, a bill of health from the Nassau authorities, and a mortgage certificate against the vessel. There was no manifest, but the clearance papers listed the amount of the cargo. Concededly, section 431 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, § 5841e), prescribing the form of manifest required of vessels arriving in the United States, in order to make entry, had not been complied with. The hatches were sealed and the cargo was presumably intact. It was claimed by the captain that the vessel was in distress and that her true destination was St. Pierre Miquelon. The District Judge, on hearing the proof, held that the vessel was not in distress.
The vessel was seaworthy in every respect and was capable of proceeding on this voyage if she so desired. When seized, her engines were going and there were 200 gallons of oil on board. No distress flag had been raised. The crew had no immediate need of food, for there was on board bread, pork, cans of milk and peas, as well as corned beef in sufficient quantities to last out the voyage. She also had good drinking water on board. The clearance papers and the captain's statement showed that he had 4,015 packages of whisky, six bottles to the package, and 190 cases of assorted liquors on leaving Nassau on November 28, 1922. While the seals on the cargo hatches were still intact when the ship was boarded, a doorway leading to the hold was found alongside the galley. The entrance to this was protected by two five-inch spikes, which held the door in place, and it was apparent, from the appearance of the holes which were left at this barrier, that this door had been frequently used. The cargo was packed so as to facilitate the unloading through this door, and was not then intact, as stated by the captain. Several of the packages were broken, and empty boxes were found in the hold. When the cargo was unloaded at the customs house, 3,599 packages, of 6 bottles each, and 188 cases of liquor were found. There was a discrepancy of 451 packages of 6 bottles each and 2 cases of liquor. It is argued that the missing packages must have been removed after the vessel left the high seas, for their removal left the hold loaded in such a way that it would have been impossible to proceed upon the open seas as the cargo was then packed without seriously damaging the remaining cargo. The inference is that the missing packages were transferred to some smaller craft while hovering about the port. No defense was offered to the testimony produced by the government, and the District Judge, at the conclusion of the trial, ordered the ship and cargo as forfeiture to the government.
The circumstances as related above plainly inform us that this schooner did not enter the port in distress, as stated, but that she was a rum runner, engaged in attempting to sell her cargo unlawfully. The vessel was seaworthy, and the supply on board was sufficient to carry out her voyage according to the captain. Perhaps there was not sufficient food for the round trip to and from St. Pierre Miquelon, but there was no immediate need of assistance at the time entry was made at the harbor. Coming in as she did, without lights and assisted by a pilot, picked up after having been at sea 22 days, when she might have made the voyage in 8 or 9 days, it is sufficient to conclude that the enterprise was intended to surreptitiously dispose of the cargo, in violation of the municipal law of the United States.
The libel asserts three causes of forfeiture of the cargo, based upon violations of section 593 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, §§ 5841h12, 5841h13). The first is that the vessel and crew fraudulently and knowingly imported and brought into the United States intoxicating liquors; second, the concealment of the cargo after importation; and, third, unlawful transportation after importation. It is provided by section 593(b) that
"If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not *550 exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury."
Tariff Act, § 401 (Comp. St. Ann. Supp. 1923, § 5841d), defines "merchandise" as goods, wares, and chattels of every description, and would include merchandise the importation of which is prohibited. United States v. Yuginovich, 256 U.S. 450, 41 S. Ct. 551, 65 L. Ed. 1043; United States v. Stafoff, 260 U.S. 477, 43 S. Ct. 197, 67 L. Ed. 358. The Tariff Act of 1922 (42 Stat. 858) taxes the importation of intoxicating liquors, as well as imposes penalties for its importation. United States v. Sischo, 262 U.S. 165, 43 S. Ct. 511, 67 L. Ed. 925; United States v. Two Automobiles and Five Cases of Whisky (D. C.) 2 F.(2d) 264; Powers v. United States (C. C. A.) 294 F. 512. Section 593b above refers to merchandise imported contrary to law. United States v. One Blue Taffeta Evening Coat (D. C.) 237 F. 703; Goldberg v. United States (C. C. A.) 277 F. 211. And importation is complete, as regards a payment of duty, when the goods enter the port. Arnold v. United States, 9 Cranch, 104, 3 L. Ed. 671; United States v. 36 Cases of Intoxicating Liquor (D. C.) 281 F. 243. The cargo is also subject to forfeiture for transportation and concealment after importation, and this libel may be sustained for possession of liquors illegally possessed. Avignone v. United States (C. C. A. 2d Circuit) 12 F.(2d) 509, decided May 10, 1926. It is clear, therefore, that the cargo was properly seized as forfeiture to the government, and the decree appealed from, which orders such forfeiture to the appellee, is affirmed.
There are 10 causes of forfeiture alleged to support the libel against the vessel. The first cause charges a violation of sections 586 and 594 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, §§ 5841h5, 5841h14). They provide:
"Unlawful Unlading Exception. The master of any vessel from a foreign port or place who allows any merchandise (including sea stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States and before such vessel has come to the proper place for the discharge of such merchandise, and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and forfeiture: Provided, that whenever any part of the cargo or stores of a vessel has been unladen or transshipped because of accident, stress of weather, or other necessity, the master of such vessel shall, as soon as possible thereafter, notify the collector of the district within which such unlading or transshipment has occurred, or the collector within the district at which such vessel shall first arrive thereafter, and shall furnish proof that such unlading or transshipment was made necessary by accident, stress of weather, or other unavoidable cause, and if the collector is satisfied that the unlading or transshipment was in fact due to accident, stress of weather, or other necessity the penalties above described shall not be incurred."
"Seizure of Vessels and Vehicles. Whenever a vessel or vehicle, or the owner or master, conductor, driver, or other person in charge thereof, has become subject to a penalty for violation of the Customs-Revenue Laws of the United States, such vessel or vehicle shall be held for the payment of such penalty and may be seized and proceeded against summarily by libel to recover the same," etc.
Determining, as we do, that the vessel was not in distress, and that there was no occasion to unladen or transship her cargo, due to accident, stress of weather, or other necessity, if the vessel unladened part of her cargo within four leagues of the coast of the United States before she had come to the proper place for the discharge of such cargo, she violated section 586 of the Tariff Act, and is subject to a penalty of at least $1,000. The customs officers who boarded the Squanto found the hatches sealed. A careful examination made then revealed that there was a secret and unsealed door leading from the galley to the hold, from which the cargo could be unloaded. When requested to provide the keys for the padlock of this door, the captain did so and the lock was released. The door did not open, and it was observed that there were two five-inch spikes holding it. On pulling the spikes out, an examination showed that they had been placed in drilled holes, from which they had frequently been extracted. It is inferred that this door to the hold had been used for the purpose of removing portions of the cargo without molesting the seals on the hatches. The clearance papers show a cargo of 4,050 packages of whisky, with 190 cases of assorted liquors. At the time of the seizure, *551 there were 3,599 packages and 188 cases of liquor. The captain stated that the liquor had been packed firmly against this door and it is evident that this was the place where the missing liquors were originally stored. The officers who entered the hold found no liquor packed within 6 feet of this entrance, but there was a cleared space, with broken packages of liquor and empty boxes. There is testimony of an experienced stevedore that the removal of these packages and cases left the remaining cargo loaded in such a manner as to make it impossible to proceed in open sea without damage to the remaining cargo.
The fair conclusion from all this is that some had been unloaded shortly before the time the vessel was seized. The Squanto was in contact with a motorboat, from which the drafted pilot came, and was escorted into the harbor by a tugboat, which made its escape when the government vessel approached. How much was unloaded cannot be established, except as may be judged from the discrepancy in the count of the cases. These circumstances establish the probable cause for instituting the proceeding looking toward enforcement of the penalty as against the vessel, and we think, under section 615 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, § 5841h35), that the burden of proof is upon the claimant to establish the innocence of the vessel. Locke v. United States, 11 U. S. (7 Cranch) 339, 3 L. Ed. 364; The Thompson, 70 U. S. (3 Wall.) 155, 18 L. Ed. 55. The conduct of the stranger to the vessel, the drafted pilot, when questioned, casts suspicion upon his alleged occupation at the time he was called upon to pilot the Squanto into port. There is sufficient in this statement of proof to fairly conclude that there was an unloading in violation of the law within the four leagues, and, in the absence of the claimant proving the innocence of the vessel, it cannot escape. Coquitlam v. United States, 163 U.S. 346, 16 S. Ct. 1117, 41 L. Ed. 184; Feathers of Wild Birds v. United States (C. C. A.) 267 F. 964.
The ninth and tenth causes of forfeiture may be treated together, and are based upon the lack of a manifest. Section 584 of the Tariff Act (Comp. St. Ann. Supp. 1923, § 5841h3) provides that the master of the vessel or any person in charge, bound for the United States, who does not produce a manifest to the officer demanding the same, is liable to a penalty of $500 and if any merchandise, including sea stores, is found on board which is not included or described in the manifest or does not agree therewith, the master of such vessel or person in charge is liable to a penalty equal to the value of the merchandise as found or unladen. As pointed out in United States v. Sischo, 262 U.S. 165, 43 S. Ct. 511, 67 L. Ed. 925, intoxicating liquors designated for beverage purposes, and therefore incapable of lawful importation, must nevertheless be manifested, as if it were lawful merchandise. The failure to have this cargo manifested was a violation of section 584, and penalizes the master in the first instance in the sum of $500 for his refusal to present a manifest, and the vessel is subject to this penalty (section 584). The purpose of the manifest is to prevent the importation of forbidden merchandise. It is required by section 431 of the Tariff Act of 1922, and must be prepared before importation. United States v. Bengochea (C. C. A.) 279 F. 537.
The third cause of forfeiture cannot be sustained. It is based upon section 3450 of the Revised Statutes (Comp. St. § 6352), providing for forfeiture of any goods or commodities in respect whereof a tax is or shall be imposed, which is removed or concealed with intent to defraud the United States. The theory of the government is that the cases of intoxicating liquors were removed with intent to defraud the United States of the tax. The scope and reach of this section has no application to goods brought in from foreign ports, and we think refers only to articles produced within the exterior boundaries of the United States. The liquor on the Squanto was not produced in the United States but concededly without. Indeed, it was charged that it was imported into the United States. Its presence on board the Squanto could not form a basis of forfeiture for the alleged violation of this section. See section 3448 of the Revised Statutes (Comp. St. § 6350).
The fourth ground of forfeiture charges a violation of Act Feb. 15, 1893, c. 114, § 2 (Comp. St. § 9157), providing:
"That any vessel at any foreign port clearing for any port or place in the United States shall be required to obtain from the consul, vice consul, or other consular offices of the United States at the port of departure, or from the medical officer," etc., "a bill of health, in duplicate, in the form prescribed by the Secretary of the Treasury, setting forth the sanitary * * * condition of said vessel," etc.
But the Squanto did not clear for a port of the United States, whether or not its clearance for St. Pierre was a pretense.
*552 The fifth and sixth causes of forfeiture have been abandoned by the government.
The seventh and eighth causes of forfeiture are based upon title 2, § 26, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½mm). By the terms of that section, there must be a conviction of the person arrested before there may be a sale of the property seized. United States v. One Packard Motor Truck (D. C.) 284 F. 394; United States v. Sagatind (C. C. A. 2d Circuit) 11 F.(2d) 673, decided April 5, 1926.
The decree ordering forfeiture of the vessel may not be sustained, but the vessel will be held liable for the respective penalties of $1,000 and $500.
Decree as to cargo affirmed, and decree as to the vessel reversed, with costs.
HAND, Circuit Judge (dissenting).
I agree that the cargo should be forfeited, and that the ninth and tenth causes of forfeiture are made out against the Squanto, resulting in a fine of $500. I dissent as to the first cause of forfeiture under section 586 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, § 5841h5). It does not seem to me that the proof warranted the conclusion that the missing liquor was unladen within four leagues of the coast. It is quite true that it may have been put off on the tug which escaped, or on the launch from which the supposed pilot was taken on; but either conclusion, it seems to me, is a mere guess. Section 615 (Comp. St. Ann. Supp. 1923, § 5841h35), assuming this to be a case "relating to the collection of duties," does not supply any defect of proof, as would a presumption; all it does is to put the burden of proof on the claimant, which is quite another matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546852/ | 13 F.2d 777 (1926)
McLENDON
v.
UNITED STATES.
No. 4561.
Circuit Court of Appeals, Sixth Circuit.
July 8, 1926.
*778 D. B. Puryear, of Memphis, Tenn. (T. J. Walsh and W. R. Harrison, both of Memphis, Tenn., on the brief), for plaintiff in error.
W. H. Fisher, Asst. U. S. Atty., of Memphis, Tenn. (S. E. Murray, U. S. Atty, of Memphis, Tenn, on the brief), for the United States.
Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
MOORMAN, Circuit Judge.
T. E. McLendon and Keith Tillman were charged under section 215 of the Penal Code (Comp. St. § 10385) with using the mails in the execution of a scheme to defraud. The act alleged was the mailing of a circular containing false representations as to the pedigree and registry of four dogs. Tillman entered a plea of nolo contendere, and McLendon was convicted, fined $1,000, and sentenced to the penitentiary for three years and a half. Numerous questions are argued in his behalf as presenting error. We shall discuss only those which will probably be raised on another trial.
The government introduced evidence showing that the post office department denied defendant the use of the mails prior to the sending of the circular, or, as stated by the witnesses, issued a fraud order against him, after which he successively used the names of Tillman and others in carrying on his business, and that the government then issued fraud orders against those names. It is insisted, under Harrison v. United States, 200 F. 662, 119 Cow. C. A. 78 (6 Cow. C. A.), that the admission of this evidence was error because of its tendency to disparage defendant with the jury. If its effect was so restricted, it was clearly inadmissible, but a different question was presented if the showing of the orders was reasonably necessary to prove some element of the offense. In the latter case the incidental effect would yield to the larger purpose. The indictment charged that Tillman's name was used in executing the scheme because defendant had been denied the use of the mails. Evidence of that use and of the reason therefor was indispensable to proof of defendant's part in the scheme as well as his use of the mails in executing it. The other orders were not related to this offense and should have been excluded.
Other false representations, not connected with these dogs and with which Woodward, to whom the circular was sent, was not concerned, were admitted in evidence. It is claimed that they had no bearing on the offense alleged, and that they amounted to nothing more than proof of other offenses. Some of them were made prior to and others after the mailing of the circular to Woodward. Those that occurred prior thereto were competent to show the existence of the general scheme of which the sending of the circular was a part as also the intent in mailing it. McLendon v. United States (C. C. A.) 2 F.(2d) 660. Those occurring after the mailing of it were not competent for either purpose, as they could and might have been wholly disassociated from the scheme in question or the gravamen of the offense charged.
The records of the state penitentiary showing defendant's confinement therein when the circular was sent were made a part of the government's evidence in chief. They were admitted on the theory that defendant, being absent from his place of business, made certain representations in the circular of which he had no knowledge. In our view they signified nothing in that respect, their sole effect being to discredit the defendant with the jury. This was not absolved by the later discovery of the same fact on cross-examination of the defendant. He might not have taken the witness stand had the evidence not been introduced by the government in chief. After it was introduced, there was no reason for his refusing to testify or attempting to avoid the injury that would result from an admision of his former conviction. It was proper for the government, after he offered himself as a witness, to show that he had been convicted of a felony, with the view of discrediting his testimony; but, until he had testified, the evidence was not *779 admissible. It may be added that, after the admission was drawn from him, he ought to have been permitted to offer such explanation of his conviction as he cared to make, without detailing the facts and circumstances connected therewith.
Among the instructions requested was one to the effect that, if the jury believed that defendant offered in good faith to refund to the purchaser the money paid for the dogs, if he was dissatisfied with them, and the offer would have been carried out, the defendant should be acquitted. Depending upon the circumstances of the case, including the feasibility of a voluntary or enforced fulfillment, there are conceivable cases where an offer of this character, if made in good faith, would negative an intent to defraud. The facts in this case do not so impress the offer. It was received in evidence as tending to show the absence of fraudulent intent; but the developments of the case did not authorize an instruction specifically referring to it as bearing upon that issue. Nor was the court obliged to charge (though he might have done so) touching the right of defendant to "puff" his dogs or use extravagantly laudatory language in describing them. The misrepresentations did not pertain to matters about which there could be a difference of opinion; they related to facts about which there could be no mistake.
The court was requested to instruct the jury to acquit defendant if they believed the transaction complained of was as consistent with innocence as guilt. That idea in some form should be included in the charge where the evidence is wholly circumstantial or is both circumstantial and direct. It was not embodied in the charge in the Hendrey Case (6 Cow. C. A.) 233 F. 5, 147 Cow. C. A. 75, relied on by defendant, but was, we think, included in the charge here. The court was careful to say more than once that defendant was entitled to every presumption of innocence respecting the various elements of the offense which the government was required to prove beyond a reasonable doubt. It would have been better, however, to have said in definite terms that the accused should not be convicted if in the opinion of the jury the facts in evidence were as consistent with innocence as guilt, or unless the evidence as a whole excluded every other reasonable hypothesis but guilt.
Other assignments of error relied on are unsustainable, but, for the reasons stated, the judgment is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585497/ | 815 F.Supp. 1131 (1993)
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND and Howard McDougall, Trustee, Plaintiffs,
v.
REEBIE STORAGE & MOVING CO., INC., Defendant and Third Party Plaintiff,
v.
LOCAL 705, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Third Party Defendant.
No. 91 C 202.
United States District Court, N.D. Illinois, E.D.
February 25, 1993.
*1132 Margaret Fahrenbach, Rosemont, IL, for plaintiffs.
Edward B. Miller, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
Central States, Southeast and Southwest Areas Pension Funds and Trustee Howard McDougall (collectively "Pension Fund," treated as a singular noun) has brought this ERISA action to collect assertedly unpaid employee benefit contributions from Reebie Storage & Moving Co., Inc. ("Reebie"). In sharp contrast to the short life typically enjoyed (?) by such actions, this one has been agonizingly slow and is not yet even approaching the final disposition stage.[1] Most recently this Court has dispatched, as a legally nonviable claim, Reebie's effort to file a Third Party Complaint against Local 705 of the Furniture Chauffeurs, Piano Movers, Packers & Handlers Union, IBT ("Local 705"). This opinion deals with Reebie's motion for partial summary judgment against Pension Fund. For the reasons stated here, Reebie loses on that motion as well.
Facts
Only a skeletal outline of the facts is required to focus the issues relevant to the current motion. Reebie's obligation to pay contributions for employees in its bargaining unit with Local 705 was created by each collective bargaining agreement ("cba") that those parties entered into (the one now at issue covered the years 1987-90) and by the corresponding Trust Agreements governing the Pension Fund. In each instance the cba was one negotiated by the Movers' Association of Greater Chicago ("Association"), both for its own member companies and for the use of individual employers (such as Reebie) who became parties signatory. Here are the key provisions of the cba and Trust Agreement for purposes of this motion:
cba Art. 6:
Section A. Each Employer shall pay into The Central States, Southeast and Southwest Areas Pension Fund the payments hereinafter set forth and in the manner hereinafter set forth.
The payments required hereunder shall be at the following rates:
(a) January 15, 1987 through March 15, 1990 $55.00 per week plus additional contributions, if any, to be determined by the trustees of the Central States Southeast and Southwest Areas Pension Fund.
*1133 The above payments to be made on behalf of each employee who is paid the weekly guarantee in Article 4, Section E, but excluding "Summer Replacements" (Article 4, Section I). Effective as of February 9, 1981, a daily contribution equal to one-fifth ( 1/5 ) of the applicable weekly contribution shall also be made for each day worked, Monday through Friday, for each employee who is not paid the said weekly guarantee, up to a maximum of five days in any week.
Section B. Payments hereunder shall be made within fifteen (15) days following the end of each calendar month for each work week which has ended during the said calendar month. At the time of transmission of the aforesaid monthly payment, the Employer shall also transmit a list of the employees for whom contributions are being made and the amount of the contribution for each such employee. It is understood, however, that the making of a contribution for any employee does not guarantee his coverage under eligibility for or benefits under the governing Pension Plan, since such matters are governed solely by the terms of the Pension Plan itself.
The payment to the Pension Fund, as provided hereinabove and in the applicable trust agreement, shall not constitute or be deemed wages due the employee. It is understood and agreed that the sole liability of the Employer under this pension program shall be the payments of the contributions to the Pension Fund hereinabove set forth and as provided in Article 5, Section B.
The Association shall take such action on behalf of itself and the Employer as may be required under the terms of the governing Pension Trust Agreement and applicable laws in order to implement the terms of this Article. The Union shall submit to the Association the information on contributions to the Fund by Employers covered by this Agreement.
cba Art. 2A, § B:[2]
Section B. In the event that the Union enters into any separate contract which shall contain any provisions more favorable to the Employer than the corresponding provision of this Agreement then such provision shall automatically be substituted for the corresponding provision of this Agreement and become a part hereof. The Union shall supply the Association with a signed copy of any such contract which grants more favorable terms to the Employer involved within twenty-four (24) hours of its execution; and if any question arises as to whether the provisions of any separate agreement are more favorable to the Employer than the provisions of this Agreement, the Union shall supply the Association, upon request, with a signed copy of such separate contract.
Trust Agreement Art. III, § 1:
Any agreement or understanding between the parties that in any way alters or affects the Employer's contribution obligation as set forth in the collective bargaining agreement shall be submitted promptly to the Fund in the same manner as the collective bargaining agreement; any such agreement or understanding between the parties that has not been disclosed to the Fund as required by this paragraph shall not be binding on the Trustees and shall not affect the terms of the collective bargaining agreement which alone shall be enforceable.
Reebie and Local 705 executed and delivered the cba in August 1987 but because it really represented Reebie's signing on to an earlier Association-negotiated agreement, the cba was made effective retrospectively to January 15, 1987. Three months before Reebie and Local 705 signed up in that fashion, Local 705 had signed a letter agreement with Jackson Storage & Van Co. (the "Jackson Agreement"), setting out some arrangements applicable to Jackson that differed from the terms of the blanket agreement that had *1134 been negotiated by Association. In part the Jackson Agreement provided:
2. The Agreement [between Local 705 and Association] will apply to the four current seniority employees and any seniority employees added pursuant to paragraph 5 below. These employees shall receive the negotiated wage increases and contributions shall be made on their behalfs to the Health & Welfare and Pension Plans as set forth in the Agreement whenever they perform work in the classifications listed in Article 4 of the Agreement.
3. When seniority employees are offered fulltime work (40 hours per week) or are otherwise unavailable because of absence or lawful termination, Jackson may utilize independent contractors, subcontractors or nonunit employees to perform any and all work. Nothing in the Agreement shall apply to restrict or limit the utilization of such persons and, if employees are utilized, no part of the Agreement shall apply to them and they shall not be considered employees under the Agreement for any purpose.
4. Jackson agrees that on commercial moving work located in the loop area of the City of Chicago that it will: (a) give preference to experienced industry employees and members of Local 705; (b) request Local 705 to refer applicants pursuant to article 2, Section C before utilizing nonunit personnel, independent contractors or subcontractors to perform such moving work; (c) pay all helpers and chauffeurs working on such moves the then applicable hourly rate under Article 4; and (d) pay any contribution to the 705 Health and Welfare Fund that may be required by Article 5 for the hours worked on such moves.
5. An employee who works for Jackson on a fulltime basis performing commercial moving work (other than at nights and weekends) for six continuous months or for a total of twelve months in an eighteen month period shall be considered a seniority employee. An employee will be considered fulltime only in those months in which he or she actually works at least 140 hours on commercial moving work. Hours worked on household moving shall not be counted to determine fulltime status.
As its final substantive provision, the Jackson Agreement bound both Local 705 and Jackson to keep its terms confidential and not to disclose them to other moving companies or employers. Thus Local 705 did not tell Reebie about the Jackson Agreement either before Reebie and Local 705 signed up in August 1987 or at any time thereafter before Pension Fund brought this lawsuit.
Applicability of Most-Favored-Nation Prohibition
When Reebie had earlier sought to inject Local 705 into this action as a third party defendant, this Court required that Reebie had to pursue the arbitration remedy prescribed in the cba. Reebie did that and it won a ruling that the Jackson Agreement did indeed qualify as a most-favored-nation agreement that would, by virtue of cba Art. 2A § B, also become part of the contractual relationship between Reebie and Local 705. But Pension Fund was not a party to that arbitration, and this Court is therefore called on to decide the issue as between Reebie and Pension Fund.
Of course the decision of an arbitrator is entitled to respect even though it may not be binding on a court. But in substantial part the arbitrator here drew on non-documentary evidence for his decision past practice, oral discussions and the like while the established ERISA case law in this Circuit has firmly rejected the application against a pension fund of any oral agreements that limit employer contributions in a way inconsistent with the terms of the cba or the pension fund document itself (Central States Southeast and Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148, 1151-56 (7th Cir.1989); Robbins v. Lynch, 836 F.2d 330, 333-34 (7th Cir.1988); accord, such cases elsewhere as Southwest Administrators, Inc. v. Rozay's Transfer, 791 F.2d 769, 775-76 (9th Cir.1986)). Hence this Court must look only at the Jackson Agreement coupled with the cba as grist for its mill on the most-favored-nation issue.
*1135 Whenever parties enter into an agreement with a most-favored-nation clause, the normal reading of that understanding is to look only to the possibility of a future racheting upward in favor of the clause's beneficiary, essentially in these terms:
Here's our current deal. But if I give somebody else a better deal at any point during the life of our contract, I promise to give you the benefit of that better deal too.
But there is no basis for treating a prior understanding with some other party as triggering the most-favored-nation clause at most the contracting party (the putative beneficiary) might complain that the other side should have disclosed the third-party arrangement up front, to enable the putative party to strike a better deal from the outset.
Nor does the fact that the Reebie-Local 705 cba, when it was ultimately agreed to, had an earlier effective date change the analysis. It remains true that the date on which parties enter into an agreement establishes their rights and obligations. So putting aside the question which is not now before this Court of whether Reebie might perhaps have any remedies against Local 705 (on some basis other than that dealt with in this Court's recent ruling dismissing Reebie's Third Party Complaint in this case), this Court is not persuaded that Reebie can claim the Jackson Agreement as a most-favored-nation provision that could affect Pension Fund's rights.[3]
But quite apart from Reebie's difficulties on that score, it cannot carry the day here. Here is how it seeks to put the onus on Pension Fund, attempting to rely on the fact that Pension Fund did not affirmatively inquire of Local 705 and Reebie about the existence of any most-favored-nation element affecting other employers:
1. Reebie's Mem. 7 and 13-14 says:
Plaintiffs admit having a true copy of the 1987-90 collective bargaining agreement between Reebie and Local 705. Although that contract contained the very clear most favored nations clause in its Article 2A, Section B, Plaintiffs have admitted that they at no time inquired of either Local 705 or of Reebie whether 705 had entered into any separate contract containing any provisions more favorable to Reebie than the corresponding provisions of the 1987 agreement, particularly provisions which required pension contributions on less than all of the Employer's bargaining unit employees.
* * * * * *
When Central States was presented with a collective bargaining agreement containing a favored nations clause, it was not asking too much of Central States to require that it ask the parties whether any such separate agreement had been entered into which, when substituted in the collective bargaining agreement in issue, would restrict the scope of the agreement and thus the scope of pension liability in a manner different from the original clauses in the contract.
2. Relatedly, Reebie's R. Mem. 3-4 says this:
Central States had possession of a copy of the Reebie Agreement and were thus on notice that it contained a favored nations clause, thereby being put on notice that there were or could be limitations on Reebie's obligations under that agreement. Just as is true of a holder in due course under the Uniform Commercial Code, one with notice of such limitations may be a holder in due course, but he is subject to those limitations. A person is deemed to have such notice under the Commercial Code, and we respectfully suggest here, when "from all the facts and circumstances known to him at the time in question he had reason to know" of a defense against its future claims made under the contract or instrument. Central States admits that even though it had notice of the favored nations clause and, prior to the institution of this action, it had actual notice of the *1136 Jackson Agreement, it never at any time inquired whether any more favorable contract had been entered into by Local 705 and was thus automatically incorporated into the Agreement.
That kind of contention, which seeks to put the monkey on Pension Fund's back, is wholly at odds with common sense. It would put the trustees of an ERISA plan into the impossible position of having to put questions out continuously (daily? weekly? monthly? or what?) to every participating employer in a multi-employer plan (many of which cover hundreds of employers) to find out whether some side agreement has been entered into that would affect the contribution obligations of other participating employers.[4] And even more importantly for present purposes, Reebie's argument is directly at war with the approach that the multi-employer plan at issue in this case has taken to the most-favored-nation problem: Under the plan, the burden of inquiry and identification of any such changes is placed squarely on the employer (in this instance Reebie) and not on Pension Fund (see the language quoted earlier from Pension Fund Art. III, § 1).
Although Gerber Truck dealt with an undisclosed oral agreement between the union and employer, rather than with an undisclosed written agreement between the union and a different employer that might be incorporated by reference on most-favored-nation grounds, much of what was said there plainly points to reaching the same result here. This opinion will simply refer to, rather than quoting at length, Judge Easterbrook's discussion for the Court of Appeals in Gerber Truck: from the entire right-hand column of 870 F.2d at 1151 to the middle of the left-hand column at id. 1152 (interestingly enough, the court there identified as being barred by ERISA § 1145 an employer's claim "that the local union induced its signature by fraud" as well as a "dozen other lines of defense"), all of the right-hand column of id. at 1153 and all of id. at 1155 (the court there pointed out in both places why it is essential to enforce the employer's promise to the pension plan, and it imposed that obligation on the employer even though "the upshot may be harsh" (id. at 1155)).
In summary, the approach taken in Gerber Truck teaches that as between Reebie and Pension Fund, the risk of nondisclosure of any limitations found outside of the cba document itself must rest on the employer and not on the employee benefits plan. And the fact that such nondisclosure may have resulted as a byproduct of fraud on the part of the union makes no difference.
Conclusion
Usually the result of a summary judgment motion is either to grant it (if there are no genuine issues of material fact, and if the movant is entitled to a judgment as a matter of law) or to deny it (if the existence of material factual issues prevents a dispositive legal ruling). In this instance Reebie's motion has disclosed that it must fail in legal terms.[5] At this point Reebie must therefore be considered liable for full Pension Fund contributions in accordance with the cba's original terms. In light of the need for further discovery on that score, this Court sets the next status hearing for 9 a.m. March 17, 1993, at which point the parties should come prepared to discuss the swift disposition of this case.
NOTES
[1] Reasons for that slowness will not be explored here, for that would create still another diversionary byway. But without necessarily ascribing fault to either party, this Court is constrained to observe that the resources that have obviously been expended here by Reebie would have been far better devoted to an early (and necessarily less costly overall) settlement. "Millions for defense but not one cent for tribute" may have an honored place in our country's early diplomatic history, but it is an absurd approach to litigation.
[2] This section will be referred to throughout this opinion, just as the parties have done in their briefing, as the "most favored nation" provision.
[3] Parenthetically, Reebie has not established that the Jackson Agreement was enforceable even against Jackson's employees (see Merk v. Jewel Food Stores, 945 F.2d 889, 895-96 (7th Cir. 1991)). If that is at all problematic, Merk would certainly cast major doubt (on an a fortiori basis) on any potential enforceability against Reebie's employees of any most-favored-nation application based on the Jackson Agreement.
[4] One other demonstration of the untenability of Reebie's position is that no one in the posture of Pension Fund's trustees could readily tell just by looking at a document such as the Jackson Agreement that it represented a most-favorednation provision as to Reebie. Only Reebie itself, knowing its own personnel and how the approach taken in the Jackson Agreement would affect them, could do that.
[5] It is more than odd for a litigant to tender the kinds of arguments that Reebie does in part moving for a summary judgment and then arguing nonetheless that if its legal position is wrong, there are disputed factual issues that require resolution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585499/ | 33 So.3d 690 (2009)
CHARLOTTE DEVELOPMENT PARTNERS, LLC, Appellant,
v.
TRICOM PICTURES & PRODUCTIONS, INC., a Florida corporation, Park Bench Productions, and General Electric Capital Corporation, a foreign corporation, Appellees.
No. 4D08-4210.
District Court of Appeal of Florida, Fourth District.
December 2, 2009.
Rehearing Denied May 28, 2010.
*691 Michael L. Metzner of Michael L. Metzner, P.A., Pompano Beach, for appellant.
Eric B. Zwiebel of Eric B. Zwiebel, P.A., Plantation, for appellee.
GROSS, C.J.
This case pits a judgment creditor against appellant's claim of a security interest in a cash bond that was deposited with the clerk of the court. Finding no perfected security interest in the cash bond, we affirm the judgment in favor of the judgment creditor. We also reject the claim that appellant was deprived of his right to a jury trial, because its participation in a non-jury trial amounted to a waiver.
In August, 2001, Merrill Lynch Business Financial Services filed a Uniform Commercial Code Financing Statement with the State of Florida. The statement listed Merrill Lynch as the secured party and Tricom Pictures & Productions as the debtor of "a certain Loan Agreement." Additionally, the statement stated that it covered the following "types or items of property"[1]:
All Accounts, Chattel Paper, Contract Rights, Inventory, Equipment, Fixtures, General Intangibles, Deposit Accounts, Documents, Instruments, Investment Property and Financial Assets of Debtor, howsoever arising, whether now owned or existing or hereafter acquired or arising, and wherever located; together with ... all proceeds thereof (including, without limitation, proceeds in the form of Accounts and insurance proceeds).
In April, 2006, Merrill Lynch assigned all of its interest in the security agreement to appellant, Charlotte Development Partners, LLC.
*692 In October, 2005, General Electric Capital Corporation obtained a final judgment against Tricom for $113,002.06.
In late 2007, Patricia Klein, an attorney who had represented Tricom, received $10,000 from the court registry operated by the clerk of the circuit court. That money was from a bond that Tricom had posted[2] in an unrelated 2001 case in which Tricom was the plaintiff. The clerk returned the bond money to the attorney of record because the case was dismissed.
Klein prepared a notice and sent it to creditors of Tricom. The notice indicated that she had recently received $10,000 on behalf of Tricom from the clerk as a result of the dismissal of the 2001 case. The notice stated:
Florida Law dictates that a perfected security interest has priority and as such, the enclosed UCC Financing Statement, dated August 8, 2001, appears to have priority. As such, this office shall transmit ... $10,000 from its trust fund to Charlotte Development Partners, LLC, forty-five (45) days from today's date, unless directed otherwise by a court of competent jurisdiction.
Anyone who feels they have a superior interest to Charlotte ... should promptly adjudicate such issue in their respective courts and take whatever action they deem appropriate. As such, unless this office receives a contrary directive from an appropriate court of law, said disbursement will take place on December 16, 2007.
In response to Klein's notice, GE Capital instituted garnishment proceedings against Klein. Charlotte Development sought to intervene in the garnishment to protect its interest deriving from the 2001 security agreement.
The circuit court held a hearing on the motions to intervene and to determine priority of claims. At the beginning of the hearing, Charlotte Development said that it was not waiving any of its "rights under Statute 77.16," which governs "[c]laims by third persons to garnished property." See § 77.16, Fla. Stat. (2008). The court granted the motion to intervene and said, "[N]ow we are going to get to the merits." Without objection or hesitation, the parties began to address the issue of the priority of interests. Patricia Klein testified. She was examined and cross-examined. The court invited argument "on who is entitled to the $10,000." Charlotte Development made its pitch and GE Capital responded. The hearing evolved into a discussion between the parties, the court, and Klein. At the end of the interchange, the court stated, "[N]o one has traced [the money] back to a collateral that [Charlotte Development has] a secured interest [in]."
At this point, over one hour after the hearing began, Charlotte Development reminded the court that it did not "waive any rights under Florida Statute 77.16" and explained in the "interest of judicial economy [it] wanted to resolve this today." But then the attorney said that he had not waived a jury and that if GE Capital "would like to come back for a jury trial, if [the court] need[s] more information, let's set a jury trial."
The court ruled that Charlotte Development, by its conduct, had waived its right to a jury trial and that GE Capital's interest in the $10,000 was superior to that of Charlotte Development.
*693 We agree with the circuit judge that Charlotte Development waived its right to a jury trial. At the beginning of the hearing, Charlotte Development's attorney obliquely mentioned his client's "rights under section 77.16," but said nothing about a jury trial, which would have been an unusual request in a garnishment proceeding involving $10,000. Both parties jumped at the court's invitation to expeditiously resolve the case on the merits. After an hour, when Charlotte Development perceived that its case was proceeding poorly, it fell back on section 77.16 to extricate itself from an unfavorable decision. A party seeking a jury trial cannot so dip its toe into a non-jury trial and test the judicial waters without waiving the right to have a jury decide the case. Section 77.16(1) contemplates that a jury may be waived. Here, Charlotte Development waived a jury trial by its acquiescence to the non-jury trial. See Del-Rena, Inc. v. KFM, Inc., 789 So.2d 397, 398-99 (Fla. 4th DCA 2001); Schreiber v. Schreiber, 795 So.2d 1054, 1059 (Fla. 4th DCA 2001).
We affirm the circuit court's decision that GE Capital was entitled to the $10,000. The description of collateral in the security agreement was insufficient to create a security interest in the cash bond. GE Capital's judgment lien was superior to the unperfected security interest. See § 679.3171(1)(b)1., Fla. Stat. (2008).
One of the requirements of creating a security interest enforceable against a debtor and third parties with respect to given collateral is that "[t]he debtor has authenticated a security agreement that provides a description of the collateral." § 679.2031(2)(c)1., Fla. Stat. (2008). Section 679.1081, Florida Statutes (2008), controls the sufficiency of description of collateral and provides in pertinent part:
(1) Except as otherwise provided herein and in subsections (3), (4), and (5), a description of personal ... property is sufficient, whether or not it is specific, if it reasonably identifies what is described....
(2) Except as otherwise provided in subsection (4), a description of collateral reasonably identifies the collateral if it identifies the collateral by:
(a) Specific listing;
(b) Category;
(c) Except as otherwise provided in subsection (5), a type of collateral defined in the Uniform Commercial Code;
(d) Quantity;
(e) Computational or allocational formula or procedure; or
(f) Except as otherwise provided in subsection (3), any other method, if the identity of the collateral is objectively determinable.
(3) A description of collateral as "all the debtor's assets" or "all the debtor's personal property" or using words of similar import does not reasonably identify the collateral for purposes of the security agreement.
The parties described covered collateral by using terms contained in the Uniform Commercial Code. The cash bond does not fall under any of the categories of collateral described in the security agreement. The cash bond was not an "account" within the meaning of section 679.1021(1)(b), Florida Statutes (2008), in that it was not a "right to payment" arising under the circumstances identified in the statute. The term "account" does not include a right to payment for "money or funds advanced," which could well describe a cash bond. Id. The cash bond was not a "general intangible," because the definition excludes "money." § 679.1021(1)(pp), Fla. Stat. (2008). It was not a "deposit account" because it was not "maintained with a bank." § 679.1021(1)(cc), Fla. Stat. (2008).
*694 Finally, the cash bond was not a "financial asset" within the meaning of the Code. Under the Code, a "financial asset" is a security; an obligation, share, participation, or other interest "traded on financial markets" or used "as a medium for investment"; or any property held in a securities account by a securities intermediary on behalf of someone else that they have agreed to treat as a financial asset. § 678.1021(1)(i), Fla. Stat. (2008).[3] The bond was obviously not a security, see § 678.1021(1)(o), Fla. Stat. (2008), and was not traded on financial markets or used for investment.
The definition of collateral is broad, and the list provided in section 679.1021(1)(l) is not exclusive. While the parties might have been able to create a security interest in the cash bond by using a more specific description, they failed to do so in this case.
In the circuit court, the parties argued that the cash bond could be categorized as "money." Assuming that such a classification is correct, "[a] security interest in money may be perfected only by the secured party's taking possession under s. 679.3131." § 679.3121(2)(c), Fla. Stat. (2008).[4] While the money was in the possession of the clerk it was not in the possession of Charlotte Development. Attorney Klein's subsequent receipt of the money was not tantamount to Charlotte Development taking possession of the collateral under section 679.3131(3), Florida Statutes (2008). Attorney Klein received the money from the clerk as the attorney, or agent, of the debtor Tricom. See Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d 963, 965 (Fla. 4th DCA 2002). The attorney was "so closely connected to the debtor that the debtor in reality retain[ed] effective possession.... [P]ossession by such a closely connected third person could not constitute secured party possession, and would not be sufficient for perfection." White & Summers, Uniform Commercial Code § 31-8 (5th ed. 2002).
Because Charlotte Development demonstrated no perfected security interest in the cash bond, GE Capital's judgment lien controlled the distribution in this case.
Affirmed.
TAYLOR and HAZOURI, JJ., concur.
NOTES
[1] As did the parties in the circuit court, we assume that the description of the collateral in the financing statement was the same as the description in the security agreement. No security agreement was produced or authenticated, and appellee, General Electric Capital, did not object. See § 679.2031(2)(c), Fla. Stat. (2008). Also, the parties tried the case as if a proper continuation statement had been filed. See § 679.515(1), (3), (4), Fla. Stat. (2008).
[2] For the purpose of this opinion, we assume that an outside entity, Sundown Capital, posted Tricom's funds in the court registry. This fact was the subject of some dispute below, but we do not find it to be legally significant.
[3] Section 679.1021(2), Florida Statutes (2008), makes this definition applicable to UCC Article 9.
[4] At the hearing below, the parties discussed the applicability of section 679.3121(2)(c) to this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585504/ | 508 So.2d 1007 (1987)
Fred A. RODGERS, Jr., et ux., Plaintiffs-Appellants,
v.
NATIONAL DEALER SERVICES, INC., et al., Defendants-Appellees,
DOTD-Office of Highways, Defendant-Appellant.
No. 18725-CA.
Court of Appeal of Louisiana, Second Circuit.
June 10, 1987.
Rehearing Denied July 9, 1987.
Charles W. Seaman, Natchitoches, for plaintiffs-appellants.
John W. King, Baton Rouge, for DOTD-Ofc. of Highways, for defendant-appellant.
*1008 Cook, Yancey, King & Galloway by Benjamin C. King and Benjamin C. King, Jr., Shreveport, for George S. Dement and Bill Hanna Ford, Inc., for defendants-appellees.
Before HALL, C.J., and MARVIN and LINDSAY, JJ.
MARVIN, Judge.
From a judgment awarding almost $283,000 damages and allocating fault 60 percent to the State DOTD and 40 percent to the driver of a car that went out of control in an improperly marked and dangerous curve on a state highway, these appeals were taken by DOTD, by Rodgers, the plaintiff-passenger in a pickup who suffered injury when the car collided with the pickup, and by Rodgers' wife.
DOTD seeks to reverse the judgment insofar as it finds DOTD's fault caused or contributed to the accident. Rodgers seeks to increase the damage award and to recover damages for loss of future earnings. Rodgers' wife seeks to increase the $7,500 that was awarded her for loss of consortium.
We amend to allow damages for loss of earning capacity. Folse v. Fakouri, 371 So.2d 1120 (La.1979). As amended, and in all other respects, we affirm.
SCOPE OF REVIEW
We review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Allocation of fault is a factual finding which an appellate court does not disturb unless, upon articulated and detailed analysis and reasons, that finding is demonstrated to be clearly wrong. Reck v. Stevens, 373 So.2d 498 (La.1979); Abraham v. Hanover Ins. Co., 420 So.2d 526 (La.App. 2d Cir.1982); Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3d Cir.1984); Thomas v. Missouri-Pacific R. Co., 451 So.2d 1152 (La.App. 3d Cir. 1984); Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984).
A trier of fact may accept or reject in whole or in part either the opinions of experts such as an accident reconstruction expert, or the testimony of other witnesses who are not experts but who were involved or were present at the scene. Tyler v. Richardson, 476 So.2d 899 (La.App. 2d Cir. 1985). We find no error in the trial court's assessment of the evidence.
FACTUAL FINDINGS
The trial court's conclusions that DOTD had not posted a speed limit sign or a curve sign and had not "recently" painted readily-visible edge lines on the highway are clearly supported by the DOTD witnesses and records. The highway became a part of the state highway system April 27,1982. The accident occurred at 10:20 p.m. on March 3, 1983. The highway was not "striped" between July 1982 and April 1984. No signs were installed or erected on the highway before September 20, 1983. DOTD's inspector was not informed that the highway had become a part of the state highway system until August 22, 1983. DOTD did not inspect the highway as it is required to do until on or after August 22, 1983.
The curve was downhill from the negligent car driver and was difficult to see at night. Twenty similar accidents had occurred at the unmarked curve in about eight years when a motorist found himself or herself in the curve at an unsafe speed and lost control of the vehicle.
We agree with the analysis of DOTD and of the trial court that shows the car driver was negligent in his speed, observation, and control of his automobile. We do not agree with DOTD's contention that it was not at fault in causing the accident.
DOTD'S FAULT
DOTD did not comply with its Manual for Uniform Traffic Control Devices in this instance as LRS 32:235(A) requires and did not timely act between April 27, 1982, and August 22, 1983, to determine what control devices were needed on this highway. Hatcher v. State, Through Dept. of *1009 Transp. & Dev., 467 So.2d 584 (La.App. 3d Cir.1985).
DOTD owes a duty to highway traffic to warn of a dangerous curve. A motorist is not required to anticipate a curve to which his attention is not directed. Craft v. Caldwell Parish Police Jury, 455 So.2d 1226 (La.App. 2d Cir.1984). The governing agency is not relieved of its duty to erect warning signs because the motorist was negligent. DOTD's duty extends to protect even the negligent motorist. Gadman v. State, Through D. of Transp. & Dev., 493 So.2d 661 (La.App. 2d Cir.1986).
In Gadman, supra, we recognized the presumption that a motorist will obey an appropriately placed sign warning of a dangerous curve as well as DOTD's burden to rebut that presumption. We also increased the allocation of fault to DOTD from 60 percent to 75 percent, while lowering the motorist's fault from 40 to 25 percent. Compare Ledbetter v. State, Thru Dept. of Transp. & Dev., 502 So.2d 1383, 1388 (La.1987), where it was noted that "adequate warning," more likely than not, would have prevented the accident. We apply Ledbetter's reasoning here:
"[The] total lack of any warning signs whatsoever was a cause-in-fact of the accident. Since the Department had a duty to warn ... and since the risk to plaintiff was within the scope of that duty, the Department's breach of that duty ... was a concurrent legal cause of the accident.
* * * * * *
We cannot say that the allocation of sixty percent fault to the Department was not just and proper on the record, and we would not have granted certiorari on this issue alone."
The essence of DOTD's argument is that the trial court was clearly wrong in not accepting the testimony of DOTD's accident reconstruction expert that the car never left the paved roadway and was traveling in excess of 65 mph. Conflicting testimony by others who were involved in the accident and by the officer who investigated the accident, as well as photographs in the record, which were accepted as credible by the trial court, established that the pickup had been driven onto the right shoulder of the highway in an attempt to avoid the out-of-control car and that the car was not being driven in excess of 65 mph and was off the highway when the left side of the car struck the left front side of the truck.
We adopt the trial court's reasons allocating fault which we have here summarized. The trial court's reasons are clearly supported by the law and the record.
QUANTUM
The trial court awarded Rodgers damages in the amount of $275,437.77 and awarded $7,500 to his wife for her loss of consortium. Rodgers' damages were itemized by the trial court as follows:
Pain, suffering and disability $120,000.00
Loss of past income 81,608.79
Past medicals 41,295.20
Future medicals 25,033.80
Loss of future services 7,500.00
___________
total $275,437.77
PAIN-DISABILITY
Rodgers argues that the trial court's general damage award was too low and an abuse of discretion. Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion. To make this determination we look first, not to prior awards, but to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to this case and this individual may we conclude that the award is inadequate. See Reck v. Stevens, supra; Cariere v. State Farm Ins. Co., 467 So.2d 867 (La.App. 2d Cir.1985). Prior awards under similar circumstances serve only as a general guide. In such review, we determine whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. See Reck v. Stevens, supra; Wactor v. Pickens Lumber Co., 505 So.2d 815 (La.App. 2d Cir.1987).
The night of the accident, March 3, 1983, Rodgers was taken to Willis-Knighton Hospital where he was examined by Dr. Joffrion, *1010 who diagnosed a fracture dislocation in the right pelvis area and abdominal bleeding. Rodgers' abdominal bleeding delayed surgery on his pelvis. The bleeding was treated by the insertion of a nasogastric tube. On March 10, surgery was performed by Dr. Joffrion to repair the fractured hip by opening the hip joint and inserting bone screws. Rodgers' leg was in traction after the surgery to remove pressure from the hip joint. Upon release from the hospital on March 25, Rodgers was required to use crutches and continued taking medication for pain.
On May 13, 1983, Rodgers was again admitted to Willis-Knighton. A CAT scan revealed that a bone screw had loosened and migrated into the hip joint. A second surgery was performed by Dr. Joffrion which involved re-opening the hip through the previous incision and removing the bone screw. Rodgers continued seeing Dr. Joffrion on a frequent basis. On August 8, 1983, Rodgers complained of severe and increasing pain. X rays showed narrowing of the hip joint space caused by loss of cartilage. Dr. Joffrion performed surgery to accomplish total hip joint replacement on October 25, 1983. The ball and neck of the femur were removed and an artificial ball and socket were inserted to create a new hip joint. Rodgers was discharged from the hospital on November 4, 1983.
Rodgers continued seeing Dr. Joffrion throughout 1984 and 1985 through the time of trial. In June 1984, Dr. Joffrion noticed that Rodgers' left leg was approximately two-thirds of an inch shorter than his right. Dr. Joffrion stated that this discrepancy was in part caused by the surgery and in part was congenital. A prescribed heel lift did not relieve Rodgers' problem. His gait was less smooth and the heel lift put more pressure on the hip prosthesis. On November 13, 1984, Rodgers was again admitted to the hospital with complaints of back pain which were related to the accident. He was hospitalized for six days and underwent a myelogram.
Each of Rodgers' three surgeries were painful. He was hospitalized for about 45 days and saw his treating physician some 30 times prior to trial. Dr. Joffrion assessed a 35-40 percent permanent partial disability of the right leg as a whole and stated that Rodgers would not be able to do excessive walking, stooping or climbing, and would have difficulty sitting or standing for long periods of time.
Rodgers' total medical bills at the time of trial were in excess of $60,000. Future medical treatment will be necessary and may include surgical implantation of a new hip prosthesis. Rodgers has used and may permanently have to use either crutches or a cane to assist him when walking. Dr. Joffrion stated that Rodgers will continue to suffer some permanent degree of pain in the future which will require medication.
In Thompson v. T G & Y Stores Co., 448 So.2d 895 (La.App. 3d Cir.1984), the court affirmed an award of $60,000 to an 82-year-old woman who sustained a fractured hip. Surgery was performed on two occasions, once to insert a prosthesis, and secondly to completely replace the hip joint. She was hospitalized for 28 days. As a result of her injuries and problems with the prosthesis, her activity was severely curtailed. Her pain was permanent and continuing and she was required to use a walker.
In Bossier v. DeSoto General Hospital, 442 So.2d 485 (La.App. 2d Cir.1983), the plaintiff was a 57-year-old woman who sustained a hip fracture and a serious knee injury. Two operations were performed on her hip and knee and required hospitalization for 35 days. Future knee surgery was likely and she suffered a significant permanent disability of her leg. We found the general damage award of $125,000 not to be excessive.
The cases of Pawlak v. Brown, 430 So.2d 1346 (La.App. 3d Cir.1983), and Burgess v. City of Shreveport, 471 So.2d 690 (La.1985), cited by plaintiff, involved injuries and treatment fairly similar to that of Rodgers. In both cases, the plaintiffs were awarded $200,000 in general damages. However, each case must be decided on its own facts and circumstances and as we have noted, prior awards serve as only a general guide. See Wactor, supra. Considering *1011 the totality of the evidence, we find no abuse of discretion in the trial court's general damage award of $120,000.
LOSS OF EARNING CAPACITY
The trial court failed to make an award for future loss of income, noting that Rodgers had worked in a supervisory capacity during late 1984 and the first six months of 1985. Rodgers retired prior to trial, explaining that he was no longer physically able to run his business. The trial court noted that Rodgers' business was financially successful during this time.
The record shows that Rodgers and his wife owned a construction business, specializing in the construction and renovation of service stations. Rodgers was actively involved in all phases of the business. He prepared bids for potential jobs and supervised the jobs once they were obtained. Rodgers was required to physically inspect the proposed jobsites. This involved a great deal of travel back and forth to the jobsites, and walking, stooping and bending to obtain information necessary to submit a bid. Rodgers climbed, walked on uneven surfaces, and performed manual labor from time to time to supervise and assist his employees during construction work.
Before the accident, Rodgers was a hardworking, diligent man who had no serious health problems and who actively worked in his construction business. Dr. Richard Galloway, a vocational rehabilitation expert who tested Rodgers, testified that Rodgers would be unable to do the same type of work he did before the accident. Galloway further stated that because of his age and other factors, Rodgers would likely be unable to work in a different vocation in the future. Rodgers was 63 years old when the accident occurred.
Dr. Joe Ben Hayes, a psychiatrist who first saw Rodgers in August 1984, continued to see him approximately twice a month prior to trial. Dr. Hayes testified that Rodgers would probably continue to require his treatment for at least six months after trial. Dr. Hayes said that Rodgers was an emotionally stable man before the accident, but that he became extremely depressed after, because of his inability to do the things he had done before. Rogers experienced a decreased sexual motivation and became irritable. Dr. Hayes attributed Rodgers' emotional problems to the accident, and explained that although Rodgers' condition had improved somewhat, he advised him not to try to go back to work.
We find that the trial court erred in failing to make an award for loss of earning capacity. A loss of future income award is not predicated merely upon the difference between a plaintiff's earnings before and after a disabling injury, but also encompasses the loss of one's earning potential the loss or reduction of a person's capability to do that for which he is equipped by nature, training and experience, and for which he may receive recompense. See Folse v. Fakouri, supra; Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La.App. 2d Cir.1984).
An award for future loss of earnings is inherently speculative and cannot be calculated with absolute certainty. The most that courts can do is exercise sound discretion and make an award that in the light of all facts and circumstances is fair to both litigants while not being unduly oppressive to either. Unbehagen v. Bollinger Workover, Inc., 411 So.2d 507 (La.App. 1st Cir. 1982); Viator v. Gilbert, 216 So.2d 821 (La.1968).
A number of factors are pertinent to the determination. Loss of future income, life expectancy, work life expectancy, discount and inflation rates, physical condition before and after the injury, past work record, and the amount plaintiff probably would have earned absent the injury complained of, must be considered. Unbehagen, supra; Morgan v. Willis-Knighton Medical Center, supra. Compare Wactor, supra.
Rodgers resumed working during the two year period before trial but under difficult circumstances. He testified that he was forced to retire because he was no longer physically able to perform his job. His business showed a net income in 1982, the year before the accident, of about $44,000. *1012 In the first six months of 1985, his business showed a net income of approximately $64,000. The trial court reasoned that this increase in income indicated that Rodgers had experienced no loss of earning capacity. We must respectfully disagree. The evidence shows that Rodgers' capacity to actively perform the work he did prior to the accident was substantially diminished. That Rodgers continued to try and manage his business for a time, even while injured, is to his credit. That his business was successful during this time does not change the fact that he was forced to retire because of his disability. His earnings in 1984 and 1985 derived primarily from inspections and bids he made before the accident.
Plaintiff's economic expert, Dr. Thames, testified that Rodgers had a future economic loss of approximately $475,000. Dr. Thames, however, included future medical costs of $34,000 and $110,000 for loss of household services in this amount. In addition, Thames' estimation was based on Rodgers having a remaining work life expectancy of 11.6 years. We find these figures to be unrealistic and unsupported by the evidence. Plaintiff argues that the trial court's award of $7,500 for his loss for inability to do household services should be increased. We shall not disturb this award.
The plaintiff's net income was shown to have averaged $51,000 annually for the five-year period before the accident. The evidence supports the conclusion that Rodgers could and would have worked at least an additional three years beyond 1985 had it not been for his disability. Any award for loss of earning capacity, of course, is made as a projection or estimate of what might have been. Considering all the circumstances of this plaintiff we deem $100,000 for loss of earning capacity would be a fair and just award. Any projection beyond three years is not justified. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)
LOSS OF CONSORTIUM
Rodgers' wife complains that the award of $7,500 for loss of consortium is too low. The trial court noted that Rodgers' injuries had caused a strain in the couple's relationship, in that Rodgers had become irritable, depressed, and had experienced a diminished sexual motivation. In Finley v. Bass, 478 So.2d 608 (La.App. 2d Cir.1985), we affirmed an award of $5,000 to a wife whose husband suffered a serious aggravation of pre-existing injuries that left him unable to continue his trade as a boilermaker. While probably on the lower end of the discretionary scale, we do not find the award so low as to constitute an abuse of discretion, and affirm this part of the judgment.
DECREE
We amend to award Fred Rodgers, Jr. $100,000 for loss of earning capacity. Costs of the appeal, to the extent legally permitted, are assessed against appellant, DOTD. In all other respects, the judgment is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585505/ | 33 So.3d 833 (2010)
Willie James JACKSON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-3059.
District Court of Appeal of Florida, Second District.
May 7, 2010.
*834 Peter Lombardo, Sarasota, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
A jury convicted Willie Jackson of aggravated battery with a deadly weapon and aggravated assault with a firearm. Of the several issues Jackson raises on appeal, *835 we find merit in his assertion that the circuit court erred in its handling of his request to dismiss his appointed counsel. Accordingly, we reverse.
About six months before trial, Jackson filed a written motion to dismiss his court-appointed attorney. The motion apparently was a preprinted form with blank lines on which details such as Jackson's name, case number, and his attorney's name were handwritten. In the first three paragraphs, the form motion alleged that defense counsel failed to supply Jackson with pretrial materials such as discovery, that counsel had made statements "deterring this cause to be tried by a jury," and that "[t]he defendant feels that he/she will not be rendered adequate assistance of counsel." In the next six paragraphs, the motion recited legal argument on the right to effective assistance of counsel and the importance of pretrial investigation. In a final "wherefore" paragraph, Jackson asked for an order dismissing his attorney and stated that he "would be better served if another legal counsel be appointed to this cause."
The circuit court summarily denied the motion without holding a hearing. In its order, the court observed that Jackson's defense attorney had been on the case for only about a month. The order also stated that Jackson's "boilerplate" motion failed to "clearly indicate why he should be entitled to replacement counsel" and lacked any allegation that his appointed counsel was not properly representing him.
The court's observations notwithstanding, it erred by denying the motion without at least making a preliminary inquiry into Jackson's request to discharge his appointed counsel. In Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), the Florida Supreme Court adopted a procedure, based on Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for inquiring into a criminal defendant's complaints about appointed counsel. When faced with a motion to dismiss appointed counsel, the court has a duty to ascertain from the defendant whether the request is unequivocal and to explore the reasons behind the request; this is a preliminary Nelson inquiry. Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004). In Maxwell, we observed that "[d]epending on the answer to the preliminary Nelson inquiry, a complex, multi-faceted combined Nelson and Faretta hearing could ensue, or the inquiry could end there." Id. (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which established the standard for self-representation by a criminal defendant). A court's failure to make this preliminary inquiry is a structural defect in the trial requiring reversal as "per se error." Id. at 1103; see also Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009); accord Nesmith v. State, 6 So.3d 93, 94 (Fla. 1st DCA 2009).
In some cases, a preliminary Nelson inquiry might disclose that the defendant is merely complaining about his counsel's performance without requesting counsel's dismissal. See, e.g., Lowe v. State, 650 So.2d 969, 975 (Fla.1994) (making no mention of request to discharge attorney during defendant's expressions of dissatisfaction with appointed counsel); cf. Davis v. State, 703 So.2d 1055, 1058-59 (Fla.1997) (concluding Nelson was inapplicable because defendant never made unequivocal request to discharge appointed counsel). In other cases, such as this one, the defendant may be asking for counsel's dismissal.
When a defendant requests that the trial court discharge his court-appointed attorney for ineffective assistance, the court is obligated to determine whether adequate grounds exist for the attorney's *836 discharge. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988) (holding that a motion to discharge counsel for incompetence requires that the trial court inquire into the actual effectiveness of counsel); Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). If the court finds that the defendant does not have a legitimate complaint, then the court is required to advise the defendant that if his request to discharge is granted, the court is not required to appoint substitute counsel and that the defendant would be exercising his right to represent himself.
Trease v. State, 768 So.2d 1050, 1053 (Fla. 2000) (emphasis added).
Here, Jackson's motion unequivocally expressed his desire to discharge his appointed counsel. Even if we could assume both that the circuit court properly relied solely on the written motion as its source of information regarding Jackson's complaints and that it properly found the complaints insufficient to require the appointment of substitute counsel, the court was obliged to inquire whether Jackson wished to persist in discharging his attorney, thereby waiving his right to court-appointed counsel and exercising his right of self-representation. See Montgomery v. State, 1 So.3d 1228, 1230 (Fla. 2d DCA 2009); see also Hardwick, 521 So.2d at 1074 (noting that attempts to dismiss court-appointed counsel are presumed to be an exercise of defendant's right to self-representation).
The State relies on Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988), and argues that we should apply an abuse of discretion standard. But in Kott the court actually inquired of the defendant regarding his request. 518 So.2d at 958. Although it was not an extensive inquiry, the defendant was given an opportunity to argue his motion to discharge counsel. Id. Because there was a preliminary Nelson inquiry in Kott, that case is distinguishable. Likewise, the State's reliance on Moultrie v. State, 679 So.2d 25 (Fla. 4th DCA 1996), is misplaced. Moultrie involved a similar form motion to dismiss court-appointed counsel. But again, in that case the court held a hearing on the motion even if its inquiry was "less than thorough." Id. at 26. Here, the circuit court denied the motion without making any inquiry at all.
The State also contends that any error was harmless because the evidence of Jackson's guilt was overwhelming. But while the failure to conduct an adequate Nelson inquiry is subject to an abuse of discretion standard and, presumably, a harmless error analysis, the failure to conduct any inquiry is per se error. See Maxwell, 892 So.2d at 1102-03. Compare Kott, 518 So.2d at 958 (finding harmless error in court's "failure to conduct a more extensive inquiry regarding the merits of the motion to discharge"), with Nesmith, 6 So.3d at 94 (holding that court's "failure to conduct a preliminary inquiry into the defendant's reason for seeking to discharge court-appointed counsel is not harmless error; rather, it is `a structural defect in the trial requiring reversal as per se error'") (quoting Maxwell, 892 So.2d at 1102-03)).
In the absence of any inquiry into the legitimacy of Jackson's complaints about his attorney or, at the very least, into Jackson's desire to proceed pro se if he persisted in his request to discharge counsel, we must reverse.
Reversed and remanded for a new trial.
CASANUEVA, C.J., and WALLACE, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585528/ | 508 So.2d 253 (1987)
Ronald A. TURNER and Mary P. Turner
v.
AZALEA BOX COMPANY.
85-505.
Supreme Court of Alabama.
May 29, 1987.
Jay A. York of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellants.
Mack B. Binion of Lyons, Pipes & Cook, Mobile, for appellee.
STEAGALL, Justice.
Ronald A. Turner and his wife Mary P. Turner appeal from a summary judgment granted in favor of Azalea Box Company. We affirm.
The Turners' complaint against Azalea Box alleged a cause of action under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). Ronald Turner alleged that Azalea Box manufactured and sold a wooden pallet to Coca-Cola Bottling Company of Mobile in a defective and unreasonably dangerous condition and that that defective pallet proximately caused his injuries. Mary Turner alleged a loss of consortium as a result of her husband's injuries. The remainder of this opinion will refer only to Ronald A. Turner as the plaintiff/appellant.
On July 7, 1982, Turner was injured while performing his duties as a warehouseman in the shipping department at the Wometco Coca-Cola Bottling Company. Coca-Cola uses wooden pallets as platforms upon which warehousemen stack various Coca-Cola products. After a pallet is loaded, it is placed upon a truck for shipment. While Turner was loading pallets he allegedly injured his knee when a slat on a pallet broke as he stepped across it. The allegedly defective pallet was not retained by Coca-Cola and has not been located since the accident occurred.
The issues on appeal are whether a scintilla of evidence exists to support Turner's claim that Azalea Box manufactured the allegedly defective pallet, and whether a scintilla of evidence exists to support Turner's claim that the pallet was defective.
The evidence is undisputed that prior to Turner's accident Coca-Cola purchased pallets from Azalea Box and from Gulf Pallet Company. From January 1982 through *254 June 29, 1982, Coca-Cola purchased 2500 pallets from Azalea Box, of which 1500 were purchased from April 29, 1982, through June 29, 1982. During this time, Coca-Cola purchased 1950 pallets from Gulf, of which 300 were purchased from May 4, 1982, through May 12, 1982.
There was also evidence that Coca-Cola customarily exchanged pallets with other bottling companies throughout the Southeast and continuously repaired pallets purchased or received from all sources.
All the pallets used by Coca-Cola were wooden, similar in size, and had no distinguishing characteristics that would identify the manufacturer of a particular pallet.
Turner testified that the pallet in question appeared to be brand new. New pallets were ordered by Coca-Cola whenever the existing supply was low, and orders were placed more frequently in the summer months. The average life span of a pallet was estimated to be five to seven years.
In an AEMLD action, the plaintiff must prove that the defendant manufactured and/or sold the allegedly defective product. Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976).
"Summary judgment is proper only in cases which present no genuine issues of material fact and in which the moving party is entitled to judgment as a matter of law. If the evidence or any reasonable inference therefrom contains the merest gleam, glimmer, spark, the least particle or the smallest trace in support of the theory of the nonmoving party, the trial court must allow the factual questions to go to the jury."
Griffin v. Little, 451 So.2d 284, 287 (Ala. 1984).
However, "evidence which affords nothing more than mere speculation, conjecture, or guess is wholly insufficient to warrant submission of the case to the jury." Roberts v. Carroll, 377 So.2d 944, 946 (Ala. 1979); see also Headrick v. United Insurance Co. of America, 279 Ala. 82, 181 So.2d 896 (1966).
When evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation. Roberts v. Carroll, supra.
In the instant case, there were three, and possibly four, sources from which the wooden pallet in question could have come. Coca-Cola received pallets from Gulf, Azalea Box, and other bottling companies in the area. A fourth source was Coca-Cola's repair of pallets. From this evidence, two things can be equally inferred: (1) Azalea Box manufactured and sold the subject pallet to Coca-Cola, or (2) Azalea Box did not manufacture and sell the subject pallet to Coca-Cola. Accordingly, to use this evidence to support Turner's contention that Azalea Box supplied the pallet in question to the exclusion of other sources is to engage in speculation and conjecture.
Turner cites three cases which he asserts stand for the proposition that the identity of a manufacturer of a defective product may be proven by circumstantial evidence. Coca-Cola Bottling Co. v. Miller, 47 Ala.App. 14, 249 So.2d 630 (1971); Birmingham Coca-Cola Bottling Co. v. Gosa, 279 Ala. 316, 184 So.2d 827 (1966); Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147 (1928). We agree that circumstantial evidence may be used to prove identity. However, in each of these cases, there were no alternative sources; thus, no speculation or conjecture was involved.
Because of our holding above, we pretermit discussion of whether there was a scintilla of evidence to establish that the pallet was defective.
The judgment of the trial court is affirmed.
AFFIRMED.
JONES, ALMON, SHORES and ADAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585529/ | 382 N.W.2d 2 (1986)
222 Neb. 13
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Corporation, Appellee,
v.
ROYAL INSURANCE COMPANY OF AMERICA, a Corporation, Appellant,
Maxine M. Todd and Jeanne Dennison, Special Coadministrators of the Estate of Jack C. Todd, Deceased, et al., Appellees.
No. 84-772.
Supreme Court of Nebraska.
February 21, 1986.
*4 John F. Simmons of Wright, Simmons & Selzer, Scottsbluff, for appellant.
James M. Mathis of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, P.C., Gering, for appellee State Farm.
Benjamin M. Shaver, Scottsbluff, for appellees Special Coadministrators.
BOSLAUGH, CAPORALE, and GRANT, JJ., and WOLF, District Judge, and COLWELL, District Judge, Retired.
COLWELL, District Judge, Retired.
This is a declaratory judgment action to determine the rights and obligations of two liability insurance companies arising out of a separate pending wrongful death action brought by the coadministrators of the estate of Jack C. Todd, deceased, who died as the result of a pedestrian-auto accident. The uninsured driver of the auto, defendant Michael A. Robinson, was driving it with the permission of defendant Original Equipment Co., doing business as Aulick Truck & Trailer (Aulick), insured by Royal Insurance Company of America. Defendant Richard E. Robinson, the father of Michael, was insured by plaintiff, State Farm Mutual Automobile Insurance Company, providing liability coverage for a nonowned vehicle by a resident of his household, who was Michael. The issue is whether the auto was covered by Aulick's garage policy. The trial court found that both companies were obligated to provide coverage, but Royal's responsibility was primary. Costs were assessed against Royal, including a $7,000 attorney fee allowed to the Todd estate. Royal appeals.
The determination of factual issues in a declaratory judgment action, which would otherwise be an action at law, will be treated in the same manner as if a jury had been waived. Hence a trial court's findings have the effect of a jury verdict and will not be set aside unless clearly wrong.
Roth v. School Dist. of Scottsbluff, 213 Neb. 545, 549, 330 N.W.2d 488, 491 (1983).
Michael was employed as a truckdriver by Aulick Leasing Corp., an unrelated enterprise not insured by Royal. Sometime after 6 p.m. on October 4, 1982, at the Aulick premises, Michael approached Shane Aulick with a request to drive a car home and to return it the next day. He had done so two or three times before. Shane, the manager of Aulick, consented to Michael's taking a 1978 International Scout (Scout) without any other restrictions. Michael left in the Scout en route to his residence, and the accident occurred shortly thereafter. Michael owned an uninsured pickup truck.
Aulick was in the business of auto sales and repair in Scottsbluff, Nebraska, insured by Royal under a garage policy, later discussed in detail. Royal denies coverage under the garage policy because the Scout was neither an "owned auto" nor a "covered auto" as provided in the policy. The trial court found that Aulick owned the Scout.
Royal assigns four errors: (1) That the court erred in finding that Royal had coverage; (2) and (3) (considered together) That the court erred in finding that Aulick owned the Scout; and (4) That the court erred in the allowance of the $7,000 attorney fee.
Errors Nos. (2) and (3) are first discussed. The policy provided that there was coverage for all owned autos. The ownership question is complicated by five separate certificate of title (title) transactions and two separate chains of car title.
1. "Colorado title." No. M 372060 issued May 11, 1978, to International Harvester Company, showing the previous title number as MSO (manufacturer's statement of origin). This title was assigned to "Aulick Truck & TLR" on September 12, 1978.
*5 2. "Aulick 1979 title." No. 21F 44156 issued to Aulick Truck & Trailer on March 1, 1979, showing the previous title number as Co.M 372060.
3. "Chuck Meyer title." On September 8, 1980, Aulick sold the Scout to Chuck Meyer, and title No. 21F 66822 was issued to him, showing the previous title number as Ne 21F 44156 (Aulick 1979 title). The Meyer title was forthwith delivered to International Harvester Credit Corp. (IHCC) as security for a loan to Meyer. That title was still with IHCC at the time of the accident, although Meyer had traded the Scout back to Aulick on September 15, 1981.
4. "Aulick 1983 title." No. 21G 41810 issued to Aulick Truck & Trailer on November 23, 1983, after the accident, showing the previous title number as COLO M 372060 (the Colorado title). For some unexplained reason Aulick still retained the original Colorado title, which was used again to secure its 1983 title. Apparently, the county clerk had failed to retain the Colorado title when the Aulick 1979 title was issued.
5. "Haley title." Issued to Frank Haley on March 29, 1984, when Aulick sold the Scout to him.
A purchaser who receives possession of an automobile without also obtaining from the owner an assignment of the certificate of title properly notarized and duly executed in accordance with the statutes then in effect acquires no "right, title, claim, or interest in or to" a motor vehicle and does not thereby become the owner of the vehicle in question. State Farm Mut. Auto. Ins. Co. v. Fitzgerald, 214 Neb. 226, 334 N.W.2d 168 (1983).
Title to the Scout was registered in the name of Meyer when it was sold to him on September 8, 1980, on an installment sale contract with recourse, which was noted as a lien on the title when delivered to IHCC, where the Meyer title remained at the time of the accident. When Meyer traded the Scout back to Aulick on September 15, 1981, the IHCC loan had not been paid, and no arrangements were made to get the title assigned. Shane Aulick suggested to Meyer that some paperwork would be required in the future for Meyer to assign the title to Aulick. Without resolving the authenticity of the Aulick 1983 title, we are here concerned with the Scout title at the time of the accident.
Appellees coadministrators of the estate urge that during the September 15, 1981, to November 23, 1983, period, Aulick claimed and exercised ownership of the Scout along with its possession by using it as a utility shop car, driving it 19,776 miles, by including it in its inventory of cars owned for sale, and by holding it out for sale. At the time of the accident it bore dealer's plates. The evidence shows that both Meyer and Aulick understood and intended that Aulick should have full ownership of the Scout; however, it is noted that the same intention was present in Fitzgerald.
In addition to the evidence supporting Aulick's claim of ownership, it is urged that as a licensed dealer Aulick was not required to obtain a title, citing Neb.Rev. Stat. § 60-106(6) (Reissue 1978), which provides in part: "[L]icensed dealers need not apply for certificates of title for motor vehicles ... in stock or acquired for stock purposes, but upon transfer of the same they shall give the transferee a reassignment of the certificate of title on such motor vehicle...." (Emphasis supplied.) Section 60-106 describes general procedures for obtaining titles. Section 60-106(6) is a special procedure for the benefit of licensed dealers to avoid the paper formality of a dealer's obtaining a title for each vehicle held for sale. It does not avoid the requirement discussed in Fitzgerald and provided in Neb.Rev.Stat. § 60-105(1) (Reissue 1984), that in order for a person, which includes a dealer, to claim ownership of a vehicle, the dealer must obtain a duly executed assignment of the certificate of title for a vehicle when it is acquired as part of the stock held for sale. Thereafter, that same certificate can be reassigned, § 60-106(6), by the dealer upon sale. Aulick *6 never acquired an assignment of the Meyer title.
Although the application of the Fitzgerald rule to Aulick's auto sales and auto repair business may seem impractical in an auto sales business, considering the regular daily transfer of car titles and customer use of cars, lost titles, delayed assignment and delivery of titles from customers, and other inoffice business details, nevertheless existing statutes such as § 60-105(1) must be strictly observed, and it is possible for the insured and insurer to formulate and tailor the details of insurance coverage to meet their business needs and responsibilities. Fitzgerald is dispositive of the ownership question; we agree with Royal that Aulick was not the owner of the Scout at the time of the accident, and the court erred in so finding.
That leaves unanswered the first assignment of error, since Royal further contends that the policy does not cover Michael as an insured under the policy because the Scout was not a "covered auto." It was an issue at trial; however, the judge made no findings thereon. It is a key issue here.
Generally, a garage policy is designed to protect automobile dealers, garage keepers, and owners of auto service stations against loss by reason of injury to other property or persons by the use of their autos. Such policies are designed to care for the specialized needs of the particular operation. They are usually construed in the same manner as other insurance contracts, but in case of doubt the policies are to be construed most strongly against the insurance company. Constitution Indemnity Co. v. Lane, 67 F.2d 433 (6th Cir.1933). See, generally, 8 Blashfield Automobile Law and Practice § 319.2 (West 3d ed. 1966).
Royal urges that the Scout was not a covered auto because its use at the time of the accident was for Michael's personal transportation, which was not "in connection with garage business," as provided in the policy.
A covered auto, as defined by the policy, is (1) any owned auto and (2) any nonowned auto "used in connection with your garage business described in these declarations." (Emphasis supplied.) While garage business is not defined in the policy, "garage operations" is defined as "the ownership, maintenance, or use of locations for garage business.... Garage operations includes the ownership, maintenance or use of the autos indicated in Part II as covered autos. Garage operations also include all operations necessary or incidental to a garage business." (Emphasis supplied.)
This court has consistently held that an insurance contract should be considered as any other contract and should be given effect according to the ordinary sense of the terms used. Dairyland Ins. Co. v. Esterling, 205 Neb. 750, 290 N.W.2d 209 (1980). However, when the provisions of the insurance contract are ambiguous or are susceptible of two constructions, the policy must be liberally construed in favor of the insured, or the construction which provides coverage must be adopted. Safeco Ins. Co. of America v. Husker Aviation, Inc., 211 Neb. 21, 317 N.W.2d 745 (1982); Hartford Acc. & Ind. Co. v. Olson Bros., Inc., 187 Neb. 179, 188 N.W.2d 699 (1971). The above terms of the Royal policy relating to nonowned autos are conflicting and ambiguous.
The record provides ample evidence to support a finding that Aulick's use of the Scout was covered because it was a nonowned auto used in connection with the garage business. Shane Aulick, in his deposition, testified that Aulick assumed that it had responsibility as far as insurance purposes and that it carried the Scout on its books as part of the used vehicle inventory held for resale. Shane Aulick also stated that, as an officer of Aulick Truck & Trailer, he considered that the Scout belonged to it. At the time of the accident the Scout had dealer plates attached to it which belonged to Aulick Truck & Trailer. During the time the Scout was in Aulick's possession and was held in its used car *7 inventory, it was driven for approximately 19,776 miles. Vince Aulick testified that the Scout was used whenever transportation was needed in the operation of the garage business. These facts are contrary to Royal's contention that the Scout was not used in connection with the garage business. That leaves Royal's argument that the use of the Scout at the time of the accident was not covered by the policy.
In a similar case the Missouri Court of Appeals found that "[a]ny automobile held or owned by a dealer and actually being offered for sale, is used principally in his business. The fact that it was ... temporarily loaned ... is not controlling of its principal use, no more than that other automobiles in stock were temporarily `stored' on the lot." Rivas v. Killins, 346 S.W.2d 698, 700 (Mo.App.1961). An Illinois appellate court, in interpreting a garage policy, also held that it was immaterial that a loaned automobile was not owned by the repair shop and that the customer who borrowed it was using the vehicle on a social or personal mission. The insurer on the garage policy was thus held liable for damages arising from an accident the customer was involved in while driving the borrowed car. Allstate Ins. Co. v. Urban, 15 Ill.App.2d 386, 146 N.E.2d 387 (1957). While on the present facts it was apparent that Michael Robinson was not a customer, the principles are still applicable, and Michael Robinson was an insured driving a covered auto.
Royal cites Wigington v. Ocean Accident & Guarantee Corporation, 120 Neb. 162, 231 N.W. 770 (1930), and Truck Ins. Exchange v. State Farm Mut. Auto. Ins. Co., 182 Neb. 330, 154 N.W.2d 524 (1967), in support of no coverage. Both cases are distinguishable on the facts. Likewise, its reliance on 8 Blashfield Automobile Law and Practice § 317.4 (West 3d ed. 1966), is inapplicable, since it relates to exclusions for pleasure, business, and commercial uses under personal liability policies which are not comparable in purpose to a garage policy.
Under the facts and circumstances here, Royal's narrow interpretation of the garage policy is untenable; it is an attempt to exclude coverage by interpretation rather than by plain terms in the policy that it prepared.
We conclude and find that at the time of the accident the Scout continued to be a nonowned auto incidentally used as a part of Aulick's garage business and operations and that Michael was driving the Scout with permission while he was a covered insured driver under Royal's garage policy.
The last assigned error concerns the allowance of attorney fees to defendant Todd estate.
"It is the practice in this state to allow the recovery of attorneys' fees only in such cases as are provided for by law, or where the uniform course [of] procedure has been to allow such recovery. As a general rule of practice in this state, attorneys' fees are allowed to the successful party in litigation only where such allowance is provided by statute."
Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 485, 48 N.W.2d 623, 634 (1951); Quinn v. Godfather's Investments, 217 Neb. 441, 348 N.W.2d 893 (1984).
Statutory authority is found in Neb.Rev. Stat. § 44-359 (Reissue 1984):
In all cases where the beneficiary, or other person entitled thereto, brings an action upon any type of insurance policy... against any company, person or association doing business in this state, the court, upon rendering judgment against such company, person or association, shall allow the plaintiff a reasonable sum as an attorney's fee in addition to the amount of his recovery, to be taxed as part of the costs. If such cause is appealed, the appellate court shall likewise allow a reasonable sum as an attorney's fee for the appellate proceedings....
It is noted that prior to 1971 Neb.Laws, L.B. 958, the first sentence of § 44-359 provided: "In all cases where the beneficiary, or other person entitled thereto, brings an action at law...." The 1971 *8 amendment deleted "at law" from the statute.
A declaratory judgment proceeding is an action contemplated in § 44-359. Workman v. Great Plains Ins. Co., Inc., 189 Neb. 22, 200 N.W.2d 8 (1972). Where the insurer brings the declaratory judgment action and the insured defendant prevails, the insured can claim an attorney fee allowance. State Farm Mut. Auto. Ins. Co. v. Selders, 189 Neb. 334, 202 N.W.2d 625 (1972).
The authority to bring an action under § 44-359 has long been interpreted to require that the beneficiary or other person must be entitled to bring an action on the policy at the time the suit was instituted. See Hawkeye Casualty Co. v. Stoker, supra. A judgment creditor of an insured is a person entitled to bring an action and recover fees. Metcalf v. Hartford Acc. & Ind. Co., 176 Neb. 468, 126 N.W.2d 471 (1964).
Appellees coadministrators of the Todd estate contend that Holt County Co-op Assn. v. Corkle's, Inc., 214 Neb. 762, 336 N.W.2d 312 (1983), a suit on account, is authority for the allowance of attorney fees here. In that case the court noted that there was neither a statute nor a known uniform course of procedure authorizing such allowance; however, an allowance was authorized and made pursuant to the inherent powers of the trial court under certain unusual circumstances amounting to "conduct during the course of litigation which is vexatious, unfounded, and dilatory, such that it amounts to bad faith." Id. at 767, 336 N.W.2d at 315; annot., 31 A.L. R.Fed. 833 (1977). That rule is not applicable here, since there is a specific statute, § 44-359, and the record does not support a finding of bad faith on the part of appellant.
It is clear that the Todd estate was not a beneficiary, an insured, a judgment creditor of the insured, or a person entitled to bring an action on the Royal policy at the time suit was commenced, as required in Hawkeye. At most, it was a potential judgment creditor. Accordingly, it could not claim attorney fees under § 44-359, and the trial court so found.
The trial court went on to find and allow attorney fees as a part of a "uniform course of procedure," giving these reasons here summarized: (1) The bringing of the declaratory judgment proceeding prior to resolution of the tort liability question was the decision of the insurance companies; (2) The shoddy business practices of Aulick were the cause of the insurance coverage issue; (3) As in No. 1, timing in the determination of the "person entitled" was a factor; (4) It is necessary to judicially determine that in like circumstances the inclusion of an attorney fee is a uniform course of procedure as a cost of litigation; and (5) Plaintiff provided the expense of the tort litigation and Royal delayed the orderly trial process therein. These reasons do not meet the bad faith rule in Holt.
The Legislature, for more than 70 years, has seen fit to provide for the allowance of attorney fees, § 44-359 (originally Rev. Stat. § 3212 (1913)), in certain cases brought on insurance policies. The Todd estate as a potential judgment creditor cannot claim such fees under the statute, and we are not aware of a uniform course of procedure to allow the same here. The allowance of a $7,000 attorney fee to the Todd estate, chargeable to Royal as part of the costs, was error, and the same is set aside.
The finding of the trial court that Aulick was the owner of the Scout was error. However, the judgment that Royal was obligated under Aulick's garage policy was correct, for other reasons heretofore discussed. It has long been the rule in this jurisdiction that a proper judgment will not be reversed even if the trial court did not give the right reasons. Leo A. Daly Co. v. Omaha-Douglas Public Bldg. Comm., 212 Neb. 533, 324 N.W.2d 252 (1982).
AFFIRMED IN PART, AND IN PART REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585607/ | 508 So.2d 718 (1987)
BARNETT BANK OF EAST POLK COUNTY, Petitioner,
v.
George T. FLEMING, Respondent.
FLORIDA PATIENT'S COMPENSATION FUND, Petitioner,
v.
Barbara Jean GANT and Leon Gant, Jr., Her Husband, Respondents.
TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC. and A.D. Brickler, M.D., Petitioners,
v.
Barbara Jean GANT and Leon Gant, Jr., Her Husband, Respondents.
Nos. 69023, 69062 and 69063.
Supreme Court of Florida.
June 18, 1987.
Roy C. Summerlin and Debra L. Cline of Summerlin and Connor, Winter Haven, for petitioner Barnett Bank of East Polk County.
Brian P. Rush of Anderson & Orcutt, P.A., Tampa, for respondent George T. Fleming.
Craig A. Dennis of Collins, Dennis & Williams, P.A., Tallahassee, for petitioner Florida Patients Compensation Fund.
Harold E. Regan, Tallahassee, for respondents Barbara Jean Gant and Leon Gant, Jr.
John D. Buchanan, Jr. and Edwin R. Hudson of Henry, Buchanan, Mick & English, *719 P.A., Tallahassee, for petitioners Memorial Medical Center & A.D. Brickler.
BARKETT, Justice.
We have for review the conflicting decisions of Fleming v. Barnett Bank of East Polk County, 490 So.2d 126 (Fla. 2d DCA 1986), and Gant v. Tallahassee Memorial Regional Medical Center, 490 So.2d 1020 (Fla. 1st DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Two questions are presented in these cases: (1) whether a prematurely filed motion to dismiss for failure to prosecute under Florida Rule of Civil Procedure 1.420(e)[1] constitutes "record activity" sufficient to bar dismissal of the action, and (2) if not, whether the untimeliness of the motion renders it a nullity requiring refiling to have the motion properly heard. We conclude that the premature filing of such a motion is not "record activity" under the rule and may properly be ruled upon after the expiration of the one-year period.
In Fleming, the counter-defendant, Barnett Bank, filed a motion to dismiss for lack of prosecution on November 19, 1984. The last record activity in the case prior to that motion occurred on February 10, 1984. Thus, February 10, 1985, was the critical date. The only record activity between February 10, 1984, and February 10, 1985, was the filing of the motion in question. On March 17, 1985, the trial court granted Barnett Bank's motion. Thus, although the motion was filed prematurely, it was not heard until after the expiration of the one-year period. In its order of dismissal, the trial court relied on its "inherent authority" to dismiss the case. The Second District reversed, holding that a premature motion to dismiss does not constitute record activity,[2] and for purposes of the rule is a nullity. The district court also held that because the matter was noticed and heard pursuant to Rule 1.420(e), the doctrine of inherent power was inapplicable, rendering the dismissal improper because the trial court had nothing before it upon which to act.[3]
The Gant case arose from a medical malpractice complaint filed against Tallahassee Memorial Regional Medical Center (TMRMC), A.D. Brickler, M.D., and the Florida Patient's Compensation Fund (The Fund). The last record activity in that case prior to the motions to dismiss occurred on May 18, 1984. On May 20, 1985 (the last day of the one-year period), the Fund filed a Rule 1.420(e) motion, and on May 21, 1985, the remaining defendants jointly filed a similar motion.[4] The trial court denied the Fund's motion because it was premature, but granted the remaining defendants' timely motion and dismissed the case. The First District concurred in the denial of the Fund's motion but held that the cause should not have been dismissed because the Fund's motion to dismiss constituted record activity.[5]
*720 The purpose of Rule 1.420(e) is to encourage prompt and efficient prosecution of cases and to clear trial dockets of litigation that essentially has been abandoned. Harris v. Winn Dixie Stores, Inc., 378 So.2d 90, 92 (Fla. 1st DCA 1979). Accordingly, the courts generally have defined "record activity" as any act reflected in the court file that was designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment. This underlying purpose compels our agreement with the Second, Third and Fifth Districts, since an untimely motion to dismiss for lack of prosecution fulfills neither of these objectives.
There is no question that a motion to dismiss for lack of prosecution is activity and is in the record. However, as the Third District noted in Inman, Inc. v. Miami Dade Water & Sewer Authority, 489 So.2d 218, 219 (Fla. 3d DCA 1986),
[B]ecause the goal of the motion is to terminate the cause, the motion is the antithesis of activity reasonably calculated, as it must be, "to advance the cause to resolution." (Citation omitted.) And, just as a court order designed to spur activity is held not to constitute affirmative record activity advancing the cause, (citation omitted), a court order, as here, which rejects the defendant's request to terminate the prosecution, although concededly not impeding the cause, does absolutely nothing to advance it.
A motion to dismiss for lack of prosecution falls in a unique legal category. By filing such a motion, a party is asking the court to look at a case and determine whether any activity of record has occurred for a period of one year. The filing of the motion merely invokes the application of the rule. Consequently, the motion itself cannot sensibly be considered activity precluding dismissal. The basis for a conclusion cannot be deduced or inferred from the conclusion itself. Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla. 1957). To regard a premature motion to dismiss for lack of prosecution as proof of the essential fact necessary to deny the motion, i.e., that there has been record activity, would be illogical. Moreover, to permit a case to be kept alive without any significant movement toward resolution is not consistent with the meaning, spirit, and purpose of Rule 1.420(e).
Accordingly, we hold that a motion to dismiss for lack of prosecution pursuant to Rule 1.420(e), whether initiated by the court or a party, cannot be deemed "record activity" sufficient to defeat dismissal of the case for lack of prosecution.
We turn now to the question of whether a party must refile a prematurely filed Rule 1.420(e) motion upon the expiration of the one year in order to obtain the requested relief. We hold that refiling is unnecessary.
Contrary to the Gants' assertion, we find that an untimely motion to dismiss for lack of prosecution does not prejudice the opposing party. Instead, it confers an advantage to that party by alerting him or her to the lack of activity. We agree with Judge Lehan, concurring in part and dissenting in part in Fleming, that it is
an unnecessary technicality to require ... that the party who filed a motion to dismiss for lack of prosecution before the expiration of one year from the last record activity file another such motion after the expiration of that one year in order to have the subject of that motion properly heard.
490 So.2d at 128. As long as the motion is not ruled upon until after the expiration of the one-year period, we hold that it is unnecessary to file a second or subsequent motion. As Judge Lehan points out:
The law is replete with instances where effect is given to a premature document or pleading upon the happening of a subsequent event which gives meaning to the document or pleading... . [T]he premature filing of a notice of appeal from a final judgment before the final judgment is rendered ... becomes effective simply upon the rendering, i.e., the filing, of the final judgment without the necessity of another notice of appeal being filed. Williams v. State, 324 So.2d 74, 79 (Fla. 1975)... . [A] prematurely issued writ of garnishment procured by a *721 judgment creditor before the rehearing period on the judgment has expired ... becomes effective upon the expiration of the rehearing period without the necessity for the issuance of another writ. Sun Bank/Southwest N.A. v. Schad, 482 So.2d 554 (Fla. 2d DCA 1986).
Id.
What is essential is that the nonmoving party has reasonable notice and an opportunity to present evidence of good cause to defeat the dismissal. There is no question in either of these cases that adequate notice of the hearing was provided.
Accordingly, we quash the decision of the Second District in Fleming with directions that it reinstate the dismissal of the action by the trial court.
We also quash the decision of the First District in Gant, with directions that it reinstate the trial court's order of dismissal in that case.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW and KOGAN, JJ., concur.
NOTES
[1] Rule 1.420(e) provides in pertinent part:
All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties... .
[2] In so holding, the Second District receded from its prior holding in Johnson v. Mortgage Investors of Washington, 410 So.2d 541 (Fla. 2d DCA 1982). The Third and Fifth Districts reached similar conclusions in Inman, Inc. v. Miami Dade Water and Sewer Authority, 489 So.2d 218 (Fla. 3rd DCA 1986), and Carter v. Cerezo, 495 So.2d 202 (Fla. 5th DCA 1986).
[3] Although under different circumstances, a trial judge has inherent power to dismiss for lack of reasonable diligence, see Szabo v. Essex Chemical Corp., 461 So.2d 128, 129 (Fla. 3d DCA 1984), the district court correctly ruled that when a motion is filed under Rule 1.420(e), a trial court may not dismiss a cause under its inherent powers authority.
[4] The Gants filed an amended complaint a few hours after TMRMC's motion to dismiss had been filed.
[5] We note that the First District has previously held that a sua sponte order of the court to show cause why an action should not be dismissed for lack of prosecution does not constitute record activity sufficient to preclude dismissal. Nelson v. Stonewall Ins. Co., 440 So.2d 664 (Fla. 1st DCA 1983); accord Chemical Bank of New York v. Polakov, 448 So.2d 1148 (Fla. 4th DCA 1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585620/ | 508 So.2d 1332 (1987)
Melvin J. WEATHERS, Appellant,
v.
STATE of Florida, Appellee.
Nos. 85-2008, 85-2009.
District Court of Appeal of Florida, Second District.
June 26, 1987.
*1333 James Marion Moorman, Public Defender, Bartow, and Stephen Krosschell, Asst. Public Defender, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.
SANDERLIN, Judge.
In each of these consolidated appeals, appellant challenges his sentence. For the reasons stated below, we affirm appellant's sentence in appeal number 85-2009 and reverse his sentence in appeal number 85-2008.
In case number 83-5006 (appeal number 85-2009), on August 26, 1983, appellant pleaded guilty to aggravated assault and was placed on five years' probation. On June 1, 1984, appellant pleaded guilty to burglary in case number 84-2132 (appeal number 85-2008) and was placed on probation, with the special condition that he serve 364 days in county jail. On the same day, the trial court modified appellant's probation in case number 83-5006 to require appellant to serve 364 days in county jail, concurrently with case number 84-2132.
On June 20, 1985, appellant's probation in both cases was further modified, as a result of various violations, to require him to spend one year in Tampa Probation and Restitution Center.
On August 22, 1986, the trial court revoked appellant's probation in both cases and sentenced him to concurrent terms of five years' imprisonment on each charge, with credit for time served. At the sentencing hearing, appellant's counsel advised the trial court that the presumptive guidelines sentence was any nonstate prison sanction. No guidelines scoresheet appears in the record. The trial judge stated that he was exceeding the guidelines based on appellant's "prior record and his prior violations and this offense and all other offenses and violations." The trial judge then directed someone to prepare a written order of his reasons for departure. The trial court's "Order of Aggravating Circumstances" stated:
The Court has found the defendant to have a prior record of burglary related offenses and has violated the terms and conditions of his probation on at least two (2) occasions. Furthermore, the defendant has displayed a pattern of behavior which indicates that he is a threat to society and has shown a total disregard for the criminal justice system.
We first address appellant's contention that his sentence in case number 83-5006 must be reversed and remanded so that he may affirmatively elect to be sentenced under the guidelines. This point is without merit. Appellant's offense in case number 83-5006 occurred prior to October 1, 1983, the effective date of the sentencing guidelines. Appellant did not affirmatively select to be sentenced under the guidelines in case number 83-5006; therefore, his sentence in that case is not a guidelines sentence. Accordingly, we affirm this sentence. See Diaz v. State, 487 So.2d 1225 (Fla. 2d DCA 1986).
Appellant next contends that the trial court did not provide clear and convincing reasons for departure in case number 84-2132. Prior record is an invalid reason for departure. Hendrix v. State, 475 So.2d 1218 (Fla. 1985). Additionally, "threat to society" and "disregard for criminal justice system" are invalid reasons for departure under the facts of this case. See Williams v. State, 492 So.2d 1308 (Fla. 1986); Hendsbee v. State, 497 So.2d 718 (Fla. 2d DCA 1986); Reid v. State, 488 So.2d 913 (Fla. 2d DCA 1986); Martinez-Diaz v. State, 484 So.2d 633 (Fla. 2d DCA 1986). Cf. Santana v. State, 507 So.2d 680 (Fla. 2d DCA 1987) ("lack of respect for the law" valid reason for departure where defendant did not appear for disposition of delivery of cocaine violation and very next day committed offenses of delivery of a counterfeit controlled substance and carrying a concealed firearm); Booker v. State, 482 So.2d 414 (Fla. 2d DCA 1985) ("disregard for criminal justice system" valid reason for departure when based upon defendant's "escalating criminal involvement").
*1334 We do, however, conclude that the fact that appellant violated his probation on two occasions is a clear and convincing reason for departure. See Adams v. State, 490 So.2d 53 (Fla. 1986); Gordon v. State, 483 So.2d 22 (Fla. 2d DCA 1985).
The state has not proven beyond a reasonable doubt that the trial court would have departed solely on the basis of the permissible reason. See Albritton v. State, 476 So.2d 158 (Fla. 1985). Further, our review of the record does not convince us that the absence of the invalid reasons, especially the prior convictions, would have affected the trial court's departure. See Casteel v. State, 498 So.2d 1249 (Fla. 1986). Accordingly, we reverse appellant's sentence in case number 84-2132, and remand for resentencing. Upon remand, the trial court is directed to prepare a scoresheet to be used in determining appellant's presumptive sentence. See Gause v. State, 491 So.2d 320 (Fla. 2d DCA 1986).
Affirmed in part, reversed in part, and remanded for resentencing.
CAMPBELL, A.C.J., and HALL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546815/ | 377 B.R. 788 (2007)
Juan A. PICO VIDAL, Appellant,
v.
Fernando RUIZ ALVARADO and Carmen M. Velez Ramos, Appellees.
Civil No. 07-1655 (GAG), Bankruptcy No. 02-0743 (BKT).
United States District Court, D. Puerto Rico.
October 26, 2007.
*789 *790 Katiria M. Perez Lopez, Dennis J. Cruz-Perez, Ponce, Puerto Rico, for plaintiff.
Noemi Landrau-Rivera, Nancy Pujals, Monsita Lecaroz-Arribas, San Juan, Puerto Rico, for defendant.
OPINION AND ORDER
GUSTAVO A. GELPI, District Judge.
This appeal arises from a decision and order of the United States Bankruptcy Court for the District of Puerto Rico ("Bankruptcy Court") granting partial summary judgment in favor of Fernando Ruiz Alvarado and Carmen M. Velez Ramos (collectively "the Debtors") and against Juan A. Pico. After carefully reviewing the parties' briefs and the record, the court REVERSES the judgment of the Bankruptcy Court.
I. Relevant Background
According to the Bankruptcy Court docket, the facts and travel of the case are as follows. On January 25, 2002, the Debtors filed a Chapter 13 voluntary petition in the Bankruptcy Court. On July 7, 2003, they filed the present adversary proceeding. In the complaint, the Debtors contend that in the early 1970's they signed a lease for a property on the Ponce By-Pass with Arturo Pico, Jr. ("Mr. Pico"). At that time, the property was barren. After leasing the property, the Debtors assert that they built three structures, which they subleased with Mr. Pico's permission.
At the time of the filing of the present bankruptcy case, the Debtors aver that their main source of income was the rent payments from the subleases. They assert that on March 11, 2003, they were informed that Mr. Pico's property was adjudicated to his widow, Teresa C. Vidal ("Mrs. Vidal"), and that it was her intention to have the Debtors vacate the leased premises immediately. In addition, the Debtors assert that Mrs. Vidal informed the Debtors' tenants that the Debtors were not the owners of the property and that from then on, they had to pay the rent directly to Mrs. Vidal. The Debtors maintain that due to this situation they are in arrears in their Chapter 13 plan and that this constitutes a violation of the automatic stay, since Mrs. Vidal did not file any action ion the local court to officially request that the Debtors vacate the property. Furthermore, they aver that Mrs. Vidal did not give them a reasonable time to vacate the premises, which they have been occupying for more than 30 years. The Debtors argue that, under Puerto Rico law, they are entitled to receive credit for the structures built by them, which cannot be removed without permanent damage to *791 the property. In light of the above, the Debtors requested that the Bankruptcy Court: (1) hold a hearing to determine whether Mrs. Vidal's actions constitute a violation of the automatic stay; (2) issue an order determining that Mrs. Vidal's actions constitute a violation of the automatic stay; (3) enter judgment against Mrs. Vidal in such amounts as the evidence shows; (4) award Debtors costs, fees, disbursements and such other relief as may be deemed just and proper; and (5) enter a protective order of injunction against Mrs. Vidal prohibiting her from continuing to deter Debtors from collecting the rents due from the structures on the property and evicting the Debtors from the leased premises without the corresponding order form the local court.
The Bankruptcy Court held a hearing on July 18, 2003, regarding the protective order requested by the Debtors. On July 24, 2003, the Bankruptcy Court entered a protective order requiring Mrs. Vidal to cease and desist from all acts to collect rent from Debtors' tenants and prohibiting Mrs. Vidal from commencing a judicial eviction action against Debtors or their tenants. Also, the tenants were specifically ordered to continue paying monthly rent to Debtors, commencing in the month of July 2003 until the Bankruptcy Court ordered otherwise. Furthermore, the Bankruptcy Court ordered that any rent paid to Mrs. Vidal for the month of July 2003 was to be paid to the Debtors and the rent collected by Mrs. Vidal, for the months of March 2003 until June 2003, was to be deposited with the Clerk of the Bankruptcy Court.
On July 31, 2003, Juan A. Pico ("Appellant"), Mrs. Vidal's son, filed an informative motion, stating that Mrs. Vidal had died and that he is the owner of the property subject to the adversary proceeding. On September 11, 2003, Appellant filed another motion, informing that he had complied with the protective order and that he consigned with the Clerk of the Bankruptcy Court the rent payments received for the months of March 2003 to June 2003. He also stated that he had not commenced a judicial or extra-judicial eviction against the Debtors or their tenants.
On December 29, 2003, after Mrs. Vidal's death, the Debtors filed an amended complaint to substitute Mrs. Vidal with her sons and heirs, Appellant and Arturo Pico ("Arturo"), and to include as co-defendants Debtors' tenants. In the amended complaint, the Debtors aver that they personally notified Appellant and Arturo of the Bankruptcy petition. They assert that on March 11, 2003, they received notification from Defendants in the name of their mother Mrs. Vidal, claiming ownership and title over the property of the estate and requesting that Debtors immediately vacate the property, without compensation for the structures and businesses established on the property. The Debtors maintain that despite the fact that Defendants knew of Debtors' bankruptcy and of the fact that the lease contract and sublease contracts were assumed by the Defendants, since March 31, 2003, four of Debtor's tenants ceased to pay rent to the Debtors due to Appellant and Arturo's interference with the tenants. The Debtors claim that Appellant and Arturo are liable in the amount of $100,000.00 in compensation for the structures built by the Debtors and $200,000.00 due to interference with Debtors' contractual relationship with their tenants. The Debtors also claim $100,000.00 in emotional damages for depression, severe stress and loss of sleep resulting from the extrajudicial eviction. Debtor Fernando Ruiz Alvarado specifically alleges that he had to undergo heart surgery due to stress related to Defendants' action. Finally, the Debtors seek $100,000.00 in punitive damages for the *792 wilful violation of the automatic stay. With respect to the tenants, the Debtors claim that the tenants failed to pay rent owed after they became aware that the Debtors were not the owners of the property. As for these claims, the Bankruptcy Court entered a default against all four tenants and judgment by default in Debtors' favor.
On December 9, 2005, the Bankruptcy Court ordered the parties to conclude discovery by January 31, 2006 and ordered dispositive motions to be filed no later than February 28, 2006. On February 9, 2006, Arturo filed a motion for summary judgment. On April 27, 2006, the Debtors filed a motion for partial summary judgment against Juan, contending that Appellant violated the automatic stay with full knowledge and intention of doing so, that he wrongfully interfered with the contractual relationship between Debtors and their tenants, and that he is liable for compensation for the structures built in good faith by the Debtors. On May 5, 2006, the Debtors supplemented their request for partial summary judgment. On the same day, Appellant filed an opposition to the Debtors' motion for partial summary judgment, stating that Debtors filed it well beyond the deadline of February 28, 2006, given by the Bankruptcy Court to file dispositive motions, and requesting in the alternative an extension of time to file a response. On May 10, 2006, the Debtors' filed a reply to said opposition. On the same day, the Debtors requested that the Bankruptcy Court hold in abeyance the pretrial hearing set for May 12, 2006, pending the outcome of the summary judgment requests. On May 12, 2006, the Bankruptcy Court granted the Debtors' request that the pretrial hearing be held in abeyance and continued the hearing for August 15, 2006. On August 15, 2006, the Bankruptcy Court cancelled the pretrial hearing pending the outcome of the various dispositive motions filed. On October 31, 2006, the Debtors submitted translated exhibits of their request for summary judgment. On December 18, 2006, the Bankruptcy Court entered an opinion and order granting Arturo's motion for summary judgment and the Debtors' motion for partial summary judgment. With respect to the latter, the Bankruptcy Court held that the Debtors had met their burden of showing that there are no genuine issues of material fact, that Appellant willfully violated the automatic stay and aided and abetted Mrs. Vidal in actions that constitute a willful violation of the automatic stay, that Appellant had notice of the stay, and that he intentionally interfered with the Debtors' lease, sublease and rent payments. Appellant now appeals this decision.
II. Jurisdiction
This court has jurisdiction to hear bankruptcy appeals from "final judgments, orders, and decrees" pursuant to 28 U.S.C. 158 § (a)(1) or "with leave of the court, from interlocutory orders and decrees" pursuant to 28 U.S.C. § 158(a)(3). It is well settled that an order granting partial summary judgment is not a final judgment, order, or decree, absent "some clear and unequivocal manifestation by the trial court of its belief that the decision made, so far as [the court] is concerned, is the end of the case." In re Olympic Mills Corp., 333 B.R. 540, 547 (1st Cir. BAP 2005) (quoting Goodwin v. United States, 67 F.3d 149, 151 (8th Cir.1995)). Federal Rule of Civil Procedure 54(b) permits the entry of final judgment as to fewer than all the parties or all the claims in a multi-party action "upon an express determination that there is no just reason for delay" in entering judgment. Fed.R.Civ.P. 54(b). The Bankruptcy Court made the requisite finding and directed entry of a final judgment *793 notwithstanding that there were certain issues which remained unadjudicated. As the Bankruptcy Court certified the partial summary judgment order as final pursuant to Rule 54(b), this court has jurisdiction to consider that portion of the appeal pursuant to 28 U.S.C. 158 § (a)(1).
III. Standard of Review
In reviewing the Bankruptcy Court's decision granting partial summary judgment for Debtors, the court applies de novo review. In re Olympic Mills Corp., 477 F.3d 1, 14 (1st Cir.2007) (citing In re Schifano, 378 F.3d 60, 66 (1st Cir.2004)). Federal Rule of Bankruptcy Procedure 7056 incorporates Federal Rule of Civil Procedure 56(c) as the appropriate standard for deciding a motion for summary judgment. Fed.R.Bankr.P. 7056. Under Rule 56(c), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004).
The moving party has the burden of establishing the nonexistence of a genuine issue of material fact. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. This burden has two components: (1) an initial burden of production that shifts to the nonmoving party if satisfied by the moving party; and (2) an ultimate burden of persuasion that always remains on the moving party. Id. at 331, 106 S.Ct. 2548. The moving party may discharge its burden by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id. After the moving party makes this initial showing, the "burden shifts to the nonmoving party with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor." DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548). To meet this burden, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). The court must view the record and all reasonable inferences in the light most favorable to the nonmoving party. Id. If the court finds that some genuine factual issues remain, the court must deny the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
IV. Discussion
On appeal, Appellant argues that: (1) the Bankruptcy Court's decision and order violates his substantive due process; (2) the automatic stay does not apply to this case because the Debtors were occupying a nonresidential property under an expired lease; and (3) there are genuine issues of material fact that prevent a rational fact finder from finding in Debtors' favor under the standard of clear and convincing evidence. The court will examine these arguments to determine whether the Bankruptcy Court erred when it granted the Debtors' motion for partial summary judgment.
A. Substantive Due Process
Appellant argues that the Bankruptcy Court's decision violated his substantive due process because the Debtors *794 did not have an interest, at the time that they filed for bankruptcy, in the lease agreement that is part of the bankruptcy estate. Section 541 of the Bankruptcy Code enumerates the types of property interests that are included in the bankruptcy estate. The estate is defined broadly to include "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). "[U]nexpired lease-hold interests, including subleases, constitute property of the bankruptcy estate." In re Stoltz, 197 F.3d 625, 629 (2d Cir. 1999) (quoting In re 48th St. Steakhouse, Inc., 835 F.2d 427, 430 (2d Cir.1987)). See also H.R.Rep. No. 595, 95th Cong., 2d Sess. 367, reprinted in 1978 U.S.Code Cong. & Admin.News. 5963, 6323; S.Rep. No. 989, 95th Cong., 2d Sess. 82, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5868 ("Debtor's interest in property also includes `title' to property, which is an interest, just as are a possessory, or leasehold interest."). The term "unexpired" is not defined in the Bankruptcy Code itself or in its legislative history. Instead, because property interests are created and defined by state law, federal courts have looked to state law to determine a debtor's interest, including leasehold interests, in the bankruptcy estate. See, e.g., Nobelman v. American Say. Bank, 508 U.S. 324, 328, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (looking to Texas law); In re Williams, 144 F.3d 544, 546 (7th Cir.1998) (looking to Illinois law); In re Waterkist Corp., 775 F.2d 1089, 1091 (9th Cir.1985) (looking to Alaska law). Accordingly, the court looks to Puerto Rico law to determine the Debtors' interest, if any, in the lease agreement at the time that the Debtors filed their Chapter 13 bankruptcy petition.
Under Puerto Rico law, three elements characterize a lease contract: (1) the thing; (2) temporal duration; and (8) a price. Matter of Daben Corp., 469 F.Supp. 135, 148 (D.P.R.1979). Here, all three elements were present when the Debtors filed their Chapter 13 bankruptcy petition on January 25, 2002. At that time, the Debtors had a month-to-month lease. They were occupying the lot and making payments, which Appellant received. Two additional letters support the conclusion that the Debtors had a valid lease when they filed for bankruptcy. On June 8, 2002, Mr. Pico wrote a letter saying that "since the year 1973 I have been renting a parcel of land of 520 square meters to Mr. Fernando Ruiz The rent which Mr. Ruiz pays me is $750.00 per month." See Appendix, Docket No. 11 at p. 267. On March 11, 2003, the Debtors received a letter from Mrs. Vidal terminating their lease and instructing them to leave the property. Id. at 245. These two letters were written after the Debtors filed their Chapter 13 bankruptcy petition. In light of the above, the court finds that the Bankruptcy Court did not err as a matter of law when it found that the Debtors had an interest in the lease agreement at the time they filed for bankruptcy.
Alternatively, Appellant argues that the Bankruptcy Court's decision violated his substantive due process because the Bankruptcy Court considered the Debtors' untimely motion for partial summary judgment. Appellate review of a court's management decisions is solely for abuse of discretion. Velez v. Awning Windows, Inc., 375 F.3d 35, 41 (1st Cir.2004) (citing Rosario Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.1998); C.B. Trucking, Inc. v. Waste Mgmt., 137 F.3d 41, 44 (1st Cir.1998)). Thus, a party adversely affected by a court's case management decision "bears a formidable burden" in seeking reversal. United States v. One 1987 BMW 325, 985 F.2d 655, 657 (1st Cir.1993).
*795 Here, the Debtors filed their motion for partial summary judgment 58 days after the deadline for filing dispositive motions. Because this motion presented relatively straightforward issues, the court holds that the Bankruptcy Court did not abuse its discretion when it considered the motion. See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 58 (1st Cir.2000) (holding that district court did not abuse its discretion in entertaining employee's motion for summary judgment, filed 61 days after court-imposed deadline, because, inter alia, the motion presented a relatively straightforward issue).
Appellant also contends that the Bankruptcy Court violated his substantive due process when it ruled on the Debtors' motion for partial summary judgment without deciding on Appellant's motion for an extension of time to reply to the Debtors' motion for partial summary judgment. The record shows that the Debtors filed their motion for partial summary judgment on April 27, 2006. On May 5, 2006, Appellant filed an opposition to said motion stating that Debtors filed it well beyond the deadline of February 28, 2006, given by the Bankruptcy Court to file dispositive motions, and requesting in the alternative an extension of 20 days to file a response. On May 12, 2006, the Bankruptcy Court entered an order continuing the pretrial hearing to August 15, 2006, subject to the resolution of the summary judgment requests. On August 15, 2006, the Bankruptcy Court cancelled the pretrial hearing pending the outcome of the various dispositive motions filed. On December 18, 2006, the Bankruptcy Court issued an opinion and order granting the Debtors' motion for summary judgment as unopposed. Because more than seven months had elapsed from the time that Appellant requested an extension of 20 days and because Appellant had been notified twice about the pending motions for summary judgment, the court finds that the Bankruptcy Court did not abuse its discretion when it deemed the Debtors' motion for partial summary judgment as unopposed. C.f. Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 13 (1st Cir.2007) (concluding that the trial court, faced with a summary judgment motion that had been pending for nearly ten months without a substantive response, acted within its discretion in deeming that motion unopposed).
B. Automatic Stay
Appellant argues that the automatic stay does not apply to this case because the Debtors were occupying a nonresidential property under an expired lease. "The automatic stay is one of the fundamental protections that the Bankruptcy Code affords to debtors." In re Jamo, 283 F.3d 392, 398 (1st Cir.2002). Under 11 U.S.C. § 362(a)(3), the filing of a bankruptcy petition operates as an automatic stay of "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." When a creditor willfully acts after the filing of a petition under 11 U.S.C. § 301 to obtain possession of the estate property, the debtor may recover actual damages, including costs and attorney's fees, and in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 326(k)(1).
The property at issue in this case is a nonresidential property. The Debtors leased this property from Appellant's family for over 30 years. Under 11 U.S.C. § 362(b)(10), the automatic stay does not apply to "any act by a lessor to the debtor under a lease of nonresidential real property that has terminated by the expiration of the stated term of the lease before the commencement of or during a *796 case under this title to obtain possession of such property." Here, the Debtors received a letter from Mrs. Vidal on March 11, 2003 cancelling the lease agreement and asking them to leave the property. See Appendix, Docket No. 11, at p. 249. Nine days later, on March 20, 2003, Mrs. Vidal sent a letter to Debtors' tenants informing them that Debtor Ruiz "was notified that as of March 31, 2003 the rental of the properties he leased month to month will end. Beginning on April 1st, 2003, I will take control of these properties . . ." Id. at 271-72. After March 31, 2003, the Debtors stopped receiving rents from their tenants. Neither Mrs. Vidal nor Appellant moved the Bankruptcy Court to lift the stay before seeking to evict the Debtors. "[C]ourts have recognized that a tenant's possessory interest in property is included in the bankruptcy estate when the bankruptcy petition is filed and thus the landlord must seek relief from the automatic stay prior to terminating the lease or instituting eviction proceedings." McAdam v. Lorden, 2005 WL 2340739 *4 (D.N.H.2005) (citing In re Atlantic Bus. and Cmty. Corp., 901 F.2d 325, 328 (3d Cir.1990); In re 48th St. Steakhouse, Inc., 835 F.2d 427, 430 (2d Cir.1987)). Moreover, "[r]elief from the automatic stay of an act against property is possible under 11 U.S.C. § 362(d)(2) if the debtor has no equity in the property and the property is not necessary for an effective reorganization." B.N. Realty Assocs. v. Lichtenstein, 238 B.R. 249, 258 (S.D.N.Y.1999). Here, the Debtors have an equitable interest in the lease agreement for the lot of land, in the structures built and in the rents payments they received for renting the structures built. In light of the above, the court holds that the Bankruptcy Court did not err as a matter of law when it considered that Appellant was subject to the automatic stay provision.
C. Genuine Issues of Material Fact
The Bankruptcy Court held that Appellant willfully violated the automatic stay, aided and abetted Mrs. Vidal in actions that constitute a willful violation of the automatic stay, and intentionally interfered with the Debtors' lease, sublease, and rent payments. Appellant argues that this was error because there are genuine issues of material fact that prevent a rational fact finder from finding in Debtors' favor under the standard of clear and convincing evidence. Even though the court has held that the Bankruptcy Court did not abuse its discretion when it deemed the Debtors' motion for partial summary judgment as unopposed (Section IV.A.), this does not mean that summary judgment should automatically follow. Velez, 375 F.3d at 42. "Even when faced with an unopposed motion for summary judgment, a court still has the obligation to test the undisputed facts in the crucible of the applicable law in order to ascertain whether judgment is warranted". Id. (citing Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.1990); Fed.R.Civ.P. 56(e)). In this regard, appellate review of an order granting summary judgment is confined to the record before the court at the time it made the challenged ruling. Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 204 (1st Cir.2006) (citing Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir.1985) (per curiam)). Thus, the court will not consider the evidence that Appellant is introducing for the first time on appeal.
A willful violation of the automatic stay occurs when there is knowledge of the stay and the defendant intended the actions which constituted the violation. Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999) (citing In re Bloom, 875 F.2d 224, 227 (9th Cir.1989); In re Crysen/Montenay Energy Co., 902 F.2d 1098, 1105 (2d Cir.1990); In re Atlantic *797 Business and Cmty. Corp., 901 F.2d 325, 329 (3d Cir.1990)). The debtor has the burden of providing the creditor with actual notice. Id. Once the creditor received actual notice, the burden shifts to the creditor to prevent violations of the automatic stay. Id. (citing In re Smith, 180 B.R. 311, 319 (Bankr.N.D.Ga.1995)).
An examination of the record relied by the Bankruptcy Court reveals the following. On June 6, 2002, Arturo sent a letter to Attorney Soto Ledesma notifying him that Debtor Ruiz "was on bankruptcy court." See Appendix, Docket 11 at p. 270. In his deposition, Appellant admitted that Attorney Soto Ledesma is his counsel. Id. at 207. This information supports the conclusion that Appellant had knowledge of the Debtors' bankruptcy around June 6, 2002. However, the record also contains a sworn statement by Appellant, signed on July 24, 2003. In this statement, Appellant avers that he has "never been notified of any automatic stay or any bankruptcy proceedings of Mr. Fernando Ruiz." Id. at 209. Thus, the Debtors' own evidence suggests that there is a genuine issue of material fact as to whether Appellant knew of the bankruptcy and automatic stay at the time he allegedly collected the rents from Debtors' tenants and at the time he advised his mother about the property. Because it is disputed when Appellant acquired such knowledge, the Bankruptcy Court erred as a matter of law when it held that Appellant willfully violated the automatic stay and that he aided and abetted Mrs. Vidal in actions that constitute a willful violation of the automatic stay.
The second element required for a finding of a willful violation of the automatic stay is that defendant intended the actions which constituted the violation. Fleet, 196 F.3d at 269. With respect to this element, the record reveals the following. Appellant spoke to Debtors' tenants and found out that they were paying Debtors more money that Debtors were paying Mrs. Vidal. See Appendix, Docket 11 at p. 220. Appellant understood that Mrs. Vidal could be paid more than what Debtors' were paying her and told her about this disparity. Id. Some time later, Mrs. Vidal sent a letter to Debtors cancelling their lease. Id. at 245. She also sent a letter to the Debtors' tenants instructing them to cease making rent payments to Debtors and to make payments directly to her. Id. at 271-72. Appellant received one check from Jose Luis Mercado, one of Debtors' tenants. Id. at 34. This check was written to Mrs. Vidal. Id. Because Appellant did not commit an overt act which resulted in the Debtors' eviction or interference with their subleases, the court finds that the Bankruptcy Court erred as a matter of law when it held that Appellant intentionally interfered with the Debtors' lease, sublease and rent payments. Accordingly, the court vacates the Bankruptcy Court's opinion and order granting the Debtors' motion for partial summary judgment and orders that the same be denied.
V. Conclusion
For the foregoing reasons, the judgment of the Bankruptcy Court is hereby REVERSED. The case is REMANDED for proceedings consistent with this opinion and order.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2319124/ | 23 A.3d 414 (2011)
207 N.J. 188
GRINBAUM
v.
ROBBINS.
C-1096 September Term 2010, 068156
Supreme Court of New Jersey.
July 14, 2011.
Petition for Certification Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342971/ | 264 P.3d 173 (2011)
245 Or. App. 644
Betty PEWTHER, fka Betty E. Jaqua, Plaintiff-Appellant,
v.
C CORP, an inactive Oregon corporation; and Charles L. Koon, individually, Defendants, and
Paul A. Whitaker, individually, Defendant-Respondent.
10CV0200AB; A146534.
Court of Appeals of Oregon.
Argued and Submitted June 13, 2011.
Decided September 28, 2011.
*174 Melinda Thomas, Bend, argued the cause for appellant. With her on the brief were John A. Berge and Bryant, Lovlien & Jarvis, P.C.
Edward Fitch, Redmond, argued the cause for respondent. With him on the brief was Bryant, Emerson & Fitch, LLP.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.
SCHUMAN, P.J.
In this breach of contract action, the trial court granted defendant Whitaker's motion for summary judgment based on its determination that Whitaker was not liable to plaintiff under the unambiguous terms of the parties' agreement.[1] Plaintiff contends that the trial court erred in granting Whitaker's motion and subsequently dismissing him from the case. On appeal, we view the record in the light most favorable to plaintiff, the nonmoving party, to determine whether the trial court correctly ruled that there are no genuine issues of material fact and that Whitaker is entitled to judgment as a matter of law. ORCP 47 C. We conclude that the court did not err, and we therefore affirm.
The underlying facts are largely undisputed. In 1998, plaintiff sold some undeveloped industrial land in Redmond, Oregon, to defendants C CORP and Whitaker for consideration of $650,000. The property was conveyed by statutory warranty deed to C CORP and to Whitaker, each having "an undivided one-half interest, as tenants in common." C CORP provided the funds for the purchase of the property. At that time, Whitaker was an employee of C CORP, and his name was placed on the title in anticipation that he would be entitled to his interest in the property as a bonus for his work.
Simultaneously, the parties executed a written document agreeing to certain conditions that were to "survive closing." That agreement, entitled "Agreement Surviving Closing," identified the "Seller" as plaintiff, and the "Buyer" as C CORP and Whitaker, each, again, having "an undivided one-half interest as tenants in common." The provision of the agreement that is central to this dispute provided:
"In the event Buyer subsequently sells all or a portion of the Property prior to May 15, 2008, Buyer shall pay to Seller as additional consideration for the sale of the property, a sum equal to five percent (5%) of Seller's [sic] net profit on the property as reflected in Buyer's federal income tax returns for the year of sale, including any deferred profits as the result of an installment sale."[2]
In 2001, Whitaker left his employment with C CORP and conveyed his interest in the property to C CORP for nominal consideration *175 of $1. As a result, C CORP thereafter held a one hundred percent interest in the property. In March 2004, C CORP sold the property to a third party and reported a profit of $603,547 on its federal tax return. C CORP subsequently lost all of its assets and value in the economic downturn.
Plaintiff learned about the sale of the property by C CORP in December 2009. In March 2010, she sued both C CORP and Whitaker for her five percent share of the sale profits. Whitaker moved for summary judgment on the ground that he had no obligation to plaintiff because, when the property was sold to the third party, he no longer held any interest in it. He contended, further, that any obligation he might have had to plaintiff would have arisen when he transferred his interest in the property to C CORP in 2001 for $1, and that plaintiff's claim against him was therefore barred by the six-year statute of limitations for actions on contracts. ORS 12.080.[3]
Plaintiff responded that Whitaker's conveyance of the property in 2001 did not trigger an obligation under the terms of the quoted provision of the "Agreement Surviving Closing," because that provision comes into play only on the sale of the property to a third party. Further, plaintiff asserted, because Whitaker's and C CORP's obligation under the agreement was joint, Whitaker's obligation to plaintiff continued after he no longer held an interest in the property, and the duty to pay plaintiff was triggered by C CORP's conveyance of the property in 2004. Therefore, plaintiff contended, her claim against him for breach of contract was timely.
The trial court agreed with Whitaker, granted Whitaker's motion for summary judgment, and entered a limited judgment dismissing him from the case. On appeal, plaintiff reiterates the arguments made at trial. She argues that the trial court erred in granting Whitaker's motion for summary judgment because the "Agreement Surviving Closing" unambiguously created joint and several liability on the part of Whitaker and C CORP that survived Whitaker's conveyance of the property in 2001, first, by virtue of its text and, second, as a matter of law. In the alternative, plaintiff argues that the agreement is ambiguous, giving rise to a factual dispute, and that summary judgment therefore was not appropriate.
We begin with plaintiff's contention that Whitaker's obligation to plaintiff under the "Agreement Surviving Closing" derived from Whitaker's joint liability under that agreement. Plaintiff asserts that the parties' deliberate choice of the term "Buyer," in the singular throughout the agreement, reflects their intention that Whitaker and C CORP were to have a joint obligation to plaintiff if and when the property sold during the 10 years prior to May 15, 2008. In support, plaintiff cites the Supreme Court's opinion in Silvertooth v. Kelley, 162 Or. 381, 91 P.2d 1112 (1939), for the proposition that, in determining whether obligations under a contract are joint or several, the intentions of the parties controls, but that an obligation undertaken by more than one person is generally presumed to be joint, and several responsibility will not arise except by words of severance.
Like the trial court, we are not persuaded. Plaintiff's reliance on Silvertooth is unwarranted. It is true that, in that case, the Supreme Court quoted a well-known treatise, Williston on Contracts, for the proposition that "when two or more persons undertake an obligation that they undertake jointly, words of severance are necessary to overcome this primary presumption." Silvertooth, 162 Or. at 389, 91 P.2d 1112 (quoting Williston on Contracts § 322 (1st ed. 1920)). It is also true that, in Silvertooth, the court held thatbased on "the facts in the instant case"multiple defendants who had retained the services of the plaintiff were jointly liable to him. Id. at 390, 91 P.2d 1112. However, the quote from Williston begins with the explanation that the presumption in favor of joint liability derives by "analogy of the rule of real property that an estate granted to two persons created a joint tenancy rather *176 than a tenancy in common." Silvertooth, 162 Or. at 389, 91 P.2d 1112 (quoting Williston on Contracts § 322). Here, that analogy does not apply: the agreement between plaintiff and defendants expressly states that they are tenants in common.
Further, and more significantly, Silvertooth has nothing to say about a situation such as the one in the present case where one of the supposedly jointly liable obligors has sold his entire interest in the source of the obligation to the other obligor. Even assuming the plausibility of plaintiffs assertion that the parties deliberately chose the term "buyer," in the singular, so as to encompass both Whitaker and C CORP and to reflect their joint obligation at the time the agreement was executed, and even presuming that Silvertooth applies and there was a joint obligation at the time the parties executed the agreement, see Silvertooth, 162 Or. at 389-90, 91 P.2d 1112, any obligation on Whitaker's part ended when Whitaker no longer owned an interest in the property. The agreement placed no restriction on the individual owners' ability to convey the property to each other. Plaintiff does not dispute that, under the deed and the agreement, Whitaker and C CORP were free to separately alienate their interests, including selling the property to each other. Plaintiff further concedes that the sale by Whitaker of his interest to C CORP did not trigger Whitaker's obligation under the agreement, because it was not a sale to a third party.[4] By the time of C CORP's third-party sale, which is the only sale that plaintiff asserts triggered the obligation to share profits, Whitaker no longer had an ownership interest in the property. He no longer held "an undivided one-half interest" in the property and was no longer a "buyer" within the meaning of the agreement. He did not sell the property, did not share in the net profits from the sale, and reported no profit on his federal tax return, all of the events necessary to trigger an obligation under the agreement. Whitaker had nothing to do with the transaction. Plaintiff does not suggest, and we cannot imagine, any reason why the parties would contemplate that Whitaker would be obligated to pay plaintiff a percentage of a profit on the sale of property even after Whitaker had no right to share in that profit. No such obligation is plausibly reflected in the text of the agreement. We accordingly conclude that the trial court did not err in granting Whitaker's motion for summary judgment and dismissing him from the case. Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019 (1997) (if contractual provision has only one plausible meaning, no further analysis is necessary).
Affirmed.
NOTES
[1] There are three defendants in this case. The only assignment of error on appeal addresses the trial court's grant of a limited judgment against Whitaker.
[2] The parties agreed at trial that the phrase "Seller's net profit" was a scrivener's error and that the phrase should be "Buyer's net profit."
[3] ORS 12.080(1) provides:
"An action upon a contract or liability, express or implied * * * shall be commenced within six years."
[4] Whitaker, on the other hand, does not so concede, and asserts that the 2001 conveyance to C CORP triggered Whitaker's obligation and that the statute of limitations has run on any claim based on that conveyance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014602/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2250
MONTE MEDLEY,
Plaintiff - Appellant,
versus
FEDERAL EXPRESS CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-02-2388-8-AW)
Submitted: July 30, 2004 Decided: October 19, 2004
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jay L. Cohen, Chevy Chase, Maryland, for Appellant. Edward J.
Efkeman, FEDERAL EXPRESS CORPORATION, Memphis, Tennessee, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Monte Medley appeals from the order of the district court
awarding summary judgment to Federal Express Corporation (“Fedex”)
and dismissing his complaint of unlawful employment discrimination
in violation of Md. Ann. Code, art. 49B, § 42 (2003). Because the
district court erroneously denied as “moot” Medley’s motion for an
extension of the discovery period and otherwise failed to address
his motion for discovery in opposition to summary judgment, we
vacate the judgment and remand for further proceedings.
As part of the discovery process, Medley sought certain
records of similarly situated Fedex employees, and Fedex objected.
Fedex also declined to turn over the documents at a deposition
conducted on March 25, 2003. On March 26, 2003, the final day of
the discovery period, Medley filed a motion to further extend the
discovery period to facilitate the filing of a motion to compel
discovery. On April 24, 2003, Fedex filed a motion for summary
judgment. On May 15, 2003, with the summary judgment motion still
pending, the district court entered a “paperless order” denying
Medley’s motion for additional discovery as “moot.” Medley then
responded to the summary judgment motion and again moved for
additional discovery under Fed. R. Civ. P. 56(f). On July 15,
2003, the district court filed a memorandum opinion and order
awarding summary judgment to Fedex, implicitly denying Medley’s
motion under Rule 56(f), and dismissing his complaint.
- 2 -
Medley’s motion for extended discovery was not moot at
the time it was denied by the district court. Moreover, the
district court did not address Medley’s motion under Rule 56(f) in
its opinion and order dismissing Medley’s complaint. Accordingly,
we vacate the judgment of the district court, and we remand for the
court to consider Medley’s motion for an extension of discovery and
Rule 56(f) motion. 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.
VACATED AND REMANDED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014636/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6704
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILIP MURPH, a/k/a Phillip Murph, a/k/a
Philip Murphy, a/k/a Phil,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt, Senior
District Judge. (CR-94-36-BR)
Submitted: August 30, 2004 Decided: October 27, 2004
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Philip Murph, Appellant Pro Se. Robert Edward Skiver, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Philip Murph seeks to appeal the district court’s order
denying relief on his motion to reconsider under Fed. R. Civ. P.
60(b), filed in his underlying 28 U.S.C. § 2255 (2000) action. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000);
Reid v. Angelone, 369 F.3d 363, 368-69 (4th Cir. 2004) (holding
that appeal from the denial of a Fed. R. Civ. P. 60(b) motion in a
habeas action requires a certificate of appealablity). 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 are also 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 Murph has not made the requisite showing.
To the extent Murph’s notice of appeal and informal brief
could be construed as a motion for authorization to file a
successive § 2255 motion, we deny such authorization. United
States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied,
124 S. Ct. 496 (2003). Accordingly, we deny a certificate of
- 2 -
appealability and dismiss the appeal. 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.
DISMISSED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585596/ | 116 Mich. App. 135 (1982)
321 N.W.2d 868
PEOPLE
v.
McDONALD
Docket No. 53035.
Michigan Court of Appeals.
Decided May 5, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
Before: T.M. BURNS, P.J., and M.F. CAVANAGH and R.A. BENSON,[*] JJ.
*136 PER CURIAM.
Defendant was charged with armed robbery, MCL 750.529; MSA 28.797. He was originally assigned status as a youthful trainee under the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq., and placed on three years probation. That probation was revoked and his youthful trainee status terminated due to his plea of guilty to an unrelated charge. Defendant was then tried on two counts of armed robbery and convicted by a jury of two counts of unarmed robbery. Defendant was sentenced to 2-1/2 to 15 years in prison. Defendant appeals his conviction as of right.
We find one issue raised by defendant to be dispositive of this case. Defendant contends that the trial court reversibly erred by refusing to instruct the jury upon the defendant's request for an instruction on the lesser included offense of larceny from the person, MCL 750.357; MSA 28.589.
Defense counsel originally informed the court that he wanted instructions only on the charge of armed robbery guilty or not guilty. The prosecution requested that the court instruct the jury on the charge of armed robbery, attempted armed robbery, and unarmed robbery. The following colloquy took place between the trial court and the defense counsel:
"The Court: Under the circumstances, I think there have been enough facts elicted [sic] to give me authority to go with armed robbery, attempt armed robbery, unarmed robbery. Those are the only included offenses I will give, and I assume you are objecting to that.
"Mr. Gragg [defense counsel]: Yes, I am, your Honor.
"The Court: You're objecting to the inclusion of any lesser included offenses?
"Mr. Gragg: Yes, your Honor.
*137 "The Court: Let the record so reflect.
"Mr. Gragg: May I just inquire if the court is going with the other two lesser offenses, why the court doesn't use larceny from a person?
"The Court: I would have, if it had been requested by the prosecutor, or may have. But he doesn't want them. If he didn't want them and you didn't, I'm not going to give them. That is the reason."
It is reversible error for a trial judge to refuse to instruct the jury on a requested lesser included offense.
"The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id., 36. People v Hamilton, 76 Mich 212; 42 NW 1131 (1889)." People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).
The Michigan Supreme Court has determined that larceny from the person is a necessarily lesser included offense of armed robbery.
"We are committed to the view that the crime of larceny from the person embraces the taking of property in the possession and immediate presence of the victim. If such taking be by force and threat of violence, it is robbery, and hence every robbery would necessarily include larceny from the person and every armed robbery would necessarily include both unarmed robbery and larceny from the person as lesser included offenses." (Citation omitted.) People v Chamblis, 395 Mich 408, 425; 236 NW2d 473 (1975).
The prosecution argues that the defense counsel's request for the court's reasons for not instructing on larceny from the person is not sufficient *138 to comprise a request for an instruction as to that crime. This is a close question but we disagree with the prosecution. We find our decision here to be in accord with Judge HOLBROOK'S partial dissent in People v Johnson, 90 Mich App 415, 422; 282 NW2d 380 (1979), where Judge HOLBROOK felt that, after considering the entire conversation that transpired between the prosecutor, the defense counsel and the bench, "* * * the trial court was put on notice that he should give the [requested] attempt instruction, People v Lovett, 396 Mich 101, 102; 238 NW2d 44 (1976)".
Here, the defense counsel's question concerning the court's intent to deliver an instruction on larceny from the person could have expressed the defendant's wish for the inclusion of that charge in the instructions in a much clearer fashion. However, the defendant's question combined with the court's decision to instruct the jury on the two other lesser included offenses along with the fact that larceny from the person is a necessarily included lesser offense of armed robbery constituted sufficient reason to put the trial court on notice that the larceny from the person instruction should have been given. At a minimum, the court should have inquired from the defense counsel if this question concerning the larceny from the person instruction was, in fact, a request for that instruction. If the trial court acted in the belief that once the defendant had made a decision not to request any lesser included offenses he was precluded from later requesting lesser included offenses, that was an erroneous belief. It makes no difference that the defendant did not originally request any lesser included offenses. Once the trial court honored the prosecution's request to instruct the jury on the lesser included offenses of attempted *139 armed robbery and unarmed robbery, before the instructions had been given to the jury, the defendant was entitled to request lesser included offense instructions.
We find defendant's other allegations of error to be without merit.
We vacate the defendant's conviction of two counts of unarmed robbery and remand this case to the trial court for entry of judgment of two counts of larceny from the person and for resentencing on that conviction or, if the prosecution believes that justice would be better served thereby, the prosecution may seek a new trial in the case.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585599/ | 116 Mich. App. 159 (1982)
321 N.W.2d 878
IN THE MATTER OF MUDGE
Docket No. 57307.
Michigan Court of Appeals.
Decided May 5, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Janis Meija and Bernard Rosner, Assistants Attorney General, for the Department of Social Services.
John R. Minock, Chief Deputy Defender, for Shawn M. Mudge and Thomas Mudge, Jr.
Gerald S. Surowiec, for Thomas Mudge, Sr.
Before: R.M. MAHER, P.J., and BEASLEY and P.J. MARUTIAK,[*] JJ.
PER CURIAM.
Respondent appeals by leave of this Court the decision of the Wayne County Circuit Court affirming an order by the Wayne County Probate Court terminating his parental rights and placing his children in the permanent custody of the court.
On October 10, 1975, the Department of Social Services (DSS) filed an abuse-neglect petition against respondent and his wife, Colleen. As a result, his two children Shawn and Thomas, Jr., were made temporary wards of the court. Several months later, the couple separated. Shortly after the separation, on May 8, 1976, respondent stormed into the house where his wife was staying and proceeded to stab her gentleman companion to death. He then left the house, but returned shortly thereafter to murder his wife.
A jury convicted respondent of second-degree murder, and he was sentenced to 2 to 15 years in prison. While respondent was imprisoned for this *161 offense, DSS filed a petition to terminate his parental rights. After several hearings, the probate court ordered the termination of respondent's parental rights. The circuit court affirmed, and respondent appeals.
The proper standard of review by this Court of cases involving the termination of parental rights is somewhat unclear. We need not decide whether the correct standard is de novo, see Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975), or a "clearly erroneous" standard, see MCL 600.866(1); MSA 27A.866(1), since we reach the same decision under either standard.
Respondent's principal contention on appeal is that the state did not sustain its burden of proving by clear and convincing evidence that his parental rights should be terminated. Respondent's rights were terminated pursuant to MCL 712A.19a; MSA 27.3178(598.19a), which provides in pertinent part:
"Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
* * *
"(d) A parent or guardian of the child is convicted of a felony of a nature as to prove the unfitness of the parent or guardian to have future custody of the child or if the parent or guardian is imprisoned for such a period that the child will be deprived of a normal home for a period of more than 2 years."
Although respondent eventually spent more than two years in prison, the probate court relied solely upon the first portion of subsection (d), finding that respondent had been convicted of a *162 felony of a nature as to prove his unfitness to have future custody of his children.
After consideration of the entire record, we cannot disagree with the probate court's finding that respondent had been convicted of such a felony. The probate court made, inter alia, the following factual findings:
"Following the removal of Shawn and Thomas, Jr., from the home, the Mudges, who had separated earlier, reconciled for a brief period and then separated again in May, 1976. On May 8, 1976, Thomas Mudge, Sr., the father, visited the home of his brother where his estranged wife was then living. Thomas Mudge, Sr., stabbed to death the male companion whom he found with his estranged wife. He then returned to the home and stabbed his wife to death. Shortly after this he visited the foster home where his children were residing and announced to the children that he had killed their mother and was proud of it. He threw one of the children into the swimming pool fully clothed."
Respondent submits that the types of felonies contemplated by subsection (d) are those that threaten or destroy the parent-child relationship, such as sexual abuse of a child by the parent, or criminal neglect through failure to provide medical attention for the child. Assuming arguendo the validity of this proposition, we find it difficult to imagine a felony more destructive of the parent-child relationship than the destruction of a parent. Through this single thoughtless and impulsive act, respondent has forever deprived his children of the love, companionship and guidance of their mother. The commission of such a crime typically demonstrates a callous disregard for the welfare of one's children. Rarely, if ever, would the murder of a parent fall outside the purview of subsection (d). Since we find no circumstances in the instant case *163 supporting the creation of an appropriate exception, we need not decide whether the commission of such a crime invariably shows unfitness to retain custody.
We hold that the probate court's finding that respondent had been convicted of a felony of such a nature as to prove his parental unfitness was supported by clear and convincing evidence and is not clearly erroneous. (As we have noted, we would reach the same result upon a de novo review.)
Respondent also contends that he was denied his due process rights to fair notice on the ground that the original summons he was given did not mention the possibility of termination of parental rights. We find no such denial of due process inasmuch as respondent received sufficient notice of this possibility when DSS filed the petition for permanent custody. Morover, respondent failed to raise this issue before the probate court.
Finally, respondent contends that the circuit court, in affirming the order of the probate court, improperly considered matters beyond the scope of the petition and substituted its own factual findings for those of the probate court. Even assuming this to be true, respondent has not been prejudiced thereby, since we have determined that the circuit court was correct in affirming the probate court's decision and since, in so doing, we have relied exclusively upon the probate court's findings.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585604/ | 33 So.3d 894 (2009)
STATE of Louisiana, Appellant,
v.
Ronnie BROWN, Appellee.
No. 45,138-KW.
Court of Appeal of Louisiana, Second Circuit.
October 15, 2009.
Jonathan M. Stewart, District Attorney, Douglas Leon Stokes, Jr., Assistant District Attorney, for Appellant.
Darrell Robert Avery, Jonesboro, for Appellee.
Before WILLIAMS, PEATROSS and DREW, JJ.
WRIT GRANTED; REVERSED AND REMANDED.
The search, occurring on January 5, 2009, is legal, at least on this record.
First, Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (4/21/09), may or may not be applicable to searches already conducted as the date of the decision. Gant has admittedly now restricted New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), for criminal searches occurring after the date of the opinion. In this writ application, however, it is of no moment, because the testimony at the motion to suppress establishes that on January 5, 2009, Deputy Shultz's vehicular search complied with the later requirements of Gant, because the arrestee (Ronnie Brown):
1. Had just been arrested;
2. Was still near the 18-wheeler; and
3. Was not shackled until after the discovery of the drugs.
Second, the law until April 21, 2009, (the date of the Gant opinion) was exactly as the deputy told the defendant. On January *895 5, 2009, it is crystal-clear that the passenger compartment could be searched incident to the arrest of a vehicular occupant, so long as the arrestee was still relatively near the vehicle, and had just recently been in the vehicle, as per Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), though the USSC gave us in Thornton no guidelines as to how far was too far, nor how long was too long. In State v. Canezaro, 957 So.2d 136 (La.2007), a vehicular search incident to arrest was approved by the La. Supreme Court (18.5 months before the search of R. Brown's 18-wheeler cab and 22 months before Gant) when, at the moment of the search incident to arrest, the two defendants were arrested, shackled, and locked in the police car at the scene, as per Belton.
Third, the deputy testified that he received a second consentand he was the only witness at the motion to suppress. The defendant did not seek to controvert his second consent by testifying for the limited purpose of the motion to suppress. Therefore, nothing in this sparse record refutes the validity of the second consent. The record may be fuller on appeal, in case of a conviction.
Fourth, if what the deputy said (about his legal right to search without consent) turns out not to have been the law on January 5, 2009, he was still in good faith [as per United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)] to say what the law allowed at the time (nobody knew or could have known what Gant was going to later hold), thus his securing of consent was valid, being obtained in good faith.
Fifth, the declaration by the defendant as to a firearm being in the cab presented a potential safety concern when leaving the vehicle in a parking lot with public access. The officer was objectively reasonable in removing the weapon to protect the public. See State v. White, 1 So.3d 439 (La. 1/21/09).
The court is aggrieved to some extent that the state's application was not in strict compliance with U.R.C.A. 4-4. Further, with a trial date of October 19, and the writ application not being filed until October 14, the applicant should have requested expedited consideration.
The ruling of the trial court, granting the motion to suppress, is reversed, and the case is remanded for further proceedings.
WILLIAMS, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585605/ | 321 N.W.2d 400 (1982)
Charlotte STRIEBEL, State of Minnesota, by William L. Wilson, Commissioner, Department of Human Rights, Appellants,
v.
The MINNESOTA STATE HIGH SCHOOL LEAGUE, Respondent.
Nos. 51940, 52042.
Supreme Court of Minnesota.
July 9, 1982.
Rehearing Denied September 10, 1982.
*401 Diane C. Hanson, MCLU, Linda Ojala, MCLU, Minneapolis, for Striebel.
Warren Spannaus, Atty. Gen., Mark Levinger and Richard Varco, Sp. Asst. Attys. Gen., St. Paul, for State.
Talle, Klint & Trimble and Douglas E. Klint, Anoka, for respondent.
Peterson, Popovich, Knutson & Flynn, Peter S. Popovich and Frances H. Graham, St. Paul, amicus curiae for Minnesota School Boards Ass'n.
Heard, considered and decided by the court en banc.
OTIS, Justice.
Appellant Striebel challenges, on equal protection grounds, the constitutionality of Minn.Stat. § 126.21, subd. 5 (1980), authorizing separate seasons of play for high school athletic teams separated or substantially separated according to sex. The trial court determined that the lack of adequate tennis and swimming facilities made it necessary to schedule these sports in two seasons, and that separating the teams by sex was a reasonable means of achieving maximum participation by both sexes in the high school athletic program. It concluded that the policy of the Minnesota State High School League (MSHSL) establishing separate seasons for boys and girls in tennis and swimming is constitutional and in compliance both with Minn.Stat. § 126.21 (1978), and as amended by Act of March 18, 1980, c. 355, 1980 Minn.Laws 40. We hold that under the narrow factual circumstances presented, the scheduling policies of the MSHSL do not rise to the level of a constitutional violation. We therefore need not decide the issue of the constitutionality of the statute.
A short history of previous litigation on this matter may be helpful. In Striebel, et al. v. St. Paul Board of Education, et al., (Ramsey County Dist.Ct., No. 397836, July 9, 1976), the plaintiffs alleged sex discrimination in the St. Paul school athletic programs. Interpreting the language of Minn. Stat. § 126.21 (1978) the court found that separate seasons were impermissible unless shown to be necessary to provide equal opportunity for both sexes to participate in athletics. Pursuant to that decision the St. Paul school board established a program for combined seasons for boys and girls participating in swimming and tennis, the effect of which was to exclude male swimmers and female tennis players from participation in state tournaments. After parents of several male swimmers and female tennis players sued to restrain the proposed season change, the St. Paul Board of Education was enjoined from combining seasons and ordered to set the swimming and tennis seasons to conform with the dates set by the MSHSL. Stumpf v. St. Paul Board of Education (Ramsey County Dist.Ct. No. 421814, August 25, 1977). Appellant Striebel intervened in that action and filed a third party complaint against respondent. The original action was dismissed prior to trial.
Minn.Stat. § 126.21 (1978) was amended after the close of the trial and permits the scheduling practices at issue.
The Minnesota State High School League was established in 1916 as a voluntary collection of Minnesota schools for the promotion of amateur sports. The majority of Minnesota public and private schools are members. The League establishes playing seasons for various sports and arranges tournaments at the state level when enough schools have demonstrated an interest. Girls' athletics came within the scope of the League's activities around 1969, and since then the program has grown enormously.
The first state girls' tennis tournament was held in the fall of 1974, and girls' state swimming meets were initiated in the fall of 1975. State tennis tournaments for boys began in 1929, and have traditionally been held in the spring. Boys' swimming meets have been held since 1930, traditionally scheduled in the winter. The MSHSL sponsors state tennis and swimming tournaments *402 for the girls' teams in the fall, a state swimming tournament for boys in the winter, and a state tennis tournament for boys in the spring. The League presently sponsors four tournaments in a coed format: skiing, track, cross-country and golf. A coed tournament means that the state meet is scheduled in the same season for both sexes and the boys' and girls' events are alternated. In the actual competition girls compete against girls and boys compete against boys.
Minn.Stat. § 126.21 (1980) does not prohibit co-educational teams. Where two teams in one sport are provided, one of the teams may be restricted to "members of a sex whose overall athletic opportunities have previously been limited." Id., subd. 3(4). This will generally mean that there will be one team restricted to girls only;[1] the other team is open to members of both sexes.
1. It is a basic principle of constitutional law that courts will avoid any constitutional question except with reference to the particular facts to which it is to be applied. See e.g., Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945). With this principle in mind, it should be made clear what this court does not decide. We do not hold that it would be constitutionally permissible to have separate seasons were adequate facilities available.[2] The evidence was uncontroverted that access to pool and tennis courts was limited in many high schools and no feasible way to accommodate boys' and girls' teams in the same season existed. The solution to this problem is an administrative decision uniquely within the competence of educators. Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Attorney General v. Massachusetts Interscholastic Athletic Association, 378 Mass. 342, 393 N.E.2d 284 (Mass.1979).
Appellant contends that alternative methods existed for dividing athletes between two seasons. We recognize that neither the solution chosen by the MSHSL nor the alternatives espoused by appellant are without disadvantages. Experts testified to the harmful effects of sex segregation on women and men in their work and social relationships, and on women's economic status and later career development. Respondent's assertion that girls are not disadvantaged, because they have the opportunity to compete on the boys' teams in the spring and fall tournaments, is not dispositive of the issue. Appellant does not seek coeducational teams, acknowledging that physiological differences among men and women make separate teams necessary for the time being to provide girls with equal athletic opportunity. That being the case, it should be noted that treatment of the separate teams must be as nearly equal as possible, and separation allowed only to the extent absolutely necessary to provide equal athletic opportunity for all participants.
Appellant has not suggested that the teams are treated unequally in any way regarding length of seasons, game rules, coaching, or money spent on the programs. The only allegation is that girls' teams are placed in a separate season. While we could not condone a solution which benefited boys at the expense of the more recent girls' programs, neither season is so substantially better than the other as to deny equal protection of the laws.
We hold that under the limited factual situation presented, the practice of scheduling two teams substantially separated according to sex is a permissible scheduling decision for the MSHSL to make. While we concur in the argument that coeducational athletic programs are preferable *403 to sex-segregated programs, respondent is not constitutionally compelled to offer a gender-neutral two season format.
The State appeals separately from that part of the order below requiring it to pay the cost of a trial transcript, ordered by respondent to use in preparation of the post-trial brief, and the cost of copies of four discovery depositions not used at trial.
2. Although no case in this jurisdiction has discussed the award of costs of the transcript used to prepare post-trial briefs, the law is well-settled that amounts paid for the transcript for the purpose of making a motion for a new trial are not taxable to the other party. See Wadleigh v. Duluth Street Railway Co., 92 Minn. 415, 100 N.W. 362 (1904). In Salo v. Duluth and Iron Range Railroad Co., 124 Minn. 361, 145 N.W. 114 (1914), this court held that the cost of a trial transcript obtained daily for the convenience of the attorney during trial is not a taxable disbursement. "If we rule as plaintiff desires on this point, we may look for a transcript to tax in almost every case tried." Id. at 364, 145 N.W. at 115. The policy reasons stated in Salo were cited with approval in Miller v. Commissioner of Taxation, 242 Minn. 29, 64 N.W.2d 1 (1954), where we held that the costs incurred in obtaining a transcript for use before the board of tax appeals were not taxable against the losing party. We therefore reverse that portion of the trial court's order which awards the costs of the transcript to respondent.
As no Minnesota case dealing with deposition costs appears to be on point, the trial court was free to determine whether the deposition costs were "necessary" items under Minn.Stat. § 549.04 (1980). The award of costs of the copies of the discovery depositions being within the discretion of the trial court, it will not be reversed except for a clear abuse of discretion. Romain v. Pebble Creek Partners, 310 N.W.2d 118, 123-24 (Minn.1981). We affirm the award of discovery costs.
Reversed in part, affirmed in part.
WAHL, Justice (dissenting in part).
I respectfully dissent from the holding in Case No. 51940.
Minn.Stat. § 126.21, subd. 5 (1980), permitting athletic competition or tournaments to be assigned to seasons that are separate on the basis of sex, allows a classification based solely upon gender and thus triggers review under the Equal Protection Clause of the 14th Amendment of the United States Constitution. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). That clause guarantees that "[n]o state shall * * * deny to any person within its jurisdiction the equal protection of the laws." In scheduling separate but equal seasons of play and tournaments in tennis and swimming for its member schools, the League acts under the color of state law. See Brenden v. Independent School 742, 477 F.2d 1292, 1295 (8th Cir. 1973). Therefore, the court must carefully scrutinize this gender-based classification.
The United States Supreme Court has determined that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). Administrative ease and convenience are not sufficiently important objectives to justify gender-based classifications. Id. at 198, 97 S.Ct. at 457.
The appellant argues, and the majority concurs in the argument, that coeducational athletic programs are preferable to sex-segregated programs. The majority specifically does not hold that it would be constitutionally permissible to have separate seasons where adequate facilities are available. The decision turns on the adequacy of the facilities.
The majority accepts the League's contention that the boys' and girls' swimming and tennis tournaments must be scheduled separately because many of its member schools do not have enough pools and tennis courts to accommodate in one season all the boys and girls who wish to participate in those sports. Maximum participation by both girls and boys in swimming and tennis *404 is an important objective. The League has not demonstrated, however, that scheduling separate seasons is the only feasible way to achieve that objective. It was clear from the evidence that adequacy of facilities, as far as seasonal practice and play are concerned, is no problem in out-state schools and, for swimming in particular, is no problem in the metropolitan area. Iron Range schools participated in the earlier, 1924-1942, period of swimming and operated their boys' and girls' programs in the same season. Even in the metropolitan area, St. Paul athletic director Wayne Gilliland reluctantly admitted, "I guess I always would believe that swimming probably was a possibility * * * because we do have the pools." Availability of tennis courts is considered by Dr. James Phillips, an assistant superintendent, to be an administrative problem which is solvable by leasing courts if necessary. Facilities management is also crucial. Essentially the same court facilities were used by the St. Paul Highland Park coach to handle 12 to 15 tennis players and by the St. Paul Johnson coach to handle 36 to 50 tennis players. It appears that, even as far as the boys are concerned, participation is limited more by lack of assistant coaches than by lack of ability to schedule existing facilities to accommodate more participants.
Further, the League has not demonstrated that the division of swimming and tennis tournaments by gender is substantially related to its objective of assuring the availability of tennis and swimming to as many students as possible or necessitated by inadequate facilities. Jean Freeman, A.A. U. coach and head coach of the women's swimming team at the University of Minnesota, who had extensive experience in conducting coed meets, gave detailed proposals for running a coed swimming tournament. A state coed tennis tournament is also feasible. The number of courts and time needed for such a tournament can be kept the same by playing more rounds outstate at the regional level before players advance to the state level. Under the separate-season format, only one round is played outstate. The League does have the ability to make such adjustments and changes. As appellant notes, the League completely changed the format of its tennis tournaments when it divided schools into A and AA classes. This change doubled the size of the tournaments and was made expressly to increase participation.
Segregation by gender has an adverse effect on girls' tennis and swimming. Because boys' tennis has traditionally been scheduled in the spring, girls' tennis is relegated to the fall season. The results are that girls must begin their tennis season before the school year begins and that their season may be cut short by early winter weather. The boys do not suffer these disadvantages. New, less-experienced coaches are also more likely to be assigned to the girls' teams. According to statistics supplied by the Athletic Department of the St. Paul Public Schools, the average experience of coaches assigned to boys is 8.1 years; the average experience of coaches assigned to girls is 4.5 years.
More importantly, segregation by gender has long-term adverse effects. Experts such as psychologist Dorothy Loeffler and Nina Rothchild, executive director of the Council on the Economic Status of Women, testified at trial that sex segregation in athletic programs contributes materially to the failure of both men and women to work together in career situations, as well as to occupational sex segregation and the lower economic status of women. Sex bias does exist in the schools and, according to Dr. Phillips, coed athletic activities serve to reduce this bias.
Schools with adequate facilities or the will to use their facilities and resources creatively who wish to reduce sex bias by providing coeducation in swimming and tennis will be unable to do so. They are forced into separate seasons by the League's sex-based assignment of separate seasons. This classification serves no important governmental interest on a state-wide basis and cannot be upheld under the Craig v. Boren constitutional standard relating to gender-based discrimination.
I would reverse.
*405 TODD, Justice (dissenting).
I join in the dissent of Justice Wahl.
YETKA, Justice (dissenting).
I join in the dissent of Justice Wahl.
SCOTT, Justice (dissenting).
I join in the dissent of Justice Wahl.
NOTES
[1] Contra, Gomes v. Rhode Island Interscholastic League, 469 F.Supp. 659 (D.R.I.), vacated on other grounds, 604 F.2d 733 (1st Cir. 1979) (interpreting the phrase "athletic opportunities for members of that sex [which] have previously been limited" in regard to the particular sport and team in question rather than overall athletic opportunities for the sex). Id. at 663-64.
[2] The question of whether "separate but equal" teams could withstand constitutional scrutiny is not before us, and such a decision is unnecessary to an adjudication of this action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014616/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1111
JOHN P. WELDON, d/b/a Corporate Dynamics,
Plaintiff - Appellant,
versus
INNOVATIVE MANAGEMENT CONCEPTS, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CA-03-363-A)
Argued: September 29, 2004 Decided: October 29, 2004
Before WILKINS, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Stephen DelSordo, HALLORAN & SAGE, L.L.P.,
Washington, D.C., for Appellant. Brian Paul Waagner, WICKWIRE
GAVIN, P.C., Vienna, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John P. Weldon appeals a district court order granting
summary judgment in favor of Innovative Management Concepts, Inc.
(IMC) in this case arising from an agreement calling for
cooperation in the pursuit of business opportunities with the
United States government (the Agreement). We affirm.
I.
Weldon is a software developer, and IMC is engaged in the
business of providing services to the United States government.
Under the Agreement, Weldon and IMC planned to work together to
identify possible government customers and respond to their
requests for proposals. In the event IMC was awarded a contract
that called for the provision of Weldon’s software, the parties
agreed that they would attempt to negotiate an appropriate
subcontract. Regarding proposals to the United States Air Force,
the Agreement required IMC to communicate with the Air Force and
Weldon to provide any necessary technical information. The
Agreement further provided that unless they agreed differently in
subcontract negotiations, both parties would be responsible for
their own expenses.
This case arises out of IMC’s presentation of Weldon’s
software to the Air Force as part of its Air Expeditionary Wing
Analysis System (AEWAS). AEWAS is a software system that provides
2
training for Air Force personnel as well as detailed unit-level
analysis of Air Force operations. A concept paper that IMC and Air
Force personnel jointly prepared named Weldon’s software as one of
two possible means for providing the unit-level analysis. Although
IMC was eventually awarded the Air Force contract, the contract did
not call for the use of Weldon’s software. IMC therefore did not
attempt to negotiate any subcontract with Weldon.
Weldon subsequently filed this suit against IMC alleging
that IMC had failed to meet its obligations under the Agreement.
The district court dismissed four of Weldon’s original seven claims
at the pleadings stage. After discovery was concluded, the
district court granted IMC’s motion for summary judgment on
Weldon’s remaining claims for breach of contract, quantum meruit,
and misappropriation of trade secrets.
II.
Weldon first argues that the district court erred in
granting summary judgment against him on his breach of contract
claim. We disagree.
Weldon asserts that IMC breached the Agreement by failing
to award him a subcontract after receiving the Air Force contract.
However, under the terms of the Agreement, IMC had no obligation to
even negotiate with Weldon because the Air Force contract did not
call for Weldon’s software. Moreover, even if the Air Force
contract had called for use of Weldon’s software, the Agreement
3
specifies no scope of work, price, or duration for any resulting
subcontract; rather, it is merely an agreement to negotiate. Such
indefiniteness precludes a successful breach of contract claim
alleging IMC’s improper failure to award a subcontract. See W.J.
Schafer Assocs. v. Cordant, Inc., 493 S.E.2d 512, 515 (Va. 1997).
III.
Weldon also argues that the district court erred in
granting summary judgment against him on his quantum meruit claim
seeking payment for benefits he conferred upon IMC in preparing and
submitting the Air Force contract proposal. Again, we disagree.
Weldon’s quantum meruit claim fails as a matter of law
because the Agreement requires each party to bear its own costs and
expenses related to the preparation and submission of proposals:
Each party shall bear all costs, risks, and
liabilities incurred by it from the discharge
of its obligations and efforts under this
agreement during the pre-proposal and proposal
period. This period is defined as the period
up to an award of a prime contract....
Neither party shall have any right to
reimbursement, payment, or compensation of any
kind from the other party during the period to
the award of a contract....
J.A. 34-35 (emphasis added). Although the Agreement is not
sufficiently definite to support a claim for IMC’s failure to award
Weldon a subcontract, nothing prevents the enforcement of the
requirement that each party bear its own costs. See Raymond,
Colesar, Glaspy & Huss, P.C. v. Allied Capital Corp., 961 F.2d 489,
4
491 (4th Cir. 1992) (holding under Virginia law that “[o]ne cannot
obtain quantum meruit relief from another if he has expressly
delineated the contractual obligations the two will have on the
subject in question”). In any event, the mere existence of the
parties’ agreement to bear their own costs makes unreasonable any
expectation that Weldon may have had that he would be reimbursed
for expenses he incurred in performance of the Agreement. See id.
(holding that to establish quantum meruit liability under Virginia
law, a plaintiff must have had a reasonable expectation of
receiving payment, and the defendant must have reasonably expected
to pay).
IV.
In sum, the district court properly granted summary
judgment against Weldon.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014643/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2511
TAHA ABDIN MOHAMED ARSAD,
Petitioner,
versus
JOHN ASHCROFT, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-492-707)
Submitted: September 24, 2004 Decided: October 27, 2004
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Petition denied by unpublished per curiam opinion.
James A. Roberts, LAW OFFICE OF JAMES A. ROBERTS, Falls Church,
Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney
General, Anthony W. Norwood, Senior Litigation Counsel, Margot L.
Nadel, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Taha Abdin Mohamed Arsad, a native and citizen of Sudan,
petitions for review of an order of the Board of Immigration
Appeals (Board) affirming the immigration judge’s denial of his
application for asylum and withholding of removal. The Board ruled
that Arsad failed to present sufficient corroborative evidence in
support of his claim. Arsad contends that his testimony was
credible and corroborated and was therefore sufficient. To obtain
reversal of a determination denying eligibility for relief, an
alien “must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear
of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992). We have reviewed the evidence of record and conclude that
Arsad fails to show that the evidence compels a contrary result.
Nor can Arsad show that he was entitled to withholding of
removal under 8 U.S.C. § 1231(b)(3) (2000). “Because the burden of
proof for withholding of removal is higher than for asylum--even
though the facts that must be proved are the same--an applicant who
is ineligible for asylum is necessarily ineligible for withholding
of removal under [8 U.S.C.] § 1231(b)(3).” Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004).
We reject Arsad’s arguments that he was denied due
process at the hearing before the immigration judge. “In order to
prevail on a due process challenge to a deportation or asylum
- 2 -
hearing, an alien must demonstrate that he was prejudiced by any
such violation.” Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002).
The asylum applicant must show “that better procedures are likely
to have made a difference in the outcome of his hearing.” Id. at
324. Arsad fails to show such prejudice.
We deny the petition for review. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
PETITION DENIED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585623/ | 115 Mich. App. 630 (1982)
321 N.W.2d 752
PEOPLE
v.
JOHNSON
Docket No. 54842.
Michigan Court of Appeals.
Decided April 23, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Myron E. Sanderson, for defendant.
Before: BEASLEY, P.J., and T.M. BURNS and E.A. QUINNELL,[*] JJ.
PER CURIAM.
The defendant appeals his jury conviction of assaulting an employee of a place of confinement, MCL 750.197c; MSA 28.394(3).
On November 7, 1979, defendant was being moved from a housing unit to the infirmary at the State Prison of Southern Michigan by Officer Coutu. Defendant wished to take his legal papers with him to the infirmary, and Coutu denied him permission to do so. After some discussion, Officer Coutu checked with his supervisor, who decided that defendant should be allowed to take the papers. At this point the testimony diverges. Officer Coutu and other Department of Corrections employees claim that defendant then spat in Coutu's face, Coutu pushed defendant away, and defendant then struck Coutu over the right eye with his fist. Defendant and a resident witness claimed that after the telephone discussion with a supervisor *633 Officer Coutu initiated the physical confrontation with defendant and that defendant only acted defensively. The jury obviously accepted Officer Coutu's version of the incident. Defendant raises numerous issues on appeal.
I. The defendant's challenges to the validity and applicability of the statute under which he was charged must be rejected. People v Wingo, 95 Mich App 101; 290 NW2d 93 (1980); People v Bellafant, 105 Mich App 788; 307 NW2d 422 (1981); People v Boyd, 102 Mich App 112; 300 NW2d 760 (1980), lv den 412 Mich 927 (1982). Justice LEVIN, dissenting from the order denying leave to appeal in Boyd, raises some interesting questions regarding the interpretation of the statute. Pending further Supreme Court or legislative clarification, we conclude that the legislative use of the word "violence" in the statute was intended to include only the concept of violence implicit in any assault and, therefore, that any assault committed by a prison resident on an employee of the prison, whether or not committed during an escape, falls within the purview of the statute.
II. Defendant claims that he was not tried within 180 days as is required by MCL 780.131 et seq.; MSA 28.969(1) et seq.
Initially, we note that the statute does apply, even though any sentence imposed as to the charge must be served consecutively to the sentence which the defendant was serving at the time of the commission of this offense. We can place no other reasonable interpretation on the Supreme Court order in People v Pitsaroff, 411 Mich 941 (1981).[1]
*634 The 180-day period commenced no later than November 13, 1979, that being the date on which the prosecuting attorney's office authorized the issuance of a warrant. People v Hill, 402 Mich 272; 262 NW2d 641 (1978). The period therefore expired on May 12, 1980. Trial did not commence until July 16, 1980.
However, it is well established that the actual trial need not commence within the 180-day period; rather, the prosecution must establish that it took good faith action within that time to ready the case for trial. People v Hill, supra. Under these circumstances, a remand for an evidentiary hearing is sometimes required. Pitsaroff, supra. An evidentiary hearing is not required in this case because the reasons for delay are in the present record. Following the defendant's preliminary examination he ordered a transcript of those proceedings, which resulted in a delay in his circuit court arraignment until January 8, 1980. On January 15, 1980, he filed a petition for a diagnostic commitment to determine competency to stand trial. A competency examination was ordered and a trial date set for April 23, 1980. Defendant and the examiner experienced problems during the initial competency examination; the examiner characterized the defendant as uncooperative, such that the originally scheduled competency hearing could not be held. A new competency hearing was thereafter scheduled, and the trial date adjourned to July 9, 1980. The subsequent one-week delay was occasioned by stipulation of the parties, apparently because of defense counsel's vacation plans. *635 It is clear from this record that the prosecution did make a good faith effort to bring the matter to trial within 180 days as required by statute.
We would not be understood as requiring a defendant to waive one right (e.g., a trial within 180 days) in order to secure another (e.g., the right to a preliminary examination transcript). Rather, we merely recognize that in some instances pretrial activities of a defendant, whether justified or not, will result in a trial's not being commenced with 180 days despite the good faith efforts of the prosecution to have the case ready for trial.
III. Defendant also claims that he was denied his constitutional and statutory right to a speedy trial. Const 1963, art 1, § 20; MCL 768.1; MSA 28.1024. A delay of eight months is sufficient to trigger the constitutional inquiry. People v Chism, 390 Mich 104; 211 NW2d 193 (1973).
Resolution of the speedy trial issue involves a balancing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. See, e.g., People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972).
The length of delay and the reason for the delay have been previously discussed. The defendant did not assert his speedy trial rights in the trial court.
Because the trial took place within 18 months of the offense, prejudice to the defendant is not presumed; Grimmett, supra, citing People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948). The only prejudice which defendant claims now is that because of his incarceration he had a limited opportunity to make a determination of whether or not there were available witnesses. That argument carries little weight inasmuch as defendant would have been incarcerated in any event. We find no *636 prejudice to the defendant from the delay. Prejudice has been identified by the United States Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), as affecting three specific interests of a defendant, namely the interests in avoiding oppressive pretrial incarceration, minimizing anxiety and concern, and limiting the possibility that the defense will be impaired. None of those interests of this defendant were significantly affected by the delay in this case.
On balance, we conclude that the defendant was not denied his right to a speedy trial.
IV. Defendant claims that the trial court erred in allowing the prosecution to impeach the defendant by the use of evidence of defendant's prior criminal convictions. We disagree. The trial judge recognized his discretion and articulated his reasons for permitting impeachment as he did. While not all trial courts would have permitted that impeachment, such a result is implicit in the concept of discretion. The trial court fully complied with MRE 609(a)(2).
V. Defendant also complains that the court erred in allowing the prosecutor in his closing argument to refer to the defendant as being paranoid. A review of the context indicates that the prosecutor was not using the term in its technical sense, but in the street sense. The prosecutor related his argument to specific portions of defendant's testimony, and his remarks constituted fair comment on the evidence.
VI. We have carefully examined the remaining allegations of error and find only two that merit further discussion.
A. Defendant was convicted both of the assault and of being a habitual offender; he was sentenced to a minimum term of six years and a maximum *637 term of eight years. The sentence did not constitute cruel and unusual punishment and was not disproportionate to the crime that was committed; nor did the trial court fail to consider appropriate sentencing considerations.
After defendant's sentence was imposed, this Court held, in People v Langham, 101 Mich App 391; 300 NW2d 572 (1980), that a person charged as a habitual criminal must be given an indeterminate sentence. An issue remaining unaddressed is whether such an indeterminate sentence is subject to the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). Since that question has not been raised or briefed by the parties in this appeal, we decline to address it.
B. The incident took place near a desk normally occupied by Worrell, a resident of the prison who served as a clerk for the base unit. Worrell was not produced as a witness at trial; defendant claims that his absence constitutes error.
The testimony of the witnesses was divided as to whether Worrell was or was not present. At the close of the prosecution proofs, defendant moved for an instruction to the effect that Worrell's testimony would have been adverse to the prosecution but did not move for a mistrial or for production of Worrell. The trial court denied the requested instruction.
Resolution of this issue is governed by People v Pearson, 404 Mich 698; 273 NW2d 856 (1979). If the question of a missing res gestae witness arises during the course of the trial, Pearson, supra, 721, requires that the trial court hold a hearing and decide first whether the witness is a res gestae witness; if so, the court should order the prosecution to produce the witness. If the witness is not produced the court should then hold a hearing as *638 to whether the prosecution exercised due diligence in producing the witness. Only if the trial court determines that the witness is a res gestae witness, that the witness was not produced, and that the prosecution failed to exercise due diligence is the defense entitled to the "adverse to the prosecution" instruction.
In the instant case, the trial court did not hold a separate hearing but instead relied on its notes of the testimony of the prosecution witnesses in holding that Worrell was not a res gestae witness. Having the benefit of the whole transcript, and having in mind the firm and abiding commitment of the State of Michigan to the requirement that the prosecution produce all res gestae witnesses,[2] we are not convinced that the trial court was entirely correct.
However, Pearson, supra, 722 also requires the following:
"Assuming a verdict of guilty, the defendant must raise the issue of prejudice and seek a remedy in a Robinson-type [People v Robinson, 390 Mich 629; 213 NW2d 106 (1973)] procedure or be foreclosed from rasing these issues on appeal. If the defendant is dissatisfied with the results of the Robinson hearing, remedy may be sought in the defendant's appeal as of right."
Defendant having failed to make such a post-conviction motion, the issue is not appropriately before us for appellate review.
Affirmed.
T.M. BURNS, J. (dissenting in part, concurring in part).
Respectfully, I dissent from the majority's *639 refusal to address sua sponte the question of whether defendant's sentence should be amended to comply with the indeterminate sentencing standards of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
In People v Langham, 101 Mich App 391; 300 NW2d 572 (1980), this Court held that the sentence of a person convicted of being an habitual offender should be indeterminate. Finding that the defendant in the case before it had not been sentenced in compliance with the two-thirds requirement of Tanner, this Court, in lieu of remanding for resentencing, corrected the defendant's sentence to bring it into compliance with Tanner.
I would apply that remedy in this case. Although defendant did not raise this issue and neither party has briefed it, all facts necessary for its resolution are before this Court and the law on this issue is clear. For this reason, I would correct defendant's sentence to five years, four months minimum to eight years maximum. People v Langham, supra, 398. I am in agreement with the majority's resolution of the remainder of the issues before this Court in this appeal.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] In People v Pitsaroff, 102 Mich App 226; 301 NW2d 858 (1980), a panel of this Court reversed a conviction on the ground that the 180-day rule had been violated. Although the Supreme Court summarily reversed, 411 Mich 941; 308 NW2d 98 (1981), it remanded the case to the trial court for an evidentiary hearing and directed this Court to determine, on the basis of the testimony presented at the hearing, whether the 180-day rule had been violated. Such a disposition would have been unnecessary if, as a panel of this Court held in People v Loney, 12 Mich App 288; 162 NW2d 832 (1968), the rule is inapplicable to offenses committed after imprisonment.
[2] Hurd v People, 25 Mich 405 (1872). B.J. George suggests that the requirement is an anachronism and should be modified; I Michigan Criminal Procedure 8.10-3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585626/ | 108 Wis.2d 17 (1982)
321 N.W.2d 115
STATE of Wisconsin, Plaintiff-Respondent,
v.
Bradley John POTH, Defendant-Appellant.
No. 81-1230.
Supreme Court of Wisconsin.
Argued June 3, 1982.
Decided July 2, 1982.
For the defendant-appellant there was a brief and oral argument by Gerald P. Boyle of Milwaukee.
For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
On by-pass from court of appeals.
BEILFUSS, C.J.
This is an appeal from an order of the circuit court for Sheboygan county which denied the defendant's motion for post-conviction relief pursuant to sec. 974.06(1), Stats.[1] This court granted the State's petition *18 to bypass the court of appeals under sec. 808.05(1).[2]
The defendant, Bradley John Poth, was charged with first-degree murder in the shooting death of his wife, Jacqueline. The couple had been married in February, 1972. Their marriage was a stormy one, marked by numerous arguments and some physical altercations. In July of 1974, the defendant vowed he would never strike Jacqueline again. He kept this vow until immediately before the shooting on May 22, 1977. Despite this promise, the parties separated in August of 1974, and Jacqueline served him with divorce papers. The defendant learned that his wife had been involved in several extramarital affairs with other men, but he still attempted to become reconciled with her. In December, 1975, they resumed living together, but on February 20, 1976, Jacqueline left him again. This pattern continued for the next year, with the couple reconciling and then breaking up again on several occasions.
During May, 1977, they attempted to resume their marriage once again. On May 22nd they went to a picnic with some friends. An argument developed and Jacqueline became very upset and demanded that they leave. As they drove away in the defendant's van, Jacqueline *19 was extremely angry and upset. She shouted at Poth, scratched and hit him. She demanded that he stop the van. When he did so, she jumped out. He followed her and she continued to yell at him and to strike him. Thereupon he broke his "vow" and hit her several times in the face. Poth testified that this was all he remembered about the incident until later, when he recalled driving on the freeway towards Milwaukee.
At trial, a witness described what happened when the shooting occurred. The witness saw Jacqueline cross the road, crying for help. She then saw the defendant walk to the van, pull out a gun and walk at a normal pace towards his wife, with the gun pointed at her. He fired three times and then walked back to the van and drove away at a normal rate of speed.
The defendant did not deny killing his wife. His defenses at trial were that he was not responsible for his actions because he suffered from a mental disease or defect, and alternatively, that he acted in the heat of passion and was thus only guilty of manslaughter. A jury trial was waived and the court found him guilty of second-degree murder and sentenced him to a term of 20 years. The court found Poth not guilty of first-degree murder because it found a reasonable doubt as to his ability to form the specific intent necessary for first-degree murder.[3] It found that his conduct did evince a depraved mind, regardless of human life, as required for second-degree murder.[4] The court considered and rejected the *20 possibility of finding him guilty of the lesser offense of heat of passion-manslaughter.[5] In explaining its reasoning, the court stated in part, "The Court has rejected manslaughter because I am not convinced beyond a reasonable doubt that there was a reasonable or adequate provocation if one uses the standard of the ordinary man which is mandated by the case law in this state."
Poth appealed to the court of appeals, which affirmed the conviction. He then petitioned this court for review, arguing for the first time that the above-quoted statement by the trial court indicated that the court had unconstitutionally shifted the burden to him to prove that adequate provocation existed to justify a conviction on the lesser crime of manslaughter. This court declined to grant the petition for review. The defendant then raised this constitutional issue in a petition for a writ of habeas corpus to the United States District Court for the Eastern District of Wisconsin. The district court ruled that Poth had not exhausted his state law remedies because he had not raised this constitutional argument to the trial court or to the court of appeals. The district court ruled that sec. 974.06, Stats., supra, provided an appropriate method to raise this issue in the state courts and should therefore be employed. Poth appealed the denial of the writ to the United States Court of Appeals for the Seventh Circuit, but subsequently filed a notice of voluntary withdrawal of appeal.
In February, 1981, the defendant made a motion in the trial court, pursuant to sec. 974.06, Stats., to vacate *21 the conviction. He argued that the trial court had improperly shifted the burden of proof to him on the manslaughter issue, in violation of his due process rights. the court denied the motion, acknowledging that it had made a misstatement in ruling on the question of manslaughter. Judge Deehr, the trial judge, explained that he had not shifted the burden of proof from the State to the defendant. He attempted to state, in his oral decision, that he was satisfied beyond a reasonable doubt that there was no reasonable or adequate provocation which would properly give rise to the heat of passion. Judge Deehr had previously explained this misstatement in an affidavit submitted by the State in opposition to the defendant's petition for habeas corpus in the federal district court.
Poth appealed this denial of the motion for postconviction relief to the court of appeals. This court then granted the State's petition to bypass the court of appeals.
This case brings up the issue of the proper allocation of the burden of proof when a defendant claims that his conduct amounted to heat of passion-manslaughter, instead of first or second-degree murder. This question is also presented in two similar cases which we decide today (July 2, 1982), State v. Lee, 108 Wis. 2d 1, 321 N.W. 2d 108 (1982), and State v. Oliver, 108 Wis. 2d 25, 321 N.W.2d 119 (1982). In Lee, we discussed the confusion that has arisen in this state over the distribution of the burden of proof when heat of passion is at issue. We held in Lee that when a defendant introduces sufficient evidence to raise the issue of heat of passion-manslaughter, the State must prove beyond a reasonable doubt that the heat of passion did not exist.
In this case we believe that the trial court correctly applied this standard, despite misstating it. The defendant essentially relies on the single statement by Judge *22 Deehr, quoted above. If we were convinced that the court had actually placed the burden on the defendant to prove heat of passion, then a reversal would be in order. However, several factors persuade us that this was merely a misstatement.
First and most important is the sworn statement by Judge Deehr. In it he clearly states that the quoted statement in question was a misstatement, made while orally announcing his findings of fact and conclusions of law. He ruled from the bench without the benefit of a formal written decision or outline. Judge Deehr states in the affidavit that "the Court was in fact attempting to state, as indicated in other parts of the transcript, that it was satisfied beyond a reasonable doubt that there was no reasonable or adequate provocation which would give rise to the element of heat of passion." Absent this affidavit, it would be more difficult to ascertain whether the court actually recognized the proper standard. In this case, however, we attach substantial credence to the sworn affidavit of the trial judge, setting forth that this was merely a misstatement.
Furthermore, the context of the judge's statements supports the conclusion that he correctly placed the burden on the State. The trial court consistently placed the burden of proof on the State in ruling on the other possible charges. It held that it could not conclude beyond a reasonable doubt that Poth possessed the specific intent necessary for first-degree murder. In finding Poth guilty of second-degree murder, the judge stated that he was satisfied "and the Court is talking in terms beyond a reasonable doubt" that his conduct evinced a depraved mind.
It is also significant that the court's misstatement involved the "beyond a reasonable doubt" standard. The arguments in this case, as well as in Lee and Oliver, have focused on whether the State or the defendant should *23 bear the burden of proof on the heat of passion issue. But it has never been suggested to this court that if the burden is to be placed on a defendant, then he must prove the issue beyond a reasonable doubt. In arguing that the burden rests on a defendant, the State has consistently claimed that the proof would have to be by a preponderance of the evidence standard. It would be inconceivable to suggest that a defendant would have to prove this issue beyond a reasonable doubt. We do not believe that the trial court made an error of this sort. Had the court spoken in terms of a preponderance standard, then it may have been more likely that it was placing the burden on the defendant. But the very use of the reasonable doubt standard lends support to our conclusion that the court simply misstated its rationale.
Finally, the facts the trial court found were entirely consistent with a conclusion beyond a reasonable doubt that adequate provocation for the heat of passion did not exist. As we explained in Lee, adequate provocation encompasses both subjective and objective components. Lee, supra, at p. 12. The provocation must be sufficient to cause a reasonable person to act in the heat of passion. In this case the court found "no justification for this killing. Any act of aggression by the deceased had terminated. The fight was over. The Court could not find that there was such provocation when one considers the psychological or physical harm that the defendant may have sustained at the hands of the deceased." The court also stated that: "The physical injuries sustained by the defendant as a result of the hair pulling, the scratching, were insignificant. The deceased's statements to the defendant did not seem to be any different than statements she made, or conduct she undertook which would indicate such feelings as were then voiced on a *24 number of occasions during the course of their marriage so as to magnify this particular instance so as to constitute the degree of provocation necessary to make manslaughter appropriate." The court also considered it significant that the defendant slowly walked from the van towards his wife, fired the gun, and turned to walk away in a normal or slow fashion. These slow, deliberate movements were characterized by the court as not being the actions of a person in the heat of passion.
Our opinion of today in State v. Lee, supra, which provides that when the defendant has come forward with evidence sufficient to raise the issue of heat of passion the burden is upon the State to disprove adequate provocation beyond a reasonable doubt, controls the legal issue raised herein.
We conclude, therefore, that the trial court simply misspoke when it appeared to place the burden of proof on the defendant. The findings made by the judge are consistent with his explanation in the affidavit that he correctly placed the burden of proof on the State.
By the Court. Order affirmed.
NOTES
[1] Sec. 974.06(1), Stats, reads:
"974.06 Post-conviction procedure. (1) After the time for appeal or post-conviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
[2] Sec. 808.05(1), Stats., provides:
"808.05 Bypass. The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:
"(1) It grants direct review upon a petition to bypass filed by a party."
[3] Sec. 940.01, Stats., states:
"940.01 First-degree murder. (1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
"(2) In this chapter `intent to kill' means the mental purpose to take the life of another human being."
[4] Sec. 940.02, Stats., provides:
"940.02 Second-degree murder. Whoever causes the death of another human being under either of the following circumstances is guilty of a Class B felony:
"(1) By conduct imminently dangerous to another and evincing a depraved mind, regardless of human life."
[5] Sec. 940.05, Stats., states:
"Manslaughter. Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:
"(1) Without intent to kill and while in the heat of passion." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585629/ | 115 Mich. App. 516 (1982)
321 N.W.2d 717
PEOPLE
v.
CRAWFORD
Docket Nos. 59560, 59660.
Michigan Court of Appeals.
Decided April 22, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Jeffrey W. Caminsky, Assistant Prosecuting Attorney, for the people.
Elizabeth L. Jacobs, in Docket No. 59560, and Frank Singer, in Docket No. 59660, for defendant on appeal.
Before: D.C. RILEY, P.J., and R.B. BURNS and S. EVERETT,[*] JJ.
D.C. RILEY, P.J.
Defendant pled guilty in separate cases to charges of armed robbery, MCL 750.529; MSA 28.797, and attempted receiving or concealing stolen property over the value of $100, MCL 750.92; MSA 28.287. He was sentenced on the armed robbery conviction to a term of three and one-half to ten years imprisonment. The sentence on the attempt conviction was to a concurrent term of one to two and one-half years imprisonment.
The armed robbery conviction is challenged first on the basis that the trial court failed to advise defendant of the mandatory minimum sentence for armed robbery in accordance with GCR 1963, 785.7(1)(d) and that armed robbery is a nonprobationable offense in accordance with GCR 1963, 785.7(1)((f).
The trial court's failure to advise defendant that armed robbery is a nonprobationable offense requires *518 reversal. Recently, the Supreme Court decided People v Rogers, 412 Mich 669; 316 NW2d 701 (1982). In that case Rogers had pled guilty to second-degree murder and possession of a firearm during the commission of a felony. The trial court failed to advise Rogers, as required by Rule 785.7(1)(f). The Supreme Court noted the conflicting positions this Court has taken on whether noncompliance with Rule 785.7(1)(f) requires reversal. The Court then held that noncompliance with subsection (f) requires reversal and apparently always has. Therefore, defendant Crawford's armed robbery conviction must be reversed.
The remaining issues raised by defendant merit comment. Whether armed robbery has a mandatory minimum sentence, and if so, what that minimum period of incarceration is, are questions which have divided this Court. See People v West, 113 Mich App 1; 317 NW2d 261 (1982). These questions need not be resolved in this case. However, in light of the dilemma posed for the trial courts, we would urge that defendants be advised that the maximum sentence for armed robbery is life imprisonment and the minimum sentence is any term of years, which some courts have interpreted to mean that the defendant must serve at least one year and one day. This advice would inform the defendant and hopefully satisfy the varied dictates of this Court.
Crawford also challenges the armed robbery and attempt convictions on the basis of the trial court's ex parte communication with the presentence investigator. Defendant entered his plea to armed robbery on May 12, 1981. He then was referred to the probation department for a presentence report. The court granted a continuance from May 27, 1981, to June 5, 1981, because the presentence report was not accurate.
*519 On June 5, 1981, the defendant was sentenced on the armed robbery charge and he then entered his plea to the attempt charge and was sentenced on that charge. At the start of the June 5th proceedings, the court stated:
"The Court: Counsel, we were here before for a sentencing, at which time you had read the presentence report, gone over it with your client and then you informed me of certain inaccuracies, alleged inaccuracies in this presentence report. One of the most important dealt with a Youthful Trainee that the presentence report showed there had been. If I remember what the presentence report said, they allege that it was revoked and that he was actually sentenced.
* * *
"We have Mr. Michael Donohue here. Now, Mr. Michael Donohue was the investigator from the probation department who prepared the last presentence report. I had him in chambers, I pointed out that inaccuracy. There was also a question as far as AWOL from the service and how he was actually terminated from the service. Then there was the question of his employment.
"We are here for a hearing today to determine the factualness of those allegations. Swear Mr. Donohue." (Emphasis added.)
Defendant contends that the emphasized section above indicates an ex parte communication between the presentence investigator and the trial court which denied him effective assistance of counsel at a critical stage in the criminal proceedings.
In People v Black, 103 Mich App 109, 115; 302 NW2d 612 (1981), this Court stated:
"Whether the trial judge actually received information not contained in the presentence report is irrelevant *520 in our opinion. Sentencing is a critical stage in a criminal proceeding at which a defendant is entitled to assistance of counsel. Where the trial court has communicated with the probation officer ex parte, we must presume that this right has been denied." (Citations omitted.)
This writer concurred in Black and interprets it to mean that, when a trial court holds an ex parte conversation with a presentence investigator, there is a rebuttable presumption of prejudice to defendant that, if not rebutted, requires reversal.
The trial court in Black spoke with the presentence investigator on two separate occasions regarding the presentence report's recommendation for delayed sentencing. Following a telephone conversation between the trial court and the investigator, they met in chambers at which time the presentence report was discussed. Both conversations were initiated by the court and were not, as is true in this case, the result of allegations of error in the presentence report made by the defendant.
The trial court in this case, after the defendant pointed out specific errors in the presentence report, contacted the presentence investigator. Their conversation did not delve into sentence recommendations but was limited to pointing out the inaccuracies. The presentence investigator, in open court, explained the alleged inaccuracies. The facts of this case rebut the presumption of prejudice, therefore, reversal is not required on this issue.
Defendant's conviction for armed robbery is reversed and the conviction for attempted receiving or concealing stolen property over the value of $100 is affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585633/ | 508 So.2d 275 (1987)
Ex Parte TEMPORARY PLACEMENT SERVICES.
(Re Ruby MALONE v. TEMPORARY PLACEMENT SERVICES and Rudy's Farm Co., a division of Sara Lee Corporation).
Civ. 5841.
Court of Civil Appeals of Alabama.
May 6, 1987.
A. Stewart O'Bannon, Jr., of O'Bannon & O'Bannon, Florence, for petitioner.
No brief for respondent.
HOLMES, Judge.
This cause is before this court on the petition of Temporary Placement Services (TPS) for a writ of mandamus to review the denial of its motion to dismiss a workmen's compensation suit against it.
The employee filed suit in the Circuit Court of Colbert County, seeking workmen's compensation benefits. TPS, the employer, filed a motion to dismiss the suit on the ground that the suit had not been timely filed under Ala. Code (1975), § 25-5-80. The trial court denied the motion, and TPS now requests this court by way of mandamus to require the trial court to dismiss the suit.
A writ of mandamus is an extraordinary remedy which should be granted only *276 where there has been a clear showing that the trial court abused its discretion and exercised it arbitrarily or capriciously. Ex parte Rollins, 495 So.2d 636 (Ala.1986); Ex parte Thompson, 474 So.2d 1091 (Ala. 1985); Ross v. Luton, 456 So.2d 249 (Ala. 1984).
After much consideration, this court is unable to conclusively determine that mandamus is the proper vehicle for obtaining review of the denial of TPS's motion to dismiss.
Our research has revealed no Alabama case in which mandamus was used to review the grant or denial of a motion to dismiss on grounds of the running of the statute of limitations, and, quite frankly, this court is reluctant to initiate such a review by mandamus. Put another way, from an institutional point of view, appeal would appear to be the more appropriate method of review.
For this court to issue the writ, there must be credible allegations which are ironclad in nature, showing that the trial judge is bound by law to do what the petitioner requests. Segars v. Segars, 333 So.2d 155 (Ala.Civ.App.1976). Among other things, the petitioner must show a clear, legal right to the order sought, as well as a lack of another adequate remedy. Thompson, 474 So.2d 1091; Ross, 456 So.2d 249.
It does not appear to this court that TPS has shown a clear, legal right to the relief sought. TPS relies on the former one-year statute of limitations of Ala. Code (1975), § 25-5-80. Effective February 1, 1985, § 25-5-80 was amended to extend the statute of limitations from one to two years. There is a serious question to this court whether the old one-year statute of limitations or the new two-year statute applies to the employee's suit. In particular, we note the fact that section 14 of Act 85-41, the act amending the statute of limitations, appears to have been inexplicably deleted from the statute as codified.
Mandamus is not a substitute for appeal. Ex parte Newco Manufacturing Co., 481 So.2d 867 (Ala.1985); Ross, 456 So.2d 249. There is no question that, in this instance the denial of TPS's motion to dismiss may, if appropriate, be reviewed by this court on appeal.
The writ is denied.
WRIT DENIED.
BRADLEY, P.J., and INGRAM, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585647/ | 33 So.3d 1249 (2010)
Steve PALMER
v.
Larry G. BROWNING.
2080522.
Court of Civil Appeals of Alabama.
September 11, 2009.
Rehearing Denied October 9, 2009.
John Mark Christensen, Andalusia, for appellant.
Timothy B. Loggins of The Loggins Firm, LLC, Opp, for appellee.
THOMPSON, Presiding Judge.
This is the second time these parties have been before this court. In Browning v. Palmer, 4 So.3d 524, 525 (Ala.Civ.App. 2008), this court explained the procedural history of the litigation as follows:
"On February 2, 2005, [Larry G.] Browning filed a complaint in the Covington Circuit Court seeking to set aside the December 1, 2003, sheriff's sale of his house and approximately 12.5 acres of real property (`the property') to [Steve] Palmer. Browning also sought to quiet title to the property. Palmer answered the complaint, and in August 2005 he added a counterclaim for ejectment. In lieu of a trial, the parties stipulated to the authenticity of numerous documents and submitted stipulated facts to the circuit court.
"On December 20, 2006, the circuit court entered a judgment for Palmer on Browning's claims. The circuit court also entered a judgment for Palmer on his counterclaim for ejectment, ordered *1250 that Browning be ejected from the property, and ordered Browning to pay Palmer `the reasonable rental value of the property from December 1, 2003, in the amount of $14,400.' Browning filed a postjudgment motion under Rule 59, Ala. R. Civ. P. The circuit court denied that motion on April 6, 2007. Browning filed a timely notice of appeal to this court on May 14, 2007. This court transferred the case to our supreme court due to lack of subject-matter jurisdiction; the case was then transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975."
After considering the appeal, this court reversed the judgment in favor of Palmer on Browning's claims, holding that although the one-year statute of limitations for setting aside a sale under the redemption statute codified at § 6-5-248, Ala. Code 1975, had expired before Browning sought to set aside the sheriff's sale, the facts of the case warranted the application of § 6-9-147, Ala.Code 1975, which allows a court to set aside a judicial sale when it is satisfied that the sale was "`infected with fraud, oppression, irregularity, or error to the injury of either party.'" Browning v. Palmer, 4 So.3d at 527 (quoting § 6-9-147). This court also reversed the judgment in favor of Palmer on his counterclaim. Browning v. Palmer, 4 So.3d at 530. Our supreme court denied Palmer's petition for a writ of certiorari, and on March 21, 2008, this court issued its certificate of judgment in Browning v. Palmer, supra.
Thereafter, Browning moved the circuit court to enter a judgment in compliance with this court's opinion in Browning v. Palmer, supra. On November 5, 2008, the circuit court entered a detailed judgment in which it declared the sheriff's sale and the sheriff's deed void, vested title of the property in Browning, and set aside its judgment in favor of Palmer on the counterclaim.
On November 25, 2008, Palmer filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. In his postjudgment motion, Palmer, pursuant to the redemption statute codified at § 6-5-248 or under equitable principles, sought to recover from Browning approximately $3,000, which represented court costs and certain amounts Palmer claimed to have expended on the property at issue. On December 5, 2008, Browning filed a response opposing Palmer's postjudgment motion.
The circuit court, on December 12, 2008, issued the following order:
"Upon the order of the Alabama Court of Civil Appeals, it is hereby ordered as follows:
"(1) The December 1, 2003, Sheriff's Sale in this case is hereby set aside.
"(2) The prior judgment in this cause in favor of Steve Palmer on his counterclaim against Larry G. Browning is hereby withdrawn and judgment on said counterclaim is hereby entered in favor of Larry G. Browning and against Steve Palmer."
On March 9, 2009, Palmer filed a notice of appeal to this court. This court transferred the appeal to the Supreme Court of Alabama for lack of appellate jurisdiction. The appeal was transferred back to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.
As an initial matter, we must consider whether the appeal was timely filed and, accordingly, whether this court has jurisdiction to consider the appeal. See Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App. 1985) ("The timely filing of a notice of appeal is a jurisdictional act."). The circuit court entered a judgment in compliance with this court's opinion in Browning *1251 v. Palmer, supra, on November 5, 2008. On November 25, 2008, within the 30 days allowed by Rule 59, Ala. R. Civ. P., Palmer filed a postjudgment motion. Thereafter, the trial court entered its December 12, 2008, order; that order does not specifically reference the postjudgment motion.
In his statement of jurisdiction contained in his brief on appeal, Palmer contends that the circuit court did not rule on his November 25, 2008, postjudgment motion. Palmer asserts that in entering the December 12, 2008, order, the circuit court "apparently forgot" that it had entered the earlier, November 5, 2008, order, and he asserts that the December 12, 2008, order had no effect. In his statement of jurisdiction submitted to this court, Browning states that he had no explanation for the December 12, 2008, order, "unless it is considered a denial of Palmer's [postjudgment] motion."
Palmer has taken the position that the circuit court's December 12, 2008, order was not entered in response to his November 25, 2008, postjudgment motion and that, instead, the November 25, 2008, postjudgment motion was denied by operation of law on February 23, 2009, 90 days after the filing of the postjudgment motion. See Rule 59.1, Ala. R. Civ. P. ("No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days."); and Robbins v. Robbins, 945 So.2d 1070, 1072 (Ala.Civ.App.2006) (A postjudgment motion was deemed denied by operation of law when the circuit court failed to rule on it within the 90 days allowed by Rule 59.1, Ala. R. Civ. P.). According to Palmer, he had 42 days from February 23, 2009, or until April 6, 2009, to file a timely notice of appeal. Rule 4(a)(1), Ala. R.App. P.; Robbins v. Robbins, 945 So.2d at 1072 ("The former husband had 42 days from the date that his postjudgment motion was denied by operation of law to file a notice of appeal."). Thus, Palmer contends that his March 9, 2009, notice of appeal, was timely filed.
However, we have carefully considered the matter, and we can find no explanation for the circuit court's entry of the December 12, 2008, order other than that it was entered in response to Palmer's postjudgment motion. The December 12, 2008, order contained, albeit in a more concise format, the same ruling as that set forth in the original, November 5, 2008, judgment. The December 12, 2008, order was entered after Palmer had filed his November 25, 2008, postjudgment motion and after Browning had filed his December 5, 2008, response opposing the postjudgment motion. Both of the trial court's rulings are contained in written orders in the record, and both are entered, in detail, on the State Judicial Information System ("SJIS").[1] Thus, we cannot agree with *1252 Palmer that the circuit court "apparently forgot" that it had entered the November 5, 2008, judgment.
The December 12, 2008, order did not grant the relief requested by Palmer in his postjudgment motion; therefore, it constituted a denial of that motion. In order to invoke appellate jurisdiction, Palmer was required to file his notice of appeal within 42 days of the entry of the December 12, 2008, order. Rule 4(a)(1), Ala. R.App. P.; Robbins v. Robbins, supra. The last date upon which Palmer could have timely appealed was January 23, 2009. Palmer filed his notice of appeal on March 9, 2009, and, therefore, the appeal is untimely. "[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived." Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006). Because Palmer's appeal was untimely, this court has no jurisdiction, and the appeal must be dismissed. Rule 2(a)(1), Ala. R.App. P.
Browning's request for an award of a $1,500 attorney fee is denied.
APPEAL DISMISSED.
PITTMAN, THOMAS, and MOORE, JJ., concur.
BRYAN, J., dissents, with writing.
BRYAN, Judge, dissenting.
I disagree with the main opinion's conclusion that the trial court's December 12, 2008, order constituted a denial of Steve Palmer's postjudgment motion, because, in my opinion, that order did not indicate an intent to adjudicate Palmer's postjudgment motion. See Rule 58(b), Ala. R. Civ. P. Therefore, in my opinion, the appeal was timely filed, and we should reach the merits of the appeal. Consequently, I respectfully dissent.
NOTES
[1] The November 5, 2008, entry on the SJIS reads:
"ORDER; The Sheriff's sale held 12/1/03, whereby the Deft, Steve Palmer, purchased the Pltf, Larry G. Browning's, real estate is void, set aside and held for naught. The deed executed by the Sheriff of Covington County, Alabama, Real Property Book 2003, Page 25706, is void, set aside and held for naught and that title to said real estate is divested out of the Deft, Steve Palmer, and vested in the Pltf, Larry G. Browning. The circuit clerk shall within 30 days from the Date hereof file a certified copy of this judgment in the Office of the Judge or Probate of Covington County, Alabama, and the Judge of Probate shall index said judgment under Steve Palmer as grantor and Larry G. Browning as grantee with costs taxed to the Deft, Steve Palmer. The judgment on the counterclaim in favor of the Deft, Steve Palmer, is reversed and rendered for the Pltf, Larry G. Browning. The costs are taxed against the Deft, Steve Palmer, as provided by Rule 35, Alabama Rules of Appellate Procedure, for which let execution issue."
The SJIS entry for the December 12, 2008, order is an exact copy of the written order, which is quoted earlier in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585672/ | 321 N.W.2d 64 (1982)
212 Neb. 16
ATLAS STEEL & WIRE CORPORATION, a corporation, Appellant,
v.
L & M CONSTRUCTION CHEMICALS, INC., a corporation, et al., Appellees.
No. 44178.
Supreme Court of Nebraska.
June 25, 1982.
*65 Douglas E. Quinn of Thompson, Crounse & Pieper, Omaha, for appellant.
William M. Homan, Omaha, for appellee L & M.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
HASTINGS, Justice.
This is an action brought by the plaintiff, Atlas Steel & Wire Corporation, to recover an amount allegedly due under an oral contract for the purchase of goods entered into between Atlas and Jack Bolin. L & M Construction Chemicals, Inc., was named as a defendant in the action, along with Bolin, Lawrence E. Schwietz, and J & L Supply & Steel Company. A jury trial was waived and a trial to the court resulted in a judgment in favor of L & M and against the plaintiff Atlas. It is this judgment only which forms the basis of the appeal by Atlas. The only issue facing the court is whether sufficient evidence existed to hold L & M liable to Atlas for payments due under the contract. We affirm.
J & L Supply was a business entity formed by Bolin and Schwietz under what was loosely called an "oral agreement to make a partnership." Its office was located at 1219 South Gallatin Street, Jackson, Mississippi. According to Schwietz, under the terms of their "oral partnership" Bolin was not empowered to purchase goods on credit without Schwietz's prior approval and he, Schwietz, had not given such approval for the purchase of the goods which formed the subject matter of this lawsuit.
Schwietz was the president of L & M Construction Chemicals, Inc., an Omaha, Nebraska, corporation with its principal and only place of business in Omaha. According to Schwietz, Bolin has no connection with L & M, and L & M had no connection with J & L.
According to the testimony of Alfred Theriot, an agent of Atlas, during January of 1979 he received, in his capacity as Atlas' agent, an order from Bolin for certain goods on a J & L Supply & Steel Company purchase order form. Theriot claimed that he then informed Bolin that the goods would not be sold on credit due to J & L's lack of a credit history. He went on to say that Bolin responded by telling him to contact Schwietz at L & M in Omaha. Upon making such contact and informing Schwietz that the dollar amount of the order was approximately $9,500, Theriot claimed that Schwietz instructed him to ship the goods to Bolin and invoice L & M. As a result of that conversation, Theriot said, the goods were shipped.
The record reveals that in April of 1979, a check for $1,000 was received by Atlas in the mail, contained in a J & L letterhead envelope with the name L & M written over the top of the printing and mailed from Omaha. Mr. Theriot did not say who signed the check or what name was contained on the check itself. Theriot did go on to say that he wrote to Schwietz inquiring about the balance of the account, but received no response. Two phone calls were made to Schwietz by Theriot, according to the testimony of the latter, the first without response, and being told on the second that Schwietz would get back to him. He never did.
According to the testimony of Mr. Schwietz, he recalled receiving only one demand letter from Atlas, which letter he was sure would have been forwarded to Bolin. He also recalled receiving a telephone call from Mr. Theriot in May regarding the sale of these goods, but he advised Theriot at that time that the partnership had been dissolved and that Bolin had assumed full responsibility for all of J & L's merchandise. Mr. Schwietz categorically denied ever talking over the telephone to Mr. Theriot, other than the one call in May, and in corroboration of this statement, he submitted *66 his telephone log which he alleged contained all calls received by him since the first of January of 1979, with the caller's name and an explanation of the subject of the call noted on the log. No other call from Theriot appeared on that log. Mr. Schwietz did admit to having issued the $1,000 check to Atlas on J & L Supply's Jackson, Mississippi, checking account, but claimed that he did so only because Bolin had informed him that he, Bolin, was in a position to sell the merchandise and that he had funds to cover the amount paid.
It should be apparent from this recitation of the record that there was a direct dispute between the only two witnesses who testified as to whether or not there was ever an agreement that L & M was to purchase or would furnish credit for the purchase of the merchandise with which we are here concerned.
As stated in Aurora Cooperative Elevator Co. v. Larson, 204 Neb. 755, 758, 285 N.W.2d 498, 500-01 (1979): "The judgment of a trial court in an action at law where a jury has been waived has the effect of a jury verdict and it will not be set aside on appeal unless clearly wrong. Where trial is to the court, a general finding that the judgment should be for a certain party warrants the conclusion that the trial court found in his favor on all issuable facts....
"In determining whether the evidence supports the findings of the trial court in an action at law where a jury has been waived, the evidence must be considered in the light most favorable to the successful party, all conflicts must be resolved in his favor, and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence."
On the basis of this record, we cannot say that the findings and judgment of the District Court were clearly wrong. Accordingly, we affirm its judgment in this action.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304547/ | CASSELL, Sp. J.
J. C. Smith, administrator of the estate of W. P. Smith, deceased, filed a bill in the Chancery Court of Greene County against E. W. Williams and W. C. AYilliams, residents of Loudon County, and C. F. Williams, temporarily in Greene County, to collect two promissory notes — one for three thousand ($3000) dollars dated January 5, 1926, due six months after date, providing interest and attorneys’ fees, and payable to W. P. Smith and signed by W. C. Williams and E. W. AYilliams — a second note for two thousand five hundred ($2,500) dollars, dated November 1, 1928, due twelve months after date, said note being payable to J. C. Smith, admr., and providing for attorneys’ fees and cost of collection, and signed by E. W. Williams as principal and C. F. Williams as endorser. After the bill was filed it was amended so as to allege that the twenty - five hundred ($2500) dollar note sued on represented one-half of a five thousand ($5000) dollar note that had originally been executed by E. W. Williams, J. R. AVilliams, and C. F. Williams. The amendment stated further that if for any reason suit could not be maintained on the twenty-five hundred ($2500) dollar note itself then complainant should be entitled to recover on the consideration of so much of the original note as was not paid.
The defendants E. W. AVilliams and W. C. Williams in their answer admit that they owe a balance on the first note of three thousand ($3000) dollars but as to the liability of E. W. Williams, principal, and C. F. AVilliams, endorser, on the twenty-five hundred ($2500) dollar note a plea of non est factum is filed and the defendant E. W. Williams says he did not sign this note and C. F. Williams says he did not endorse this note. The defendants say further, however, that E. W. AYilliams executed to complainant, J. C. Smith, a note for twenty-five hundred ($2500) dollars payable twelve months after date with interest from maturity at the First National Bank of Lenoir City. C. W. Williams admits that he signed the note on the back as endorser for E. W. AYilliams and they both deny that they endorsed any other note to J. C. Smith carrying any other provisions. They say that said note has heretofore been sued on in Chancery Court at Maryville and E. W. Williams says he paid interest on the note at the rate of eight per cent per annum to November 1, 1930, which amounted to two hundred ($200) dollars, and that this was fifty ($50) dollars in excess of the legal rate.
E. W. Williams as principal and C. F. Williams as endorser further say that after they executed said note that the same was changed by striking out the words “First National Bank of Lenoir City” *615and that it was further altered by the insertion of the abbreviation “admr” after the words “J. C. Smith” also that the words “after maturity” were stricken, out and words “after date” inserted so as to make the note bear interest from date instead of from maturity.
The answer was sworn to and quite a volume of proof was taken in the case. The lower court proceeded then to render judgment on the first note for a balance due of eight hundred and eight dollars and eight cents ($808.08), and this liability is not denied and, as we understand it, no appeal was taken from that portion of the decree. Judgment was also rendered on the twenty-five hundred dollar ($2500) note for the full amount of the principal, interest, and attorney’s fees, totalling three thousand and ninety-nine dollars and twenty-five cents ($3099.25) and costs. Appeal was taken from the decree but C. F. Williams, endorser, is the only party who perfected his appeal and he now assigns errors which are as follows:
I.
“The learned Chancellor erred in holding the defendant C. F. Williams liable as endorser on the $2500 note sued on in this cause.
II.
‘ ‘ The learned Chancellor erred in holding that the $2500 note sued on in this cause, executed by E. W. Williams and endorsed by C. F. Williams was not materially altered after the same was signed by E. W. Williams and endorsed by C. F. Williams and delivered to the said J. C. Smith.
III.
“The learned Chancellor erred in holding that the abbreviation ‘Admr’ meaning ‘Administrator,’ placed in said note by said J. C. Smith was not a material alteration of said note and that it was added in compliance with an agreement between the payee J. C. Smith and the appellant C. F. Williams, endorser on said note.
IY.
“The learned Chancellor erred in holding in effect that the endorser C. F. Williams on said $2500 note was bound by the contract between the said E. W. Williams, principal on said note, and the payee, J. C. Smith.”
A number of depositions were taken on behalf of the complainant and about the same number on behalf of the respondent. J. C. Smith, the payee of the note, testified to the effect that the $2500 note sued on is in the same condition except that the word “admr” was added after he received the note from the maker E. W. Williams and that it was understood at all times that the money was the money of the estate of W. P. Smith, deceased; this last element is not seriously denied by any of the defendant’s witnesses and if it was so denied it would add to the liability of the parties. The testimony of the attorney, Mr. Parvin, who received the note for collection from the *616administrator, is that there was no change made in the note after he received it for collection. The character of Mr. Smith, the administrator, is said to be good by prominent citizens of his community who certify that his oath would be taken in any court of justice.
The testimony of E. W. Williams appears in the record and he testified that he knew that the note was to be paid at his home in place of Lenoir City and if the note provided a place of payment at Lenoir City it was a mistake on the part of himself and also the maker of the note, the administrator, Mr. Smith.
C. P. Williams, indorser, states that he knew that J. C. Smith lived at Limestone and that if he had to pay the note it would be paid at Limestone and that he did not expect to pay it at Lenoir City.
C. R. Williams, the endorser, is now really the only party to the suit as he is the only one who has perfected an appeal and the only solvent one interested in this $2500 note judgment upon which has been appealed.
The testimony of these gentlemen as stated above is likewise sustained by reputable citizens of Blount County where they live.
The Chancellor in his holding in this case finds several facts in his opinion which are as follows:
That the note of $2500 sued upon in this case represents one-half of a $5,000 note which was payable to W. P. Smith, deceased, of whose estate the complainant, J. C. Smith is administrator; that at the time said $2500 note was executed, a note was prepared by attorneys for complainant in the sum of $2500, payable to J. O. Smith, Administrator, at Limestone, Tennessee, bearing interest from date; that the defendant, E. W. Williams carried this note away for the purpose of procuring the endorsement of O. P. Williams, but in some way this note was mis-placed and the note now sued upon was prepared by the defendant, E. W. Williams, and was filled in on a typewriter by him with the intention and purpose that it should carry the same terms and provisions of the first note which was prepared; that the defendant, E. W. Williams intended to make the note payable to J. C. Smith, Administrator at Limestone, Tennessee, and wrote these words appearing in the face of the note in typewriting, “J. C. Smith, Limestone, Tennessee,” for that purpose, and also intended to make the note bear interest from date, and wrote the words, "interest from date,” for that purpose. This note was then signed by him as maker and the defendant, C. P. Williams as endorser. That when said note came into the hands of the complainant, J. C. Smith, that it contained all the provisions now in it, with the exception of the word, "administrator,” which was inserted by the complainant, J. C. Smith.
The Court further finds that the defendants, E. W. Williams and C. P. Williams, and the complainant, John C. Smith, knew that this *617note represented funds belonging to the estate of W. P. Smith, deceased, and intended and agreed that the note should be payable to John C. Smith, Administrator, and that complainant inserted the words, ‘ ‘ Administrator ’ ’ appearing in the note after his name for the purpose of making it conform to such agreement, without any fraudulent intent or purpose.
The Court further finds and is of the opinion that the words “interest from date,” appearing in typewriting and “Limestone, Tennessee, ’ ’ as the place of payment, in typewriting were in conflict with printed portions of the note, and that the typewritten words would prevail over the printed portion appearing in the face of the note which is in conflict with such typewritten portions.”
A careful examination of the $2500 note itself does not show on its face that the typewritten part of said note which, under our law, must prevail over the printed part, has been changed in any way whatever and under our decisions the typewritten part prevails and establishes the contentions of the complainant. In ease of any inconsistency between the written and printed provisions of a contract the written portions must prevail. See Fireman’s Fund Insurance Co. v. Globe Nav. Co., 236 Fed. Rep., 618; 2 Elliott on Contracts, p. 805.
If it should be conceded that the words “after maturity” had been stricken out by the payee after he received the note, this possibly would have been a material change in one sense, yet this would not change or materially alter the liability of the parties inasmuch as the note contained the provision “interest from date” in typing. If the printed words “after maturity” had not been stricken out the typewritten part “interest from date” would still be in the note and prevail over the printed part “after maturity.” Again, if the printed part “First National Bank of Lenoir City” had not been stricken out the note would have been payable at Lenoir City because the note was dated at Lenoir City and in the absence of a place of payment being specifically set out in the note the place of payment would be the place where the note was executed, to-wit, Lenoir City, Tennessee. The changes that are legally material must be those which effect the liability of the parties. Steele v. H. H. Galbraith, 5 Tenn. App., 498. In our opinion the two changes, even if conceded to have been made by the payee, which is denied, impose no additional burden or liability on the maker or indorser of the note and we do not believe that anyone was injured.
It is true that under our law the burden of proof is upon the holder of a negotiable instrument to show that an alteration was immaterial, that it was consented to, or made without fraudulent intention. Milsaps v. Foster, 163 Tenn., 308, 43 S. W. (2d), 197.
We think in the present case that the complainant has carried the burden of the proof and has shown that no material change was *618made, but if made, that no fraudulent intent is shown. After a careful reading of the record and after considering all of the testimony that is competent and material, we are of the opinion that the Chancellor’s finding of fact is correct and that the decree should be affirmed; the costs of the appeal will be paid by the appellant, C. F. Williams.
Portrum and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
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