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https://www.courtlistener.com/api/rest/v3/opinions/1585674/ | 321 N.W.2d 436 (1982)
212 Neb. 77
Alan J. BENDER et al., Appellees,
v.
Julia JAMES, Appellant,
Stones, Inc., A Nebraska corporation, et al., Appellees.
No. 44228.
Supreme Court of Nebraska.
July 2, 1982.
*438 Stephen C. Hansen of Luckey, Sipple & Hansen, Columbus, for appellant.
Robert J. Bothe of Tessendorf, Milbourn, Fehringer & Bothe, P. C., Columbus, for appellees Bender.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
HASTINGS, Justice.
Plaintiffs brought this action in the District Court seeking to quiet title to a strip of farmland included within their record ownership, but which the defendant Julia James claimed by adverse possession. From an order granting plaintiff's motion for summary judgment and granting the relief requested in the petition, the defendant has appealed. We affirm.
The plaintiffs, Alan J., Larry J., and Richard J. Bender, are the record title owners of the south half of the southeast quarter and the west half of the northwest quarter of the southeast quarter, all in Section 20, Township 19 North, Range 3 West of the 6th P.M., Platte County, Nebraska. They acquired title in March of 1979 by warranty deed from Ruth Bearberg, a single person and now deceased. Ruth was a daughter and legal heir of John James, deceased. The defendant Julia James, a widow, is the record titleholder of the east half of the northwest quarter of the southeast quarter and the northeast quarter of the southeast quarter, also in Section 20, Township 19 North, Range 3 West of the 6th P.M., Platte County, Nebraska. In other words, the northern boundary of the plaintiffs' land and the southern boundary of the defendant's land form the same line. Julia's husband was Harold James, a son and legal heir of John James and, of course, a brother of Ruth Bearberg. Harold died in August of 1971. The defendant Stones, Inc., was the tenant of both Ruth Bearberg and Julia James between 1971 and 1979, has no interest in this litigation, and will not be referred to again. Therefore, when we speak of the defendant, we are referring to Julia James.
On a motion for summary judgment, the question which must be decided is whether or not there is a genuine issue as to any material fact, and not how that issue is to be decided. Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982).
The record made upon which the motion for summary judgment was granted consists of an abstract of title; tax receipts showing that the parties, or their predecessors *439 in title, had been paying the real estate taxes on the property as their ownership appeared of record; a plat of a survey; the pleadings; and the deposition of Julia James.
As suggested earlier, John James had been the owner of the entire southeast quarter, the property with which we are here concerned. He died on April 16, 1936, and by his will left his property to his various children, including Ruth Bearberg and Harold James. These children executed various deeds between and among themselves, rearranging title to the various parcels of land, so that the title to the two tracts which are the subject of this litigation became vested as described above.
According to the testimony of Mrs. James, in 1933 she and her husband Harold moved onto the farm owned by the father, John James, and farmed the entire quarter section as tenants of John. After John's death, as she testified, Harold continued to farm the quarter section, but now as owner of a portion of it and as the tenant of his sister Ruth as to the balance. This arrangement continued, apparently, until Harold's death in 1971.
It was Mrs. James' testimony that her husband farmed his sister Ruth's land on a typical sharecrop rental basis. She did not know if Ruth ever went over the crops with her husband Harold, but insisted that she never made any complaints. Mrs. James also said that the crop rows on the land that belonged to Ruth Bearberg were always planted north and south, and that on their own land, east and west. The record does not disclose whether or not that same practice had been followed when Harold James farmed the entire quarter section as a tenant of his father. However, it seems apparent that it is the line formed by this change in direction of crop rows that the defendant insists forms the boundary between her land and that of the plaintiffs. This means that the defendant is claiming 3.1 acres consisting of a strip of land ranging in width from 63 feet to 75 feet along the extreme northern edge of the plaintiff's land as it is described of record.
The only evidence of any notice to Ruth Bearberg of a hostile claim against her property by her brother Harold was furnished by the defendant's testimony. She stated that her sister-in-law Ruth used to come out to the farm from Chicago once a year, but in "the last few years she didn't come out." Ruth was never told that there was a problem with the property line because Harold and Julia James always thought that the now disputed strip belonged to them. However, Mrs. James did admit that Ruth was supposed to have owned 100 acres and she and her husband Harold 60 acres, and that the crops were always split on that basis. According to Mrs. James' testimony, her husband and his sister Ruth always got along very well, "she was always satisfied, never a complaint," and she always accepted whatever Harold said. As she stated, her husband would divide the crops according to the percentages by means of his computed estimates, would sell his sister Ruth's share, and send her a check for the proceeds.
The defendant's claim is based both on adverse possession and acquiescence on the part of plaintiffs' predecessor in title, Ruth Bearberg. Her first contention can be disposed of rather summarily. As stated in Carson v. Broady, 56 Neb. 648, 651, 77 N.W. 80, 81 (1898): "It is an ancient and well settled rule of law that a tenant cannot, while occupying the premises, deny his landlord's title." More recently, we have said that if possession of real estate is entered upon by one as a tenant under an agreement with the owner, the occupant cannot assert ownership by adverse possession until he first surrenders possession, or the tenant, by some unequivocal act, notifies the landlord that he no longer holds under the agreement made. Jackson v. Eichenberger, 189 Neb. 777, 205 N.W.2d 349 (1973). Defendant's claim of adverse possession is without merit.
There is no genuine issue of fact relating to Harold James' possession under a lease agreement. The question then becomes one of whether or not the running of the crop rows in different directions was an *440 unequivocal act on the part of Harold sufficient to constitute notice to his landlord Ruth that he was no longer holding the disputed strip under the lease agreement. The record does not disclose when this method of planting was commenced. If it was first established while Harold was a tenant of his father, that fact is completely immaterial. In order to amount to notice as to Ruth, the record must disclose that at some time after she became the owner this method of planting was commenced, and, therefore, she was made aware of an adverse claim on the part of her brother. The plaintiffs' evidence establishes undisputed record title in themselves, and therefore a prima facie showing for summary judgment has been established. The defendant has raised as an affirmative defense the claim of adverse possession. The defendant has failed to offer competent evidence that there is a genuine issue as to that fact. Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982). Defendant's claim of adverse possession is without merit.
Regarding the defendant's claim based upon acquiescence, that doctrine involves more than a mere establishment of a line by one party, and the taking of possession by him. "`It involves the idea that the other [landlord], with knowledge of the line so established and the possession taken, assents thereto, and this may be shown by his conduct, by his words, or even by his silence. There must, however, be something in the record to show that the party, charged with acquiescence, consented to the act of the other in establishing the line and assuming possession. Acquiescence means a consent to the conditions, and involves knowledge of the conditions.... Acquiescence involves the idea of notice or knowledge of conditions, and the evidence must disclose that with such notice and knowledge he did something that indicated an assent to such conditions and an acquiescence therein.'" (Emphasis supplied.) Hakanson v. Manders, 158 Neb. 392, 397, 63 N.W.2d 436, 439 (1954). Undisputed evidence that Ruth Bearberg was never told that there was a problem with the property line, that she owned a full 100 acres and was paid rental on that basis, and that she always got along with her brother and always accepted whatever Harold said hardly demonstrates notice of the establishment of a boundary line prejudicial to her interests, and an acquiescence thereto.
The judgment of the District Court in granting summary judgment was correct and is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918917/ | 106 B.R. 628 (1989)
In re CLEANMASTER INDUSTRIES, INC., a Nevada corporation, Debtor.
S.G. WILSON COMPANY, INC., dba Program Wholesale Ind., Appellant,
v.
CLEANMASTER INDUSTRIES, INC., a Nevada corporation, Appellee.
BAP No. CC-88-1537-JVMo, Bankruptcy No. LA-85-11278-CA, Adv. No. LA 88-00240-CA.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted on February 15, 1989.
Decided October 25, 1989.
*629 Thomas E. Kent, Robinson, Diamant, Brill & Klausner, Los Angeles, Cal., for appellant.
Richard M. Moneymaker, Moneymaker & Kelley, Los Angeles, Cal., for appellee.
Before JONES, VOLINN and MOOREMAN, Bankruptcy Judges.
JONES, Bankruptcy Judge.
Appellant, S.G. Wilson Company, Inc. dba Program Wholesale Ind., appeals a bankruptcy court order denying its Motion for Reconsideration of an Order Disallowing Appellant's Administrative Priority Claims. Program argues that the court below erred in denying its motion as the record is devoid of competent evidence. WE AFFIRM.
FACTS
Cleanmaster Industries, Inc. ("Debtor") and S.G. Wilson Company, Inc., dba Program Wholesale Ind. ("Program") are both retail sellers of janitorial supplies. However, Program is classified as a "super jobber" because it purchases its inventory in large volume at a discounted price and resells to other entities. Under a written agreement, the Debtor occupied a portion of Program's premises, and Program supplied the Debtor with inventory. The agreement specifically provided that the price of inventory sold to the Debtor would be equal to or less than the cost of such items if the Debtor purchased them directly.
The Debtor filed its Chapter 11 petition on August 13, 1985. Program was not listed on the Debtor's bankruptcy schedules. On September 5, 1986, Program filed a Proof of Claim, designated as an administrative claim, for $239,575.98. In addition, Program filed an administrative claim as an assignee on behalf of Enterprise Sales Co., Inc. for $9,516.17. Both claims were amended on February 12, 1987. The Program claim was reduced to $239,503.98 and the Enterprise claim was reduced to $6,976.20.
Counsel for the Debtor subsequently filed an interim fee application. Program filed a written objection to the payment of this administrative claim unless its administrative claims were also paid. In response, the Debtor alleged that the sums stated in Program's claims were incorrect because Program failed to properly credit the Debtor's account and because the prices Program charged the Debtor were grossly inflated. The parties entered into a court approved stipulation which allowed Program to amend its claims until May 6, 1988, and allowed the Debtor to file and serve objections until June 5, 1988. The stipulation also provided that all objections to the claims were to be deemed waived should the Debtor fail to timely file and serve its objection to one or both of the administrative claims. Pursuant to the stipulation, Program recomputed the $239,503.98 claim and filed an amendment on May 5, 1988 which reduced the claim to $68,397.20. The Enterprise claim was not amended.
On June 3, 1987, the Debtor filed an objection to the $68,397.20 claim. No objection was filed against the Enterprise claim. Program then filed an application to compel payment of the Enterprise claim on September 21, 1987, on grounds that as no specific objection was filed against it, the Debtor must comply with the stipulation and pay the claim. The Debtor responded that the stipulation merely required it to object to newly amended claims, and since the Enterprise claim was not amended the Debtor need not object. The Debtor further argued that its earlier objection (the response to Program's objection to the payment of Debtor's counsel) was still pending. The bankruptcy court denied Program's application and instructed the Debtor to file a second specific objection to the Enterprise claim.
A trial on the Debtor's objections was held on January 7, 1988. The court found that contrary to the terms of the written agreement, Program sold inventory to the Debtor at its "normal selling price and not at the special price" provided in the contract. The court further found that the Debtor was entitled to post-petition credit and that Program grossly overstated its *630 claim. As a result, the court ultimately concluded that the Debtor had overpaid Program approximately $40,905.22. Program's claims were denied in full. Judgment was entered on January 28, 1988 and no appeal was taken.
The Debtor later brought suit against Program to recover any overpayments. Program then filed a motion to reconsider the order disallowing administrative claims. The court subsequently denied Program's motion to reconsider and rendered summary judgment on the Debtor's behalf for $40,905.22 on May 16, 1988. An order granting summary judgment was entered on May 19, 1988. The court determined that its prior Order and Findings of Fact regarding the Debtor's overpayment from the January 28, 1988 hearing were res judicata on all issues affecting the sum found owing to the Debtor by Program.
Subsequently, Program filed an order Denying Motion for Reconsideration of Order Disallowing Administrative Claims and for Order Vacating Findings of Fact. Program's order was entered on June 9, 1988 and this appeal followed.
ISSUE PRESENTED
Whether the bankruptcy court erred in denying Program's Motion for Reconsideration.
STANDARD OF REVIEW
Whether the bankruptcy court erred in denying Program's Motion for Reconsideration is reviewed under the abuse of discretion standard. In re Colley, 814 F.2d 1008 (5th Cir.1987); In re W.F. Hurley, Inc., 612 F.2d 392 (8th Cir.1980).
DISCUSSION
Reconsideration of the disallowance of Program's claim is governed by Bankruptcy Rule 3008 and by 11 U.S.C. § 502(j) of the Bankruptcy Code. Rule 3008 provides that "a party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order." B.R. 3008. According to § 502(j), "a claim that has been allowed or disallowed may be reconsidered for cause." 11 U.S.C. § 502(j) (1989).
In this case, the Motion to Reconsider was filed after the time to appeal had expired. In the situation where the time for appeal has expired, a motion to reconsider should be treated as a motion for relief from judgment under Bankruptcy Rule 9024. In re Aguilar, 861 F.2d 873 (5th Cir.1988). Bankruptcy Rule 9024 provides that Rule 60 of the Fed.R.Civ.P. applies in cases under the Code. Rule 60 sets forth the standards for reconsideration of claims and helps define "cause" under § 502(j). Rule 60 provides that there may be relief from a judgment or order for:
(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rules 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic) misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . . .
Fed.R.Civ.P. 60(b).
Here, Program sought to persuade the bankruptcy court to reconsider the order denying its claim on grounds of newly discovered evidence. However, the main thrust of Program's argument was that the record of the hearing was completely "devoid of any competent evidence" to support the court's findings. In support of its contentions, Program submitted the affidavits of Program's president and Program's counsel. In addition, Program submitted the affidavits of presidents or vice-presidents of three distributors. Generally, these affidavits stated that because Program was a "super jobber," it could purchase products at a reduced rate. Moreover, the affiants declared that they either *631 would not sell products to the Debtor or they would sell products on a C.O.D. basis only. Program submitted these affidavits as evidence that the prices it charged the Debtor were equal to or less than the prices of such items had the Debtor purchased them directly.
On appeal, Program argues that the record below is devoid of competent evidence to establish that the Debtor was overcharged or to substantiate the Debtor's calculations concerning the allocation of post-petition payments or the amount of administrative rent owing to Program. Program's contentions, however, fail to acknowledge that while the order denying a motion for reconsideration is appealable, the underlying judgment is not appealable. In re W.F. Hurley, Inc., 612 F.2d 392 (8th Cir.1980).
As previously noted, the standards for a motion to reconsider, filed after the time for appeal has expired, are enumerated in Fed.R.Civ.P. 60. Pursuant to Rule 60, relief from an order may be granted upon a showing of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) (time for motion for new trials). Fed.R.Civ.P. 60(b)(2). Program seemingly relies upon this subsection as the basis for its motion to reconsider by its characterization of the above referenced affidavits as newly discovered evidence. These documents, which purportedly offer newly discovered evidence, are the only references to the Rule 60 standards justifying relief from an order.
The proffered affidavits merely discuss the issue of the availability of price discounts to the Debtor and whether other distributors would do business with the Debtor. As this evidence was available at the time of the trial, it cannot be said to be new. Moreover, because no offer of proof, or even an explanation, was presented to the trial court as to why the affiants did not testify at the trial, the trial judge was justified in denying the motion. Accordingly, we see no abuse of discretion for failing to consider affidavits of witnesses who could have appeared at the original trial.
Finally, Program argues that the court below erred in concluding that Program was indebted to the Debtor without the Debtor "filing a counterclaim as required under Bankruptcy Rule 3006 [sic: apparently Program is referring to B.R. 3007 entitled Objections to Claims which provides that if an objection to a claim is joined with a demand for relief as specified in Bankruptcy Rule 7001, it becomes an adversary proceeding]." As a result of the court's initial determination that the Debtor had overpaid Program in the sum of $40,905.22, the bankruptcy court later rendered summary judgment in favor of the Debtor in that sum plus interest on May 16, 1988. The above action may be within the purview of B.R. 9024 and ultimately Fed.R. Civ.P. 60(b)(6) which provides for relief from an order for "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6).
Program raises this argument for the first time on appeal. As a general rule, an appellate court will not consider an issue raised for the first time on appeal. See In re Wind Power Systems, Inc., 841 F.2d 288, 290 n. 1 (9th Cir.1988). However, an appellate court may exercise its power and discretion to consider such an issue when it is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987). Whether there was compliance with Bankruptcy Rule 3007 is a question of fact. Moreover, resolution of this issue depends upon the record developed below. Accordingly, we will not exercise our discretion to consider this issue.
CONCLUSION
Program failed to establish, both below and on appeal, the existence of new evidence. Furthermore, Program failed to provide any reasonable justification why the affidavits were not available at the trial. Under these circumstances the trial judge did not abuse his discretion in denying *632 Program's motion to reconsider. Accordingly, the bankruptcy court's denial of Program's motion to reconsider is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918932/ | 912 So.2d 18 (2005)
PIER POINT DEVELOPERS, L.L.C., a Florida limited liability company, Appellant,
v.
Philip R. WHITELAW, Appellee.
No. 4D04-4338.
District Court of Appeal of Florida, Fourth District.
April 27, 2005.
Mark S. Schecter and David M. Adelstein of Schecter Law, P.A., Fort Lauderdale, for appellant.
William E. McGrew, Fort Myers, for appellee.
STEVENSON, J.
Appellant-plaintiff below, Pier Point Developers, L.L.C., challenges a non-final order of the Broward County circuit court transferring venue of this commercial dispute to the Twentieth Judicial Circuit in Lee County. We reverse.
Pier Point is the developer of a condominium project in Broward County, called Oriana at Lauderdale by the Sea. Pier Point's principal place of business is in Broward County. Appellee, Philip Whitelaw, *19 builds scaled display models for real estate projects. Whitelaw's business, Modelmaker.com, is located in Lee County. In February of 2004, the parties entered into a contract for Whitelaw to build a scaled model of the condo project. The contract provided a purchase price of $26,798.75 and included the term "FOB my studio." Whitelaw agreed to build, deliver and set up the model within six weeks. The contract provided that the purchase price included delivery and set-up. Pier Point paid half the purchase price up front and paid another fourth of the purchase price midway through the project. The final payment was due upon delivery.
More than three months after they entered into the contract, Whitelaw delivered the model to Pier Point's place of business in Broward County. Pier Point tendered the payment in Broward County, but upon inspection decided that the model was defective and showed poor workmanship. Pier Point rejected the model, stopped payment on the check for the final payment, and filed suit in Broward County, alleging: (1) breach of contract; (2) negligent misrepresentation; (3) fraudulent inducement; and (4) breach of implied warranty of fitness for a particular purpose.
In response to the complaint, Whitelaw filed a motion to transfer venue to Lee County. As grounds for the change, Whitelaw asserted that he signed the contract in Lee County, he received the plans to construct the model in Lee County, he constructed the model in Lee County, and Pier Point tendered the advance and mid-progress payments in Lee County. Whitelaw argues that the contract did not call for delivery of the model in Broward County, but rather provided for "FOB my studio," which meant that title to the model passed to Pier Point at Whitelaw's studio and risk of loss during delivery was on Pier Point. Pier Point filed an affidavit in opposition to the motion, asserting that the allegations in the complaint were true and that the contract provided that the model would be delivered to Broward County and was discovered defective in Broward County. The trial court granted the motion to change venue, citing only A & M Engineering Plastics, Inc. v. Energy Saving Technology Co., 455 So.2d 1124, 1125 (Fla. 4th DCA 1984).
Venue is governed by Florida Statutes section 47.011, which provides in part that "[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located." The plaintiff has the option of selecting venue as long as the plaintiff's choice is supported by the statute. See Nicholas v. Ross, 721 So.2d 1241, 1242 (Fla. 4th DCA 1998). To change venue, the defendant has the burden of showing that the venue selected by the plaintiff is improper. See Symbol Mattress of Fla., Inc. v. Royal Sleep Prods., Inc., 832 So.2d 233, 235 (Fla. 5th DCA 2002).
Generally, for breach of contract actions, venue is proper where the breach occurred. See Williams v. Goldsmith, 619 So.2d 330, 332 (Fla. 3d DCA 1993). When the breach involves delivery of defective or nonconforming goods, venue is proper where the goods were delivered. See Forms & Surfaces, Inc. v. Welbro Constructors, Inc., 627 So.2d 594, 595 (Fla. 5th DCA 1993).
In relying on A & M Engineering, the trial court apparently agreed with Whitelaw's argument that the insertion of the term "FOB" in the contract meant that delivery took place in Lee County. In A & M Engineering, the buyer, a Florida corporation with its principal place of business in Broward County, and the seller, a Florida corporation with its only office in Pinellas County, entered into a contract *20 for plastic parts and moldings. The seller made several shipments to the buyer's place of business in Broward County and then informed the buyer that a manufacturing problem had caused a temporary shutdown. The buyer sued in Broward County for breach of contract for failure to supply the plastic parts and the seller moved for change of venue. The contract stated "[p]rices are quoted F.O.B. Clearwater, Fl." 455 So.2d at 1125. Because there were no terms to the contrary, this court determined that the FOB phrase, which meant that the risk of loss passed to the buyer in Clearwater, also meant that Clearwater was the place of delivery and, thus, the place where the breach occurred. See id. at 1125-26.
The term "F.O.B." is defined in Part III of the Uniform Commercial Code Sales:
(1) Unless otherwise agreed the term "F.O.B." (which means "free on board") at a named place, even though used only in connection with the stated price, is a delivery term under which:
(a) When the term is "F.O.B. the place of shipment," the seller must at that place ship the goods in the manner provided in this chapter (s. 672.504) and bear the expense and risk of putting them into the possession of the carrier;. . .
§ 672.319(1)(a), Fla. Stat. (2003). Additionally, section 672.504, entitled "Shipment by seller," provides:
Where the seller is required or authorized to send the goods to the buyer and the contract does not require her or him to deliver them at a particular destination, then unless otherwise agreed the seller must:
(1) Put the goods in the possession of such a carrier and make such a contract for their transportation as may be reasonable having regard to the nature of the goods and other circumstances of the case; . . .
Courts have held that when the requirements of the statute are complied with, the insertion of the term "F.O.B. [the place of shipment]" establishes the location of the "delivery" of goods for the purposes of venue in a breach of contract action when either the goods were not delivered or were defective when delivered. See A & M Eng'g, 455 So.2d at 1125; see also Forms & Surfaces, 627 So.2d at 595; Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979). Here, despite the phrase "FOB my studio," there was contrary language in the contract, indicating the purchase price included "set up and delivery," which could mean "set up" at or near the buyer's location. In his affidavit opposing the motion to transfer venue, Howard Camac, managing partner of Pier Point, stated that Whitelaw delivered the display model to Pier Point in Broward County. On the record before the court, we are unable to determine if Whitelaw placed the model for shipment from the studio in compliance with section 672.504 or simply delivered the model to Pier Point at a particular destination in Broward County. The term "F.O.B." is not a magic talisman for the creation of venue rights when the rigors of the statute have not been complied with.
Because the proper place of venue in relation to the breach of contract claim turns on the place of delivery, we must remand to the trial court to resolve the factual issue of whether the place of delivery in this case was Lee County or Broward County. See Forms & Surfaces, 627 So.2d at 595. We note that the trial court made no express findings in regard to the tort claims, but we find, to the extent they are viable, venue is proper for them in Broward County and the trial court erred in ruling otherwise. See First State Bank *21 of Miami v. McGrotty, 354 So.2d 1273, 1274 (Fla. 1st DCA 1978) (holding that where allegations of complaint place venue in county where action is brought, merits of a properly stated cause of action are to be determined during the proceedings and not upon resolution of venue issue).
REVERSED in part and REMANDED.
TAYLOR and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455315/ | 252 P.3d 647 (2011)
BECKER
v.
ASHWORTH.
No. 104417.
Court of Appeals of Kansas.
June 3, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3094371/ | Opinion filed January 6,
2011
In The
Eleventh
Court of Appeals
__________
No. 11-09-00359-CV
__________
GORDON
R. SIMMONDS, Appellant
V.
NORMA
A. HARRISON, Appellee
On
Appeal from the 259th District Court
Jones
County, Texas
Trial
Court Cause No. 021973
M
E M O R A N D U M O P I N I O N
Gordon
R. Simmonds sued Norma A. Harrison in her official capacity as a mailroom
administrative assistant at the French Robertson Unit of the Texas Department
of Criminal Justice – Institutional Division. Simmonds alleged that Harrison
denied him access to a package because money was due. Simmonds sought $612.20
for actual damages plus damages for mental suffering and emotional distress as
well as exemplary, punitive, and treble damages. The trial court granted
Harrison’s motion to dismiss, finding that Simmonds failed to comply with the
requirements of Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.001-.014 (Vernon 2002) and that Simmonds’s claims
were frivolous. We affirm.
On
appeal, Simmonds contends that the trial court erred by dismissing without
holding a hearing and before he had filed a response to the motion to dismiss,
by not amending its judgment and reinstating his case, and by holding that his
claims were frivolous. Simmonds also argues that the district clerk failed to
perform a ministerial duty in preparing the clerk’s record.
Section
14.008 provides that the trial court may hold a hearing but does not require
that one be held and does not require that a response be filed before the trial
court dismisses the action. The clerk’s record and the supplemental clerk’s
records filed in this court contain the documents required under Tex. R. App. P. 34.5. This record does
not support Simmonds’s claims that the trial court abused its discretion in
dismissing his case. Moreover, we note that Simmonds’s petition does not state
a nonfrivolous cause of action.
All
of Simmonds’s arguments have been considered, and each is overruled. The order
of the trial court is affirmed.
PER
CURIAM
January 6, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2440622/ | 967 N.E.2d 500 (2008)
382 Ill. App. 3d 1219
359 Ill. Dec. 770
GETSCHOW
v.
INTERNATIONAL EQUIPMENT, INC.
No. 3-07-0457.
Appellate Court of Illinois, Third District.
May 21, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918956/ | 106 B.R. 155 (1989)
In re Manuel Guadalupe REYES, Debtor.
Bankruptcy No. 89 B 30302.
United States Bankruptcy Court, N.D. Illinois, W.D.
July 25, 1989.
*156 William M. Flaherty, Atty., Rockford, Ill., for debtor.
Paul S. Godlewski, Atty., Rockford, Ill., for objector.
MEMORANDUM OPINION AND ORDER
RICHARD N. DeGUNTHER, Bankruptcy Judge.
This matter comes before the Court on an Objection to Confirmation, filed by General Finance Corporation (General).
This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
BACKGROUND
The Debtor is a tool and die machinist at Elco Industries and has been employed there for over five years. Although earning a comfortable income for a single person without dependants, the Debtor managed to accumulate over $19,000 in unsecured debt. A portion of the unsecured debt resulted from deficiencies owed after secured creditors repossessed two of the Debtor's vehicles; first a van, leaving a deficiency of approximately $1,066, and then, in 1988, a car, leaving a deficiency of approximately $3,130.
Shortly after the second automobile was repossessed, and even though he was liable for the indebtedness listed above, the Debtor purchased a 1988 Chevrolet Blazer through the Elco Credit Union for over $19,300.[1] The payment schedule was established at $472.00 per month, to be taken from the Debtor's earnings directly. The Debtor testified that the reason for purchasing the Blazer was because he wanted a four wheel drive vehicle. He also testified that his financial condition tightened after the purchase.
Not surprisingly, the Debtor filed a Petition pursuant to Chapter 13 of the Code, on February 28, 1989. The Schedules listed total secured debt of $22,132, including the debt secured by the Blazer and a debt secured by furniture and a camcorder. Total unsecured debt, including the $2,160 owed to General, was listed at $19,575. Current gross income was stated to be approximately $25,000 per year. The Debtor's Budget projected that after deducting monthly expenses, including $120 for recreation, $120 for transportation, and $300 for food, $700 per month would be left over for funding the Plan.
The Debtor's Chapter 13 Plan provides for the distribution to creditors of $660 per month as follows: Payment in full of the costs of administration, priority claims, secured claims, and an unsecured claim representing a loan cosigned by the Debtor's father; payment of 10% of the remaining unsecured claims. The 10% payment on the unsecured debt over the term of the Plan works out to approximately $2,000 in total. It appears that if the Blazer payment was reduced by 1/3, enough funds would be left over to pay unsecured creditors roughly three times the amount that is currently proposed over the term of the Plan.
On April 19, 1989, General filed an Objection to Confirmation, alleging that the Debtor's Plan was not proposed in good faith in that the sole purpose of filing was to retain the recently purchased Blazer and to make only nominal payments to the unsecured creditors. General also alleged that the Debtor had not provided for all of his disposable income to be paid to the Trustee for distribution. At the hearing on confirmation, the Debtor alleged that the Plan should be confirmed because the Debtor could have filed a Chapter 7 case, reaffirmed the Blazer debt, and paid nothing to unsecured creditors. The Court then took the matter under advisement.
DISCUSSION
The confirmation requirements of Chapter 13 are set out in Section 1325 of the Bankruptcy Code. General brings into *157 question two of these requirements: whether the Debtor's Plan was proposed in good faith, as required by Section 1325(a)(3); and whether the Plan provides for the application of all the Debtor's disposable income to fund the Plan, as required by Section 1325(b).
Section 1325(a)(3) provides:
(3) the plan has been proposed in good faith and not by any means forbidden by law;
Section 1325(b)(1) provides in relevant part:
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
(B) the plan provides that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
Disposable income is defined in Section 1325(b)(2):
(2) For purposes of this subsection, "disposable income" means income which is received by the debtor and which is not reasonably necessary to be expended
(A) for the maintenance or support of the debtor or a dependent of the debtor;
A debtor's failure to meet the disposable income requirement of Section 1325(b) does not require the finding that the debtor did not propose the plan in good faith pursuant to Section 1325(a)(3). See In re Sutliff, 79 B.R. 151 (Bankr.N.D.N.Y. 1987). The two are distinct and separate requirements of confirmation. Good faith is determined under the totality of the circumstances, In re Smith, 848 F.2d 813 (7th Cir.1988), while the disposable income requirement turns only on whether the debtor's budgeted expenses are reasonably necessary. Moreover, unlike Section 1325(a)(3), the plain language of Section 1325(b) precludes the Court from raising the disposable income issue sua sponte. Only an unsecured creditor or the Chapter Trustee may do so.
In the present case, General has not established that the Debtor's Plan was not proposed in good faith. The purchase of a new vehicle, and reliance upon Chapter 13 when the payments cannot be made, indicates an indifference to ones obligations, but does not, standing alone, rise to the level of bad faith. Under the totality of the circumstances, the Court finds that Section 1325(a)(3) has been met here.
See, however, the article, copy attached, by Bankruptcy Judge Judith A. Boulden. Judge Boulden perceives the debtor's commitment to make the necessary sacrifices to carry through the plan as an element of both good faith and feasibility even where the technical requirements have been met. And this Court would hardly disagree.
The Debtor's proposal to continue his indifference, or lack of commitment, to creditors through a Chapter 13 does, however, violate the disposable income requirement. The proper analysis for determining whether the debtor has deducted from income only those expenses that are "reasonably necessary," and has therefore provided all the debtor's disposable income to fund the plan, has been addressed frequently by the courts.
Several courts have interpreted the reasonably necessary standard to include only those expenses for basic needs not related to the debtor's former status in society or lifestyle to which he is accustomed. See In re Kitson, 65 B.R. 615 (Bankr.E.D.N.C. 1986); In re Bien, 95 B.R. 281 (Bankr.D. Conn.1989); In re Hedges, 68 B.R. 18 (Bankr.E.D.Va.1986); In re Rogers, 65 B.R. 1018 (Bankr.E.D.Mich.1986). A leading commentator espouses the view that the reasonably necessary standard should only exclude luxury items and obvious indulgences. See 5 Collier on Bankruptcy, para. 1325.08 (15th Ed.1988). It appears that a bright line rule of what is reasonably necessary has not been established by the courts.
In the present case, the Debtor's Chapter 13 Plan fails the disposable income requirement no matter what view of the reasonably necessary standard is applied. The Blazer is an "obvious indulgence" if ever *158 there was one. The Debtor did not purchase the four wheel drive Blazer to provide a reliable means of transportation to work, for he lived three miles from work and presumably near paved roadways. Nor did he purchase the Blazer as a requirement of, or to be used for work, as the Blazer is of the "recreational" variety. The Debtor purchased the Blazer simply because he wanted to drive an extravagant four wheel drive vehicle.
The Court agrees with General that a new car can be purchased for half of what the Debtor paid for the Blazer, and reliable used cars for even half of that. Several courts have found that such inflated amounts for transportation are not reasonably necessary under Section 1325(b). See In re Rogers, supra; and In re Chrzanowski, 70 B.R. 447 (Bankr.D.Del.1987). These courts have recognized, as the Court does here, that Chapter 13 debtors should not be able to continue the extravagances which put them into bankruptcy, while their unsecured creditors go unpaid.
The Court finds, therefore, that the payments on the Blazer are not reasonably necessary for the Debtor's maintenance or support.
General also questioned whether the expenses set out in the Debtor's budget represented reasonably necessary expenditures. The Court will typically not impose its judgment as to the necessity of every expense listed on a debtor's Chapter 13 budget. In addition, some leeway in budgeting is required in order to meet the feasibility requirement of Section 1325(a)(5) of the Code.
However, when, as here, the budgeted expenses are overly excessive and inflated, and an objection is raised by an unsecured creditor, the Court must review the budget to determine whether Section 1325(b) has been met. In re Sutliff, supra. The Debtor's budget indicates inflated monthly expenses of $120 for recreation, $120 for transportation and $300 for food. Considering these amounts in light of the fact that the Debtor has proposed to contribute only $660 of the $700 in monthly income remaining after deduction of expenses, the Court must find that the disposable income requirement would not be met even if the payments on the Blazer did not exist.
The Debtor's argument that the creditors will receive more than in a Chapter 7 case is misplaced. It is true that Section 1325(a)(4) requires creditors to receive under a Chapter 13 plan not less than what they would have received if the estate were liquidated under Chapter 7. 11 U.S.C. Section 305(a)(1). The "best interests of creditors" requirement is one important hurdle the Debtor must jump in order to achieve confirmation.
However, the Debtor may not ignore another provision of Section 1325 that becomes a requirement once properly raised, the disposable income requirement of Section 1325(b)(1). Congress added this subsection to Section 1325, pursuant to the Bankruptcy Amendments and Federal Judgeship Act of 1984, in response to the divergence of opinion among the courts as to the minimum level of payment necessary to meet the good faith requirement of Section 1325(a)(3). The disposable income requirement was intended to be in addition to, and not an alternative for, the best interests of creditors requirement of Section 1325(a)(4). See In re Willingham, 83 B.R. 552 (Bankr.S.D.Ill.1988); In re Fries, 68 B.R. 676 (Bankr.E.D.Pa.1986); and In re Rogers, supra. Hence, it is misplaced to argue that the Plan should be confirmed because one, although not all, of the requirements of confirmation have been met.
* * * * * *
In addition, the Debtor's argument ignores Section 707(b) of the Bankruptcy Code. Were the Debtor to file a Chapter 7, he would have to survive the substantial abuse analysis of Section 707(b). Indeed, in many respects the substantial abuse provisions of Chapter 7 limit the debtor's free rein in treatment of its creditors, much as the reasonably necessary provision does in Chapter 13. A primary factor which may indicate substantial abuse is the ability of the debtor to repay debts out of future income. See In re Peluso, 72 B.R. 732 *159 (Bankr.N.D.N.Y.1987); In re Struggs, 71 B.R. 96 (Bankr.E.D.Mich.1987); In re Kitson, supra. Hence, the Debtor's "big stick" argument that "I could have filed a Chapter 7 and given unsecured creditors nothing," is not as big as the Debtor would or should make it out to be.
* * * * * *
The Debtor's Chapter 13 Plan does not propose to pay all the Debtor's disposable income to fund the Plan and should not be confirmed. Although it is not in the public interest to squeeze the last dollar out of Chapter 13 debtors to fund Chapter 13 plans, In re Otero, 48 B.R. 704 (Bankr.E.D. Va.1985), a Chapter 13 debtor cannot expect to go "first class when coach is available." In re Kitson, supra.
The Debtor's attempt to retain an expensive new vehicle simply because he wants it, while proposing to pay unsecured creditors 10% of their claims is particularly disturbing to the Court. During his testimony, in response to a question put to him by the Court, the Debtor stated that he had fully disclosed his dismal financial history to Elco Credit Union, and they had, in the face of it, approved his request for the Blazer loan.
Chapter 13 was intended to give debtors a chance to repay debts, which may require some sacrifices by the debtor. It was not intended to be used as a tool for facilitating a debtor's already excessive and over-indulgent lifestyle. Consequently the Debtor's Chapter 13 Plan cannot be confirmed.
CONCLUSION
Therefore, based on the foregoing, the Court concludes:
(1) confirmation of the Debtor's Chapter 13 Plan should be denied; and
(2) the case should be dismissed, effective August 8, 1989, without further Order, unless the Debtor files, prior thereto, an Amended Plan which meets the confirmation requirements of Chapter 13.
IT IS SO ORDERED.
APPENDIX
From the Bench
By the Honorable Judith A. Boulden
United States Bankruptcy Judge for the District of Utah. Member, National Conference of Bankruptcy Judges, Chapter 13 Trustees' Liaison Committee.
Judge Boulden graduated from law school in 1974 and served a federal judicial clerkship. She was associated with two law firms specializing in corporate reorganizations and thereafter established her own firm which concentrated on debtor and trustee representation.
Prior to assuming the bench in January of 1988, Judge Boulden was Standing Chapter 13 Trustee for nine years, as well as a Chapter 7 Trustee. From an initial caseload of 40 cases, her Chapter 13 caseload increased to over 3,500 active cases. Total annual disbursements exceeded $5,000,000 prior to assuming the bench.
Any comments I have regarding the extraordinary success of Chapter 13 and the vital role of Standing Trustees as the engineers of that success, may seem like preaching to the already baptized. No group recognizes the effectiveness of this chapter as does this readership. No harm is done, however, in acknowledging in print the contribution of this chapter and of Standing Trustees, to the rehabilitation of a multitude of individuals.
Participants in the bankruptcy system not familiar with the Chapter 13 process, including some members of the bench, could well do with a reminder of the importance of this chapter. Perhaps because of its very success, this chapter does not attract the popular press as some Chapter 11 filings do. No headlines appear detailing the economic and psychological impact of the millions of dollars returned each year to creditors by honest debtors working their way toward economic recovery.
I fear that attitude is sometimes shared by the bench and bar. At a recent multi-circuit judicial conference, the closing speakers reviewed the strengths and weaknesses of the last 10 years under the Code. Chapter 11 was the exclusive success topic. *160 No mention whatsoever was made of Chapter 13.
I contend that Chapter 13 is the single most successful provision of the 1989 Bankruptcy Reform Act. The chapter has benefitted untold debtors by allowing them to retain their property and their dignity. Further, the co-equal goal of the Code of repaying creditors has been extremely successful in this chapter, both in terms of expeditious payment and numbers of claims satisfied.
The success of Chapter 13 encompasses a value to the system that is larger than the sum total of the successful Chapter 13's that have been confirmed and consummated. That value is in establishing and maintaining the credibility of the Chapter 13 system. That credibility generates creditor confidence that Chapter 13's are successful, will fairly repay money to them, can be counted upon to be administered promptly and equitably, and provide the positive rehabilitation desired in bankruptcy. If the credibility of the Chapter 13 system generates creditor cooperation and encouragement, debtors will find their plans more economically and expeditiously confirmed, thus enabling debtors to receive their discharges sooner.
In order to maintain this successful system and its reputation among creditors as an efficient, fair method of repayment, it is incumbent upon all those participating in the system to ensure that the spirit of the chapter is preserved. I believe that the integrity and credibility of the system is dependent in large upon Chapter 13 debtors consummating plans which repay the maximum amount possible to creditors.
Let me propose a philosophical approach which perhaps places the good of the system over the needs of any particular debtor. I do not believe that Chapter 13 was intended for every debtor who can possibly qualify under the minimum standards of the statute. I have observed, with some dismay, a new trend. That is the attempt on the part of some attorneys to obtain relief under Chapter 13 for debtors who, though perhaps nominally qualified, do not propose a meaningful repayment to creditors, whose chances of consummating a plan are speculative at best, and who evidence the rather cavalier attitude that if a Chapter 13 doesn't work, they can always convert to a Chapter 7.
I believe Chapter 13 was intended for a relatively select group of individuals. Congress has narrowed the availability of this chapter and already statutorily discriminated among debtors in setting forth both the eligibility requirements and the standards of confirmation of a plan. But, satisfaction of those qualifications alone doesn't necessarily ensure consummation of a plan. To really make a plan a success once confirmed, the Chapter 13 debtor must have a character trait which Congress cannot define. It is a function of both good faith and feasibility, and constitutes the debtor's commitment and desire to repay creditors over an extended period of time. Without that commitment, the nature and amount of the resources available to fund a plan are relatively immaterial. Even a plan proposing a 100% return is of no benefit to the parties involved or to the system if the debtor does not make the commitment to fulfill the obligation set forth in the plan.
Although the court may find a plan feasible and proposed in good faith as of the date of confirmation, the analysis must go one step further to determine if the debtor has the commitment necessary to consummate the plan. Feasibility is too often looked upon as only a function of the debtor's ability to fund a plan in the future. It is much more. It is the willingness of the debtor to modify an existing lifestyle, whether through supplemental employment or reduced expenditures, over an extended period of time. Those debtors lacking the commitment to make the necessary sacrifices to carry through with the plan, should not have their plans confirmed. If they are, it is only to the detriment of those individuals committing all available resources, as well as a determination to repay the maximum possible to creditors.
There is no benefit to the system as a whole to confirm a plan because it technically complies with 11 U.S.C. § 1325, *161 though there may be doubt as to whether the debtor has the commitment to consummate the plan. The warning signs, preconfirmation, of a lack of commitment are debtors who are tardy on their interim payments, who attempt to retain unnecessary assets or who propose budgets with a substantial "slop factor". It is tempting to confirm a plan which would give one last chance to save the debtor's home, car or other personal effects. But a plan should not be confirmed when it is apparent that the sole intent of the debtor is to retain assets, not to repay creditors.
I submit that in confirming a plan consideration must be given, not only to the individual circumstances of the debtor but to the integrity of the Chapter 13 evident to this point, cannot be maintained if the benefit of the doubt is consistently given to debtors with questionable plans, ability or commitment to this system to repay creditors. Those cases often end in conversion or dismissal. When that happens, it only serves to undermine the confidence that creditors have in the system. Repetitive filings, low repayment plans, attempts to retain expensive consumer items, or liberal budgets, only to serve destroy the credibility of Chapter 13 as an equitable means of repayment and rehabilitation.
This attitude is not unduly harsh or exclusivist. The statute still retains alternatives for individuals without the resources, capability or commitment to repay creditors. They have a remedy. I maintain, merely, that the remedy is not in filing a chapter 13 with the anticipation that if it isn't as easy as originally envisioned, one can always convert. A fresh start is, of course coupled with fair treatment of creditors and is available only for the honest debtor. Anything less injures the spirit and intent of the statute to the detriment of those honest debtors who may seek relief in the future.
NOTES
[1] As of the date of the petition, the balance on the loan from the Elco Credit Union was $19,300. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546927/ | 377 B.R. 731 (2007)
In re Michael J. DeMEO, Debtor(s).
Citicorp Leasing, Inc., Plaintiff(s),
v.
Michael J. DeMeo, Defendant(s).
Bankruptcy No. 07-10802-BKC-PGH, Adversary No. 07-1220-BKC-PGH-A.
United States District Court, S.D. Florida, West Palm Beach Division.
October 15, 2007.
*732 *733 Harry J. Ross, Esq., Boca Raton, FL, for Debtor/Defendant.
Gregory S. Grossman, Esq., Miami, FL, for Plaintiff.
ORDER GRANTING PLAINTIFF CITICORP LEASING, INC.'S MOTION FOR SUMMARY JUDGMENT
PAUL G. HYMAN, Chief Judge.
THIS MATTER came before the Court on May 23, 2007 upon Citicorp Leasing, Inc.'s (the "Plaintiff' or "CLI") Motion for Summary Judgment (the "Motion"). On September 4, 2007, Michael J. DeMeo (the "Debtor") filed a Memorandum in Opposition to Plaintiff's Motion for Summary Judgment (the "Response").
Plaintiff filed a complaint asserting that a debt owed by the Debtor is nondischargeable under 11 U.S.C. § 523(a)(6) (the "Adversary Complaint"). The debt in question is evidenced by a New York State Court default judgment for, among other things, conversion of the Plaintiffs collateral (the "New York Judgment"). The Motion asserts that the portion of the New York Judgment for conversion constitutes a debt for willful and malicious injury to the property of another entity and therefore is nondischargeable under section 523(a)(6).
The issue before the Court is whether collateral estoppel applies to establish that the debt is nondischargeable as a willful and malicious injury under section 523(a)(6). For the reasons discussed below, the Court finds that the requirements of collateral estoppel have been met and that entry of summary judgment in favor of the Plaintiff is appropriate.
BACKGROUND
The Debtor was President and CEO of Carcorp, USA ("CUSA"), which had an established line of credit with European American Bank ("EAB"); EAB was later acquired by CLI.[1] The Debtor personally guaranteed the line of credit and executed a guaranty that provided that "[the Debtor] submits to the jurisdiction of the federal and state courts in New York State in any action or proceeding brought under *734 this Guaranty. . . ." (Adversary Compl., Ex. B.)
On October 18, 2002, CLI filed a complaint in the Supreme Court of the State of New York, New York `County, against CUSA, Carcorp Ventures, Inc., and the Debtor, for conversion of CLI's property (the "New York Complaint"). The Debtor was served with the New York Complaint on. October 24, 2002 but did not file any responsive pleading.
On March 19, 2003, the Supreme Court of the State of New York entered a default judgment against the Debtor and in favor of CLI. The amount of the New York Judgment based upon conversion is $744,359.00. Under Chapter 55 of the Florida Statutes, CLI subsequently domesticated the New York Judgment by recording it in the land records in Broward County, Florida. The Debtor did not contest the domestication of the New York Judgment and CLI then instituted enforcement proceedings in the Seventeenth Judicial Circuit of Broward County, Florida.
One year after the New York Judgment was entered, the Debtor moved to vacate that judgment (the "Motion to Vacate"). In the Debtor's Affidavit in Support of Motion to Vacate Default Judgment accompanying the Motion to Vacate, the Debtor acknowledged that he received notice of the action against him, but "relied on the advice of my former counsel to my detriment." (Joint Stipulation, Ex. B.) The New York Court denied the Motion to Vacate and stated that "the documentary evidence establishes that the corporate defendants expressly agreed to the exclusive jurisdiction and venue of any New York State or federal court located in New York City or Nassau County,' and that [the Debtor] expressly agreed to submit to the jurisdiction of the federal and state courts in New York." (Joint Stipulation, Ex. C.)
On February 8, 2007, the Debtor filed for relief under Chapter 7 of the Bankruptcy Code. On May 2, 2007 CLI filed this adversary proceeding against the Debtor.
CONCLUSIONS OF LAW
The Court has jurisdiction over this matter under 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (I).
A. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(c), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056, provides that summary judgment is appropriate if the Court determines that the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "An issue of fact is `material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). "In determining whether a genuine question of material fact exists, the Court must consider all evidence in the light most favorable to the non-movant." Pilkington v. United Airlines, Inc., 921 F.Supp. 740, 744 (M.D.Fla.1996). In considering a motion for summary judgment, "the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable *735 inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). "Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. . . . If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment." Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir.1999).
B. The Doctrine of Collateral Estoppel
State court judgments are entitled to "the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) (citing 28 U.S.C. § 1738). The Doctrine of collateral estoppel, or issue preclusion, prevents relitigation of issues that have been necessarily decided in a prior proceeding. Callasso v. Morton & Co., 324 F.Supp.2d 1320, 1324 (S.D.Fla.2004); DirecTV v. Deerey (In re Deerey), 343 B.R. 308, 310 (Bankr. M.D.Fla.2006). Moreover, collateral estoppel applies to state court judgments in nondischargeability proceedings in bankruptcy courts. See Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Computers Auditors & Scientists, Inc. v. Feldstein (In re Feldstein), 93 B.R. 272 (Bankr.M.D.Fla.1988).
It is well settled that federal courts are to apply the collateral estoppel law of the state in which judgment was rendered. See Marrese, 470 U.S. at 380, 105 S.Ct. 1327; Tricentrol Overseas, Ltd: v. Touchstone (In re Touchstone), 149 B.R. 721, 725 (Bankr.S.D.Fla.1993). In this case, the underlying judgment was entered in New York and therefore. New York's collateral estoppel laws apply.
Under New York Law, in order for collateral estoppel to apply two requirements must be satisfied: (1) the identical issue must necessarily have been decided in the prior action and be decisive of the present action, and (2) the party to be precluded from re-litigating the issue must have had a full and fair opportunity to litigate the issue in the prior action. Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir. 2006); see also D'Arata v. N.Y. Cent. Mutual Fire Ins. Co., 76 N.Y.2d 659, 563 N.Y.S.2d 24, 564 N.E.2d 634, 636 (1990). The Court finds that the Debtor's liability for willful and malicious conversion is established by the New York Judgment and is decisive of the present action, and that the Debtor had a full and fair opportunity to litigate the issue in the New York Proceedings.
C. The Debtor is Collaterally Estopped from Contesting the jurisdiction of the New York Court
The Debtor argues in the Response that because he did not appear in New York he did not have a full and fair opportunity to contest the jurisdiction of the New York Court. The Debtor relies on the 11th Circuit decision in In re Held, 734 F.2d 628 (11th Cir.1984), to argue that an issue must have actually been litigated by the defendant in the prior litigation in order for collateral estoppel to apply. However, the Held Court was applying Florida collateral estoppel principles, which are not applicable here. Under New York collateral estoppel law, an issue does not need to have been actually raised in the pleadings as long as it was necessarily decided by the Court. See Ottimo, 469 F.3d at 282; Kret v. Brookdale Hosp. Med. *736 Ctr., 93 A.D.2d 449, 462 N.Y.S.2d 896, 902 (1983).
The New York Court decided the jurisdictional issue when `it denied the Debtor's Motion to Vacate the New York Judgment. In denying the Motion to Vacate, the. New York Court held not only that there was no reasonable excuse for the default, but also that the documentary evidence established that the Debtor expressly agreed to the jurisdiction of New York state courts. The New York Court made an independent determination that it had personal jurisdiction over the Debtor.[2] The Debtor does not dispute that he was properly served in state court or that he failed to respond to the complaint. Moreover, the record does not indicate that the Debtor ever directly appealed either the New York Judgment or the Order denying the Motion to Vacate. Where a defendant has received an adverse determination as to jurisdiction in one court he may not raise the issue again in another court, even if the ruling is erroneous on the facts or law. Archbold Health Servs., Inc. v. Future Tech. Bus. Sys., Inc., 659 So.2d 1204, 1206 (Fla.Dist.Ct.App.1995); Boorman v. Deutsch, 152 A.D.2d 48, 547 N.Y.S.2d 18, 21 (1989). The proper remedy, if a party believes there was an error by the state court, is to seek reversal in the proper appellate court. See Archbold Health Servs., 659 So.2d at 1206. Because the New York Court necessarily determined that it had personal jurisdiction over the Debtor and he did not appeal that ruling, he can not now contest the jurisdiction of the New York Court in this proceeding.
D. The Debtor Is Collaterally Estopped From Contesting Liability For Conversion Based Upon The New York Judgment.
In New York, collateral estoppel applies to a prior judgment obtained by default where the defending party failed to answer. See Ottimo, 469 F.3d 278 (rejecting the argument that collateral estoppel cannot be applied where the prior judgment was obtained by default). A defaulting litigant may not contest the liability issues in a subsequent bankruptcy proceeding. Id. at 282 (holding that a bankruptcy court is bound by the liability determination in a state court default judgment). Moreover, upon entry of a default judgment, all traversable allegations of liability in the complaint are deemed admitted. Brown v. Rosedale Nurseries, Inc., 259 A.D.2d 256, 686 N.Y.S.2d 22, 23 (1999). The New York Complaint alleged that the Debtor "converted the CLI collateral including, without limitation, the Vehicles and the Insurance proceeds" and "in exercising dominion and control over the foregoing CLI collateral . . . [the Debtor] acted with malice, insult, and reckless and willful disregard for the rights of CLI." The New York Judgment was entered against the Debtor on default after he failed to file any responsive pleading. He is therefore deemed to have admitted the allegations in the New York Complaint, including that he willfully and maliciously converted CLI's collateral. The Debtor was afforded the opportunity to contest the allegations, but as the New York Court determined in denying the Motion to Vacate, he deliberately *737 chose not to do so. The New York Judgment is therefore conclusive as to the issue of the Debtor's liability for willful and malicious conversion of CLI's collateral and the Debtor is collaterally estopped from contesting liability.
E. The New York Judgment for Conversion is a Nondischargeable Debt Under Section 523(a)(6)
CLI seeks a determination that the New York Judgment is nondischargeable under section 523(a)(6) as a debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). A judgment for willful and malicious conversion of the collateral of a secured party by an individual debtor falls within section 523(a)(6) as a willful and malicious injury to the property of another and is a nondischargeable debt. Ford Motor Credit Co. v. Owens, 807 F.2d 1556 (11th Cir.1987); In re Penning, 22 B.R. 616 (Bankr.E.D.Mich.1982). Because the New York Judgment was entered on default, the Debtor is deemed to have admitted that he willfully and maliciously converted CLI's collateral as alleged in the New York Complaint and the debt for the New York Judgment is therefore nondischargeable.
In this case, the New York Complaint alleges: (i) CLI advanced funds to CUSA to purchase vehicles for lease to its lessees; (ii) CLI maintained a purchase money security interest in the vehicles, the proceeds of the vehicles, and insurance proceeds; (iii) the Debtor personally guaranteed the payment and performance of CUSA; and (iv) the Debtor, as President and CEO, subsequently caused CUSA to sell a number of the vehicles in violation of the security agreement and failed to pay the proceeds to CLI.
The facts of this case are similar to those that were before the court in Owens. In Owens the debtor had personally guaranteed the payment and performance of the car dealership of which he was the majority stockholder. Under its security agreement with FMCC, the inventory financier, the dealership was to hold proceeds from sales in trust for FMCC and to remit those proceeds to FMCC upon receipt. The dealership subsequently sold a number of vehicles without remitting the proceeds to FMCC in violation of the agreement. The 11th Circuit upheld the District Court's determination that "a personal debtor who, as an officer of a corporation, actively participates in the conversion of property which is subject to the security interest of a third party, is personally liable to said party and thus the debt is nondischargeable pursuant to section 523(a)(6)." Id. at 1559 (citing In re Schwartz, 36 B.R. 355 (Bankr.E.D.N.Y. 1984)). Based on the allegations of the New York Complaint it is clear that the Debtor here was an officer of Carcorp who actively participated in the conversion of CLI's collateral and thus is personally liable to CLI for the damaged caused thereby. Therefore, the New York Judgment against the Debtor is a debt for willful and malicious conversion of property of another and is nondischargeable under section 523(a)(6).
CONCLUSION
The Court finds that no material facts are in dispute and that the `requirements for the application of collateral estoppel have been satisfied. The New York Judgment conclusively establishes the Debtor's liability for willful and malicious injury to the property of another and that the Debtor had a full and fair opportunity to litigate the matter in the New York proceedings. Thus, entry of summary judgment in favor of the Plaintiff is appropriate.
*738 The Court having considered the submissions of the parties and being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. The Motion is GRANTED.
2. Judgment is awarded in favor of the Plaintiff.
3. The Debtor's discharge of the debt identified by the New York Judgment is DENIED.
4. Pursuant to Federal Rule of Bankruptcy Procedure 9021, a separate final judgment shall be entered by the Court contemporaneously herewith.
NOTES
[1] This fact is taken from Defendant, Michael J. DeMeo's Affidavit in Opposition to Plaintiff's Motion for Summary Judgment. All other facts are taken from the parties' Joint Stipulation of Facts and exhibits attached thereto filed on September 18, 2007, unless otherwise noted.
[2] It is worth noting that the New York Court was correct in finding that it had jurisdiction over the Debtor based on the forum-selection clause in the guaranty executed by the Debtor. See British W. Indies Guar. Trust Co. v. Banque Internationale A Luxembourg, 172 A.D.2d 234, 567 N.Y.S.2d 731 (1991) (finding that forum-selection clauses are prima facie valid absent a showing that enforcement would be unreasonable or unjust or that the clause is invalid because of fraud or overreaching). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546942/ | 377 B.R. 579 (2007)
In re Arthur M. VOLPE, Debtor.
Arthur M. Volpe, Plaintiff,
v.
Internal Revenue Service, Defendant.
Bankruptcy No. 03-15888, Adversary No. 06-2038.
United States Bankruptcy Court, N.D. Ohio, Eastern Division.
October 23, 2007.
*580 *581 *582 Thomas C. Pavlik, Novak, Robenalt & Pavlik LLP, Cleveland, OH, for Plaintiff.
Alex T. Case, Washington, DC, for Defendant.
MEMORANDUM OF OPINION
PAT E. MORGENSTERN-CLARREN, Bankruptcy Judge.
Debtor Arthur M. Volpe filed this adversary proceeding against the Internal Revenue Service seeking a declaratory judgment that his federal tax debts for the years 1997, 1998, and 1999 are dischargeable in his chapter 7 case.[1] The IRS responded that the debtor's liabilities for those years are excepted from discharge under 11 U.S.C. § 523(a)(1)(C) because the debtor willfully attempted to evade paying the taxes. For the reasons stated below, the court finds that the debts are not discharged.
JURISDICTION
Jurisdiction exists under 28 U.S.C. § 1334 and General Order No. 84 entered by the United States District Court for the Northern District of Ohio. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I).
FACTS
I.
The court held "a trial on this complaint on September 20, 2007. The debtor presented his case through his own testimony and with documents. The IRS presented its case through the cross-examination of the debtor, the examination of Audrey Volpe (the debtor's mother) as if on cross, the direct examination of Diane Podway (the debtor's former girlfriend), and with documents.
These findings of fact are based on the parties* joint stipulations of facts[2] and the evidence presented at trial. The findings reflect the court's weighing of the evidence presented, including determining the credibility of the witnesses. "In doing so, the Court considered the witnesses* demeanor, the substance of the testimony, and the context in which the statements were made, recognizing that a transcript does not convey tone, attitude, body language or nuance of expression." In re V Companies, 274 B.R. 721, 726 (Bankr.N.D.Ohio 2002). See FED. R. BANKR.P. 7052 (incorporating FED.R.CIV.P. 52). When the court finds that a witness's explanation was satisfactory or unsatisfactory, it is using this definition:
The word satisfactory may mean reasonable, or it may mean that the Court, after having heard the excuse, the explanation, has that mental attitude which finds contentment in saying that he believes the explanation he believes what the [witness] say[s] with reference to the [issue at hand]. He is satisfied. He no longer wonders. He is contented.
United States v. Trogdon (In re Trogdon), 111 B.R. 655, 659 (Bankr.N.D.Ohio 1990) (internal citations and quotation marks omitted).
II.
The debtor is a self-employed real estate *583 agent and licensed realtor[3] who has been in the business for 33 years. When he filed his chapter 7 petition, he had federal income tax liabilities in the amount of $203,257.25 for the tax years 1997, 1998, 1999, and 2002.[4] The debtor received his bankruptcy discharge on August 19, 2003. See 11 U.S.C. § 727. This litigation was triggered post-discharge when the IRS sent a letter to the debtor stating that his tax debt was non-dischargeable under § 523(a)(1)(C).[5] The debtor then filed this adversary proceedings asking that the debt for 1997, 1998, and 1999 be declared dischargeable.
The Debtor's Tax Assessment and Payment History
Tax year 1997: The debtor received extensions to file his tax return until October 15, 1998, but did not file his return until April 5, 1999. The debtor reported $225,475.00 in gross income, of which $64,981.54 was due in taxes. The debtor made one $12,000.00 payment on April 15, 1998. On April 7, 1999, the debtor made a $16,000.00 payment toward his 1998 tax liability, which the IRS applied to his outstanding taxes for 1997. On January 28, 2002, the IRS sold the debtor's rental property at 87 Lincoln Avenue, Berea, Ohio pursuant to a levy, and applied the proceeds totaling $45,729.80 to the 1997 tax debt. The underlying tax liability for 1997 is now paid, but accrued penalties and interest to the petition date remain in the amounts of $15,851.08 and $22,165.22, respectively.[6]
Tax year 1998: The debtor received extensions to file his tax return until October 15, 1999, but did not file his return until April 18, 2000. He reported $174,161.00 in gross income, of which $64,414.00 was due in taxes. The debtor has not made any payments on this liability. To date, the underlying tax liability remains $64,414.00 and the' penalties and interest to the petition date are $33,520.65 and $28,448.65, respectively.[7]
Tax year 1999: The debtor timely filed his tax return on April 15, 2000. He reported $115,736.00 in gross income, of which $32,862.00 was due in taxes. The debtor did not make any voluntary payments toward this liability, but the IRS applied two overpayments from tax year 2000 totaling $9,994.00 to the 1999 debt. To date, the underlying tax liability is $22,868.00, and the penalties and interest to the petition date are $6,814.37 and $6,753.12, respectively.[8]
The Debtor's Divorce
The debtor testified that he did not have any money to pay his tax obligations in 1997, 1998, and 1999 because he was caught up in a long and complex divorce. The divorce proceedings officially began in August 1997,[9] but the Volpes' marital problems existed at least since 1995 or 1996, when the debtor moved out of their shared residence at 19471 Stoughton Drive, Stongsville, Ohio to a rental property he owned with his then-wife at 172 Fair Street, Berea, Ohio.[10] The debtor testified that he could not pay his taxes because all of his money was "tied up in the divorce," and that he had to pay attorney fees of about $50,000.00 to his own attorney and $37,500.00 to his ex-wife's attorneys, plus *584 additional fees after the divorce was granted. The Volpes signed a separation agreement on September 9, 1998 and the court entered an agreed judgment entry of divorce in April 1999, but the divorce proceedings continued until 2006.[11] The debtor testified that the divorce was acrimonious.
The Crossbrook Property
The crux of the factual dispute in this case is a house located at 548 Crossbrook Drive, Berea, Ohio that was owned by Janice Justice, a family friend. In about September 1998, Ms. Justice contacted the debtor to discuss listing the house with him for sale. The debtor testified that he encouraged his mother, Audrey Volpe, to buy it so that she could have an investment and also so that he could move there with his children from the Fair Street property.
The debtor handled all aspects of the transaction with Ms. Justice, including negotiating a purchase price of $145,000.00 secured by a mortgage, with no money down and no closing costs, to be paid, in equal installments over thirty years at 7% interest, which amounted to a monthly payment of $941.00. Audrey Volpe and Ms. Justice signed the warranty deed on September 28, 1998 and recorded it on October 1, 1998.[12] The debtor testified that he immediately agreed to rent the property from his mother, paying rent in the same amount as the monthly payments due to Ms. Justice. There was no written rental agreement.[13] The debtor made each month's payment directly to Ms. Justice.[14] The debtor also paid the utility bills, the real estate taxes, the insurance payments, and any maintenance costs himself.[15] Audrey Volpe did not keep, any of the paperwork associated with the transaction, nor did she report the rent payments on her income taxes or take a mortgage interest deduction for the property on her tax returns.[16]
The debtor testified that he arranged this transaction because (1) he did not have the money to buy the property' himself; and (2) he could not buy it directly for fear that his wife would try to acquire it in the divorce. By the time the Crossbrook paperwork was signed and filed, however, the debtor's then-wife had already signed the separation agreement in which she agreed to "transfer all her right, title and interest to the real estate located at . . . 548 Crossbrook Drive, Berea, Ohio, to Husband."[17] The debtor testified that he could not take her word at face value and, therefore, asked his mother to buy the house. When asked to explain why he thought it necessary to refer in the separation agreement to property owned by his mother, he said that his attorney inserted this provision either through inadvertence or an overabundance of caution during the settlement negotiations.
In July 2003, after the debtor had filed his bankruptcy case, he renegotiated the terms of the loan with Ms. Justice. They agreed to drop the interest rate from 7% to 5% and reduce the term of the note from thirty years to fifteen years.[18] These changes meant that the debtor's monthly payments increased to $1,486.00. The *585 debtor continued to make all payments directly to Ms. Justice.
On June 10, 2005, the chapter 7 trustee filed an adversary proceeding in which the trustee alleged, among other things, that the debtor had an ownership interest in the Crossbrook property that was part of the bankruptcy estate. On January 13, 2006, the court entered an order granting the trustee's motion to compromise that dispute with the debtor; he paid $7,000.00 to the estate without an admission of liability and the court closed the adversary proceeding.[19]
The debtor then asked his bankruptcy counsel if it was "ok" to put the property in his name since the bankruptcy, had closed[20] Counsel advised him that it was. About one week later, on January 24, 2006, Audrey Volpe conveyed the Crossbrook property to the debtor for no consideration by quitclaim deed.[21] The debtor then executed a mortgage deed with Ms. Justice.[22] The debtor and Audrey Volpe both testified that they made this transfer because of Audrey Volpe's ill health, with the thought that when she died, the debtor would keep the house without the property going through the probate court. The debtor has siblings and there was no explanation for why his mother wanted to transfer the house to him alone.
Money Spent by the Debtor on Vacations and Private Schools
Throughout the divorce proceedings and following the entry of divorce, the debtor had primary custody of the Volpes' two children and paid for their education. Between 1997 and 1999, both children attended private school at a cost of approximately $6,300.00 per year. Between 1999 and 2003, the debtor's son attended a private high school at a cost of about $8,900.00 per year, and since 2004 the debtor's daughter has attended a private high school at a cost of about $6,700.00 per year. In addition, the debtor has paid for his son's undergraduate education at a cost of $26,560.00 per year.[23] The April 1999 divorce decree required him to pay for his children to attend private school through high school.[24] The debtor testified, however, that he would have made these payments even without the court order.
There was also trial testimony concerning the debtor's vacations. Between 1996 and 2000, the debtor took at least three vacations with his then-girlfriend Diane Podway.[25] In December 1999, the debtor took a ten-day, trip with Ms. Podway to Hawaii at a total cost of about $5,000.00, of which Ms. Podway testified she paid between $800.00 and $1,000.00. The debtor also took trips with her to the Bahamas and Florida sometime during this period. Ms. Podway testified that she did not contribute to the cost of these trips.
THE POSITIONS OF THE PARTIES
The IRS asserts that the debtor willfully attempted to evade or defeat his tax obligations for 1997, 1998, and 1999 by concealing his ownership of the Crossbrook property and choosing to spend his money on luxuries rather than on his taxes. As a result, the IRS argues, his tax debt for *586 those years is non-dischargeable under § 523(a)(1)(C). The debtor's position is that his failure to pay taxes was not a willful attempt to evade or defeat his tax obligation, but rather the inevitable consequence of the length, complexity, and difficulty of his divorce.
DISCUSSION
11 U.S.C. § 523(a)(1)(C)
An individual chapter 7 debtor is generally entitled to a discharge of all debts that arose before the filing of the bankruptcy petition. See 11 U.S.C. § 727(b). This general rule, however, is subject to the exceptions set forth in bankruptcy code § 523. The IRS relies on the exception found in § 523(a)(1)(C), which states:
(a) A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt
(1) for a tax . . .
* * *
(C) with respect to which the debtor . . . willfully attempted in any manner to evade or defeat such tax[.]
11 U.S.C. § 523(a)(1)(C). This exception limits the discharge of tax debts to the honest, but unfortunate debtor. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). As with all exceptions to discharge, the IRS must prove that the exception applies by a preponderance of the evidence. See id. at 287-88, 111 S.Ct. 654; Stamper v. United States (In re Gardner), 360 F.3d 551, 557 (6th Cir.2004).
The inquiry into whether the debtor "willfully attempted in any manner to evade or defeat" the tax liability is divided into two elements: a conduct element and a mental state requirement. In re Gardner, 360 F.3d at 558. When determining whether the conduct element or mental state requirement has been satisfied, the totality of the debtor's conduct is considered. See, e.g., Dalton v. Internal Revenue Serv. (In re Dalton), 77 F.3d 1297, 1301 (10th Cir.1996); Myers v. Internal Revenue Serv. (In re Myers), 216 B.R. 402, 405 (6th Cir. BAP 1998), aff'd, 196 F.3d 622 (6th Cir.1999); Harris v. United States (In re Harris), 328 B.R. 837, 843 (Bankr.S.D.Ala.2005); May v. United States Internal Revenue Serv. (In re May), 247 B.R. 786, 793 (Bankr.W.D.Mo. 2000), aff'd, 251 B.R. 714 (8th Cir. BAP 2000), aff'd, 2 Fed.Appx. 681 (8th Cir. 2001).
To satisfy the conduct element, the IRS must prove that the debtor avoided or evaded the payment or collection of taxes through either acts of omission, such as failure to file returns and failure to pay taxes, or affirmative acts of evasion, such as placing assets in the name of others. See In re Gardner, 360 F.3d at 557-58; Toti v. United States (In re Toti), 24 F.3d 806, 809 (6th Cir.1994); In re Myers, 216 B.R. at 404-05. The debtor's failure to pay taxes is not in and of itself sufficient to satisfy the IRS's burden of proof, but it is a relevant consideration. In re Myers, 216 B.R. at 405. When nonpayment of taxes is combined with a pattern of failing to file returns or where the debtor otherwise attempts to conceal assets from the IRS, the totality of those circumstances can support a finding that the debtor is not entitled to a discharge. See In re Birkenstock, 87 F.3d 947, 951-52 (7th Cir.1996).
As for the mental state requirement, the IRS must, show that the debtor's attempt to avoid his tax liability was willful. Because there is rarely direct proof of a debtor's intent, intent may be proven by circumstantial evidence. See, e.g., In re Dalton, 77 F.3d at 1303-04; In re May, *587 247 B.R. at 793; Teeslink v. United States (In re Teeslink), 165 B.R. 708, 716 (Bankr. S.D.Ga.1994). For purposes of 523(a)(1)(C), the Sixth Circuit "equates `willful' with voluntary, conscious, and intentional. . . ." In re Toti, 24 F.3d at 809. Thus, "[t]he mental state requirement is proven when the debtor: `(1) had a duty to pay taxes; (2) knew he had such a duty; and (3) voluntarily and intentionally violated that duty[.]'" In re Gardner, 360 F.3d at 558 (quoting United States v. Fretz (In re Fretz), 244 F.3d 1323, 1330 (11th Cir. 2001)). "This willfulness requirement prevents the application of the exception to debtors who make inadvertent mistakes, reserving nondischargeability for those whose efforts to evade tax liability are knowing and deliberate." In re Birkenstock, 87 F.3d at 952.
The Conduct Element
The IRS proved the conduct element based on the debtor's acts of filing his tax returns late, failing to pay the taxes even though he had enough money to pay for non-necessities such as vacations and private school, and concealing his interest in the Crossbrook property. The evidence clearly showed that the debtor repeatedly failed to timely file his income tax returns and repeatedly failed to pay the, taxes assessed. While the debtor did file his 1999 tax return on time and eventually filed his 1997 and 1998 tax returns, a debtor's belated and partial compliance with the law does not nullify his initial failures to file returns and pay the liability. See, e.g., In re Myers, 216 B.R. at 405; Hassan v. United States (In re Hassan), 301 B.R. 614, 623 (S.D.Fla.2003).
In addition to omitting to file his returns and pay his taxes, the debtor also affirmatively evaded paying taxes by the manner in which he structured the Crossbrook property transaction. The overwhelming weight of the evidence showed that the transaction between Audrey Volpe and Janice Justice was a sham, and that the debtor had an ownership interest in the property.
There was no credible evidence that Audrey Volpe intended to participate in this deal as an investor. If this had truly been an investment, one would expect the facts to show such things as, for example, disposable income to invest in real estate, the ability to afford the monthly payments including the taxes, management of the investment, income received from the investment and reported to the IRS, and the election to take advantage of tax laws permitting deductions relating to such an investment. The evidence did not show any of that. Audrey Volpe, age 79 at the time of the trial, is a retired hairdresser who lives on a pension and social security and who admitted that she did not have the money to make the monthly payments if she had been required to do so. She did not keep any of the paperwork relating to the transaction, never reported the debtor's rent payments as income, and never took a mortgage interest deduction on her tax returns. Eventually, she transferred the property to the debtor for no consideration. These are not the acts of someone purchasing a house as an investment property. Audrey Volpe may well have had a sincere desire to help her son and grandchildren live in the Crossbrook house, but that does not establish that she was the purchaser in this transaction.
The debtor's conduct, on the other hand, is totally consistent with that of someone with an ownership interest in the property. He found the house and negotiated the purchase with the intent to live there with his children. He paid the utility bills, the real estate taxes, the insurance payments, and the maintenance costs. His rent equaled the monthly payments owed under *588 Audrey Volpe's note and he paid the money each month directly to Ms. Justice. Tellingly, he negotiated a refinancing that increased the monthly note payments by about $500.00, and then increased his "rent" payments to Ms. Justice by this same amount. Renters do not generally negotiate to raise their rent, which is against their economic interest. Owners, however, often renegotiate deals to lower the interest rate on their obligations. The court finds based on all of the circumstances that the debtor, and not his mother, owned this property.
By putting title to this asset in Audrey Volpe's name, the debtor prevented the IRS from placing a tax levy on the property and selling it to satisfy some of the debtor's tax debt. This is an affirmative act of evasion. See In re Gardner, 360 F.3d at 559; In re Zuhone, 88 F.3d 469, 471 (7th Cir.1996). The debtor argued that this situation should be disregarded because there was no equity in the property. First, there was no evidence to support that statement And second, the existence of equity is irrelevant to whether the debtor titled the property in his mother's name to conceal his interest in it. See United States v. Jacobs (In re Jacobs), 490 F.3d 913, 925 n. 13 (11th Cir.2007). The debtor's additional acts of filing tax returns late prevented the IRS from assessing the debtor's tax liability and thereby frustrated the collection of taxes. See In re Fretz, 244 F.3d at 1330. Taken as a whole, therefore, the court finds that these acts and omissions satisfy the conduct element of § 523(a)(1)(C). See In re Gardner, 360 F.3d at 559-60; In re Myers, 216 B.R. at 405.
The Mental State Requirement
The debtor's primary contention is that the IRS did not prove that he willfully attempted to evade or defeat his tax liability. He contends that his divorce was the sole cause of his failure to pay taxes in 1997, 1998, and 1999. As proof, the debtor relies on the fact that the years in which he foiled to pay his taxes were the same as those in which his divorce was pending. Notwithstanding the general mental and financial stress that accompanies many divorces, the IRS presented ample credible evidence in this case to satisfy the mental state requirement.
The IRS is not required to show that the debtor engaged in a fraudulent scheme to prove that he acted willfully. In re Jacobs, 490 F.3d at 925. Rather, the Sixth Circuit has defined "willfully" in this context to mean "voluntarily, consciously, and intentionally." In re Toti, 24 F.3d at 809. This translates into a requirement that the IRS must prove that the debtor (1) had a duty to pay taxes; (2) knew he had such a duty; and (3) voluntarily and intentionally violated that duty. In re Gardner, 360 F.3d at 558. The debtor stipulated to the first two elements,[26] leaving only the question of whether he voluntarily and intentionally violated his duty.
As discussed above, the IRS proved that the debtor concealed a real estate asset. Evidence that a debtor held property in another's name is relevant not only to the conduct element but also to the willfulness element. See In re Zuhone, 88 F.3d at 471; Dalton, 77 F.3d at 1302; In re Hassan, 301 B.R. at 624; see also In re Gardner, 360 F.3d at 557 (concerning concealed nominee accounts); In re Birkenstock, 87 F.3d at 952 (involving property held in trust). In an attempt to blunt the impact of the property ownership evidence, the debtor testified that his only motivation for structuring the transaction as he did was to try to keep the asset away from *589 his wife. The court does not believe, that this is the whole explanation. The debtor and his then-wife had already signed the separation agreement in which the wife disclaimed any interest in the Crossbrook property before the debtor had his mother enter into the deal with Ms. Justice.[27] The debtor did not offer any satisfactory explanation for why he feared his ex-wife could affect the transaction after that. It is, instead, far more likely that the debtor decided to put the deed in his mother's name so that he could insulate the property from an IRS levy based on his tax liability.
The IRS also proved that, at a time when the debtor admitted he had a duty to pay his tax debt, he used his money to go on vacation and pay for private school for his children. The evidence showed that the debtor spent at least $4,000.00 on a trip to Hawaii in 1999,[28] and more than $12,000.00 per year between 1997 and 1999 to send his children to private school. The debtor did not attempt to justify his vacation expenses, but merely argued, without legal citation, that taking trips during this period did not constitute a willful attempt to evade or defeat his taxes.[29] To the contrary, when the debtor used his disposable income for leisure activities, knowing that he had a significant tax liability, the debtor made a voluntary decision to spend the money on himself rather than to pay his taxes. As for the private school tuition, the debtor argued that these were not voluntary payments because the separation agreement and divorce decree required him to pay educational expenses. The debtor, however, paid these expenses for some years before he was legally obligated to do so. He then agreed to a legal commitment to continue to pay the tuition through high school in the separation agreement. There was no evidence that either child had any particular need that could not be satisfied through public education and the debtor testified that he would have paid these expenses regardless of the court order. All of this shows that the debtor undertook the tuition expenses voluntarily.[30]
The evidence showed that the debtor certainly had some money that he could have put toward his tax debt even while he was going through the divorce proceedings. The debtor's decision to spend his money on vacations and private school tuition weighs in favor of a finding that he willfully evaded his tax liability. See In re Gardner, 360 F.3d at 560-61; In re Harris, 328 B.R. at 843-5.
Finally, with respect to the debtor's intent, the court does not believe the debtor's explanation for his actions. He argued that all of his money was "tied up" in the divorce and that the divorce was extremely stressful, thus showing that he could not have made the tax payments. Divorce can certainly be difficult on multiple levels. While the domestic relations case may have caused the debtor distress, it did not affect his ability to earn well over $100,000.00 per year (and sometimes over $200,000.00 per year). Cf. In re Fretz, 244 F.3d at 1331; In re Harris, 328 B.R. at 840, 843. Moreover, in the years *590 following his divorce and before his bankruptcy, the debtor continued to earn a significant income,[31] still without repaying his tax debt. Additionally, the debtor did not offer any documents to support his conclusory statement that all of his money was "tied up" in the divorce. Simply put, this is not a case where the debtor made an inadvertent mistake in not paying his taxes. Rather, this is a case where a business savvy debtor who knew that he had an obligation to pay taxes, chose instead to ignore this duty and spend his money elsewhere, concealing a valuable real estate asset in the process. The court finds, therefore, that the debtor's failure to pay taxes for the years 1997, 1998, and 1999 was both voluntary and intentional. Consequently, the IRS satisfied its burden of proving the mental state requirement of § 523(a)(1)(C).
With both the conduct element and the mental state requirement met, the court concludes that the debtor willfully attempted to evade or defeat his tax obligations for the years 1997, 1998, and 1999, and that his tax debt for those years is non-dischargeable. See 11 U.S.C. § 523(a)(1)(C).
CONCLUSION
For the reasons stated, judgment will be entered in favor of the IRS. A separate order will be issued reflecting this decision.
JUDGMENT
For the reasons stated in the memorandum of opinion entered this same date, judgment on the complaint is entered in favor of the Internal Revenue Service. The tax debt for the years 1997, 1998, and 1998 owed by the plaintiff-debtor Arthur Volpe is determined to be non-dischargeable under 11 U.S.C. § 523(a)(1)(C).
IT IS SO ORDERED.
NOTES
[1] The debtor's bankruptcy case was filed before October 17, 2005, the effective date of most of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23. All citations are, therefore, to the bankruptcy code as it existed before that date.
[2] Docket 34.
[3] Stip, ¶ 9.
[4] Stip. ¶ 3.
[5] Complaint ¶ 6. (Docket 1).
[6] Stip. ¶¶ 4, 9; Jt. Exhs. 1, 4.
[7] Stip. ¶¶ 5, 9; Jt. Exhs. 2, 5.
[8] Stip. ¶¶ 6, 9; Jt. Exhs. 3,6.
[9] Jt. Exh. 13.
[10] Stip. ¶¶ 10, 11.
[11] Stip. ¶ 27; Jt. Exhs. 7, 13.
[12] Jt. Exh. 8.
[13] Stip. ¶ 19.
[14] Stip. ¶¶ 14, 16, 18.
[15] Stip. ¶ 17.
[16] Stip. ¶¶ 16, 18.
[17] Jt. Exh. 7.
[18] Stip. ¶ 20; Jt. Exh. 10.
[19] Adversary proceeding 05-1290, docket entry for 1/13/06.
[20] As a point of clarification, the bankruptcy case was still open, but the adversary proceeding was closed.
[21] Stip. ¶ 21; Jt. Exh. 11.
[22] Stip. ¶ 22; Jt.Exh. 12.
[23] Stip. ¶ 25.
[24] Jt. Exh. 7.
[25] Stip. ¶ 23.
[26] Stip. ¶¶ 7, 8.
[27] Stip. ¶ 27; Jt. Exhs. 7, 8.
[28] The debtor made other trips during the relevant time period, which the court considers in the totality of the debtor's conduct, but the evidence presented did not show exactly when these trips took place or how much the debtor spent on them.
[29] Debtor's trial brief at unnumbered page 8.
[30] The debtor admits that he should have taken the money he paid for his son's college education and used it to pay his taxes. These expenditures, however, occurred after the debtor filed for bankruptcy. See Stip. ¶ 25.
[31] The debtor earned $182,913.00 in 2000, $168,868.00 in 2001; $282,990.00 in 2002 and $226,756.00 in 2003. Stip. ¶ 9; Gov't Exhs. A-D. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546998/ | 159 B.R. 90 (1993)
In re Ulpiano UNANUE-CASAL a/k/a Charles Unanue, Debtor.
GOYA FOODS, INC.; Goya De Puerto Rico, Inc.; Zolmar Realty Corp.; Inter-americas Advertising; Island Can Corporation; Tradewinds Foods, Inc.; Inter-Americas Advertising Corp.; CPR International, Inc.; CPR International Limited; Condimentos De Puerto Rico, Inc.; Industrial Enterprises, Inc.; Joseph A. Unanue; Frank Unanue, Appellants,
v.
Ulpiano UNANUE-CASAL, a/k/a Charles Unanue, Debtor, and Gerardo Quiros-Lopez, Chapter 7 Trustee, Respondents.
Civ. No. 92-1796 GG, Bankruptcy No. 90-04490 (SEK), Adv. No. 91-0099.
United States District Court, D. Puerto Rico.
August 3, 1993.
*91 Michael R. Griffinger, Newark, NJ, Guillermo A. Nigaglioni, Hato Rey, PR, for appellants (Beneficiaries).
Jose Gonzalez-Irizarry, Samuel Cespedes, Arturo Garcia-Sola, Dora Penagaricano, San Juan, PR, for Goya Foods, Inc.
Jan Brody, Roseland, NJ, Antonio Hernandez, William Vidal, San Juan, PR, Alejandro Oliveras, U.S. Trustee's Office, Hato Rey, PR, Gerardo A. Quiros, Trustee, Santurce, PR, for debtor.
OPINION AND ORDER
GIERBOLINI, Chief Judge.
The Appellants' petition this court to reverse the bankruptcy court's refusal to lift the automatic stay of proceedings in the New Jersey Superior Court. The Appellee (Debtor) filed a bankruptcy petition under Chapter 7 on August 29, 1990, after litigating for almost three years in the New Jersey Superior Court. In its May 15, 1992, Opinion and Order the bankruptcy court denied relief from stay; it found the Appellant had not presented evidence of "cause" to lift the stay. We hold that the bankruptcy court erred when it found that the Appellant had not presented evidence of "cause", and thus abused its discretion when it denied relief from the stay. We, therefore, reverse the bankruptcy court's order and relief from the stay is granted.
BACKGROUND
In 1908, an ambitious and young Prudencio Unanue, like Juan el Indiano in the Zarzuela "Los Gavilanes"[1], came to this country from Spain with the intention of making himself rich. In this quest he eventually founded and organized the largest manufacturer of Hispanic foods GOYA. Don Prudencio could not have anticipated the struggle that would ensue for the wealth he created, this conflict set brother against brother and launched a historic series of litigations between them, lasting more than twenty years. After two decades of this legal warfare, with numerous cases filed by them in different jurisdictions, and after an abundance of heavy submissions, all supported by deep pockets on both sides of the controversies, we believe that if left to their natural proclivities the brothers' private war may surpass the record attained by the 100 Years War (actually 116).[2] It is through this odyssey of *92 trials that we are introduced into the lives of the Unanue's and their warring sons.
Don Prudencio and his wife, doña Carolina, were married in Puerto Rico on November 4, 1921; don Prudencio was domiciled in New York and doña Carolina was domiciled in San Lorenzo, Puerto Rico. They had four sons: Charles (or Ulpiano, the Debtor, and first born), Joseph, Anthony (deceased) and Frank Unanue. Soon after their marriage, don Prudencio returned to New York where doña Carolina joined him in 1923. By 1929, the Unanue's had moved to New Jersey where they would live and work until 1970.
On November 16, 1970, don Prudencio executed his last will and testament and a revocable inter vivos trust in New York. The trust held don Prudencio's 53 shares of voting stock for the grandchildren, who would receive their share of the corpus at a specified age.
Don Prudencio left for Puerto Rico in November, 1970, as he did habitually to avoid the effect of the winters on his arthritic body. He was never to return to New Jersey again because he suffered a stroke and was beset with a series of maladies, which sapped his vitality, until he died in 1976. Doña Carolina died in 1984, and her sister Ana Maria in 1985.
After don Prudencio's death, the Trustees (Joseph and Frank Unanue) probated, administered and distributed his will. In 1986, the Superior Court in New Jersey approved a First Accounting filed by the trustees, and contested by C. Jeffrey Unanue, one of Charles' sons. At that time, several of the Beneficiaries received their share of the trust, in accordance with the trust's provisions. See Unanue Casal v. Unanue Casal, 132 F.R.D. 146, 148 (D.N.J. 1989).
In 1969, prior to don Prudencio's death, a dispute arose between Charles (Debtor), and his brothers (Appellants). As a result of this confrontation Charles held a press conference in New York to expose and distance himself from an alleged tax evasion scheme his brothers had involved the companies in. Don Prudencio felt betrayed by Charles' actions, which humiliated the family and exposed their enterprises to tax penalties. Don Prudencio subsequently allied himself with his other sons against Charles.
From this time on, Charles has claimed that he was a victim of his brothers' conspiracy against him, but it was later determined from the testimony before Judge Kole of the New Jersey Superior Court that it was Charles' behavior that turned his brothers Joseph and Frank against him.[3] This dispute was temporarily settled on June 9, 1972, with the execution of the 1972 Agreement. Under this agreement Charles' voting shares in GOYA and the other affiliated companies were bought back for $4.5 million.
In 1973, Charles claimed the other parties to the Agreement had breached the 1972 Agreement. This embroglio was temporarily resolved by the 1974 Amendment to the 1972 Agreement, signed July 31, 1974. The 1974 Amendment, which included additional parties not in the first Agreement, was aimed at excluding Charles from don Prudencio's will and trust, and effectively exiling Charles from the family enterprises. In turn, Charles secured and accelerated the transfer of $4,300,000. in compensation. He also "promised never to bring any claim or suit ..., contesting or objecting to don Prudencio's will or trust", and not to interfere with the disposition of assets of stock by don Prudencio, his estate, the beneficiaries or his brothers.[4] The Amendment also specified that any signatory who loses a suit "concerning any matter" with another signatory has to pay the winner liquidated damages of double *93 costs and attorney's fees.[5]
In July 1987, eleven years after his father's death, Charles demanded from Joseph and Frank Unanue his share of the estates of don Prudencio, doña Carolina and Ana Maria (Carolina's sister). On August 13, 1987, Joseph and Frank, as trustees of the 1970 trust, sued Charles, in the Superior Court of New Jersey Probate part. They were seeking a declaratory judgment barring Charles from maintaining any claims against don Prudencio's estate and the inter vivos trust. Charles responded by filing an amended counterclaim on June 17, 1988, claiming the 1972 Agreement and the 1974 Amendment were invalid. In addition, he claimed a share of the trust, based upon his thesis that because his parents were married in Puerto Rico, then the trust was subjected to the conjugal partnership laws of this Commonwealth.
On August 30, 1988, Charles filed a claim in the Superior Court of Puerto Rico requesting that the 1972 Agreement and the 1974 Amendment be rescinded. This claim was consolidated with a previous 1987 action in the Superior Court of Puerto Rico seeking an inheritance from don Prudencio's, doña Carolina's and Ana Maria's estate. Finally, Charles filed a bankruptcy petition under Chapter 7 on August 29, 1990, in the District of Puerto Rico nine days before the close of the trial in New Jersey. The New Jersey proceedings were stayed contemporaneously to the filing of this Bankruptcy petition.[6]
On February 6, 1991, the bankruptcy court held the first hearing on relief from the automatic stay. In its subsequent oral Opinion of February 8, 1991, the bankruptcy court modified the stay and denied Appellants complete relief from the stay. The modification was to allow the New Jersey court to continue with its determination of don Prudencio's domicile at the time he executed his trust agreement November 16, 1970 and at his death in Puerto Rico on March 17, 1976. When it modified the stay, the bankruptcy court explained that the Appellants may never have to come to this court if the New Jersey tribunal decides domicile was in New Jersey.[7]
Judge Kole of the New Jersey Superior Court decided on December 4, 1991, after 171 days of trial, that don Prudencio was domiciled in New Jersey on the dates in controversy. Appellants, then, filed a second motion for further relief from the stay of the New Jersey proceeding. The bankruptcy court in its May 15, 1992, Opinion again denied relief from the stay, this time because it found the appellant failed to present evidence of "cause" to do so. We heard the arguments on appeal, and requested supplementary briefing from the parties on the issue of "for cause".
STANDARD OF REVIEW
We now address the standards of review that we must apply to the decision of the bankruptcy court. Findings of facts are reviewed under the clearly erroneous standard. In Re Kerns, 111 B.R. 777, 781 (S.D.Ind.1990), citing In Re Excalibur Auto Corp., 859 F.2d 454, 457, n. 3 (7th Cir.1988). "Clearly erroneous" is interpreted to mean that a reviewing court can upset a finding of fact, even if there is evidence to support the finding, only if the court is left with "the definite and firm conviction that a mistake has been committed." U.S. v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Graham v. Lennington, 74 B.R. 963, 965 (S.D.Ind.1987).
"Ultimate facts", or mixed questions of fact and law, are also tested in the First Circuit under the "clearly erroneous" standard. U.S. v. Cochrane, 896 F.2d 635, 639 (1st Cir.1990). The reviewing court may, however, "look carefully" to discover *94 if the court based its findings upon incorrect legal principles. Id.; See also Sweeney v. Board of Trustees, 604 F.2d 106, 109 (1st Cir.1979). "If the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard." Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855, n. 15, 102 S.Ct. 2182, 2189, n. 15, 72 L.Ed.2d 606 (1982). The bankruptcy court's conclusion on the issue of cause is such an ultimate fact. Kerns, 111 B.R. at 782 ("The question of whether "cause" has been shown ... does not appear to be one of unfettered discretion. Rather this would seem to be a mixed question of law and fact to be resolved based on the evidence produced by the parties, and guided by the exercise of the court's discretion.").
Most appeals from bankruptcy courts' decisions on relief from stay have reviewed the trial court for an abuse of discretion. In re Holtkamp, 669 F.2d 505, 507 (7th Cir.1982). However, as Kerns, 111 B.R. at 782, points out from its reading of § 362(d): "a review of the actual statutory language suggests that the matter may not be one of total discretion."[8] Section 362(d) directs the court to grant relief from the stay for cause by using the word "shall." Id. "Thus, where cause is found to exist, the courts have no discretion to deny relief." Id.
Kerns concludes its analysis by proposing a 3-pronged standard, which we adopt:
"(1) The question of whether cause exists is a separate inquiry dependent upon the facts as adduced at the hearing and guided by the trial court's discretion; (2) that where cause does exist, relief must be granted; (3) and that, in fashioning the grant of relief, the trial court has full discretion." Id. As in Kerns, we have not modified prior law, but hopefully merely made it clearer.
It seems to us that the court below based its decision upon an incomplete version of the burden of proof standard and the law of "for cause". See infra. Therefore, with due deference, we find the bankruptcy court did not exercise its discretion reasonably in guiding the inquiry on the question of cause, and when it subsequently denied relief from the stay once cause was established.
BURDEN OF PROOF
Section 362(g) allocates the burden of proof in motions seeking relief from stay. It provides as follows:
"(g) In any hearing under subsection (d) or (e) of this section concerning relief from the stay of any act under subsection (a) of this section
(1) the party requesting such relief has the burden of proof on the issue of the debtors equity in property; and
(2) the party opposing such relief has the burden of proof on all other issues." 11 U.S.C. § 362(g).
Most cases have interpreted the same section as requiring that the party moving for relief must meet the "initial burden to come forward with [prima facie] evidence showing that cause existed."[9]In Re Unioil, 54 B.R. 192, 194 (Bankr.D.Colo. 1985). Accordingly, it is necessary to clarify the concept of "prima facie" evidence. Prima facie evidence is "evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence. An inference or presumption of, affirmative or negative of a fact, in the absence of proof or until proof can be *95 obtained or produced to overcome the inference." Blacks Law Dictionary p. 1071 (5th Ed.1979). See also In Re Planned Systems, Inc., 78 B.R. 852, 860 (Bankr. S.D.Ohio 1987); In Re Stranahan Gear Co., 67 B.R. 834, 836 (Bankr.E.D.Pa.1986). With the above in mind, we find that Appellants' arguments referred to sufficient evidence to meet a "prima facie" burden of proof. If the above analysis was not employed, it explains why the court below declined to find cause.
The weight of authority explains that once the moving party establishes cause for such relief, a [stricter] burden then shifts to the debtor to demonstrate that he is entitled to the stay. Unioil, 54 B.R. at 194; See also In Re Setzer, 47 B.R. 340, 345 (B.C.E.D.N.Y.1985); Accord, 2 Collier on Bankruptcy, ¶ 362.10 (1988) (the Code requires a showing of cause by the movant under § 362(d)(1), and then § 362(g) places a burden of proof or "risk of non-persuasion" on the party opposing relief.).
The Debtor's evidence was not mentioned by the court below, presumably because it had decided the Appellants had not met their burden. This was clear error.
THE LAW OF "FOR CAUSE"
Most cases have acknowledged that the term "cause" is not defined in the statute. Thus, some cases have turned to the legislative intent to determine the meaning of § 362(d)(1). Kerns 111 B.R. at 786; See also In Re Sonnax Industries, Inc., 907 F.2d 1280, 1286 (2nd Cir.1990).
The most express guidance is that cause can include the lack of adequate protection of an interest in property. Supra, n. 5. Additional scenarios put forth by Congress are a "lack of any connection with or interference with the pending bankruptcy case ... proceedings in which the debtor is a fiduciary, or involving post-petition activities of the debtor ... because they bear no relationship to the purpose of the automatic stay, which is protection of the debtor and his estate from his creditor." Sonnax, 907 F.2d at 1286, quoting S.Rep. No. 989, 95th Cong., 2d Sess. 52, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5838. The policy propelling the law of the automatic stay is "to give the debtor a breathing spell from his creditors." Kerns, 111 B.R. at 788, quoting S.Rep. No. 95-989, reprinted, in 1978 U.S.Code Cong. & Admin.News 5840. See also In re Pro Football Weekly Inc., 60 B.R. 824, 826 (N.D.Ill.1986) ("It will often be more appropriate to permit proceedings to continue in their place of origin, when no great prejudice to the bankruptcy estate would result, in order to leave the parties in their chosen forum and to relieve the bankruptcy court from many duties that may be handled elsewhere.").
In Re Curtis, 40 B.R. 795, 799-800 (Bankr.D.Utah 1984), summarized the jurisprudence, and found [12] factors courts considered when they determined if the stay should be lifted, or continued. They are the following: (1) whether the relief will result in a partial or complete resolution of the issues; (2) the lack of any connection with or interference with the bankruptcy case; (3) whether the foreign proceeding involves the debtor as fiduciary; (4) whether a specialized tribunal has been established to hear the particular cause of action and that tribunal has the expertise to hear such cases; (5) whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) whether litigation in another forum would prejudice the interest of other creditors, the creditors' committee and other interested parties; (8) whether the judgment claim arising from the foreign action is subject to equitable subordination under section 510(c); (9) whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor; (10) the interest of judicial economy and the expeditious and economical determination of litigation for the parties; (11) whether the foreign proceedings have progressed to the point where the parties are prepared for *96 trial; (12) the impact of the stay on the parties and the "balance of hurt". Id.
Some courts have also considered the misconduct of the debtor or dilatory "forum shopping" tactics in deciding whether to lift the stay. In re Laventhol & Horwath, 139 B.R. 109, 117 (S.D.N.Y.1992); In re Hohol, 141 B.R. 293, 299 (M.D.Pa.1992); In re Dixie Broadcasting, Inc., 871 F.2d 1023, 1026-27 (11th Cir.1989); In re Tucson Estates, 912 F.2d 1162, 1169 (9th Cir. 1990); In Re Highcrest Management Co., 30 B.R. 776, 779 (B.C.S.D.N.Y.1983).
Finally, in Pro Football Weekly, Inc., 60 B.R. at 824, the court considered as part of its 3-pronged test to lift the stay, whether the creditor has a probability of prevailing on the merits of his case.
The moving party appellant need not prove a plurality of Curtis factors or any other factors before it has shown cause existed for lifting the stay. Generally, courts have relied on only a few factors, and one court has used only one non-Curtis factor, to determine that sufficient cause existed to lift the stay. See, e.g., Unioil, 54 B.R. at 194-95. (court considered five factors such as resolution of the issues, lack of connection with the bankruptcy case, judicial economy and balance of hurt). See also Highcrest Management Co., 30 B.R. at 778-779 (court considered only the debtor's misconduct, without any Curtis factors). Broadhurst v. Steamtronics Corp., 48 B.R. 801, 802-803 (D.Conn.1985) (The court considered the expected prompt resolution of the state court proceeding, a showing of no prejudice to the debtor, and the presence of state law issues, which would not interfere with the bankruptcy case).
The bankruptcy court correctly stated that "the question of what is cause ... is developed primarily by case law."[10] We agree, and turn now to consider the Curtis factors in this case, as well as any of the other factors that apply, to determine if the Appellants met their burden of presenting [prima facie] evidence of cause.
A. Judicial economy
The Appellants argue that judicial economy would be best served by concluding the New Jersey proceedings. More specifically, the Appellants claim that the New Jersey proceeding has "sufficiently advanced" to a point that it would be a waste of judicial resources to begin proceedings on the "remaining issues" before another court.
Appellants want us to determine that Judge Kole's decision on domicile was part of the "unitary action" to resolve the inheritance conflict between the Unanue brothers and thereafter distribute the trust. In other words, the issue of domicile should not be divorced substantively from the other issues pending in New Jersey. In support, they aver that Judge Kole's decision on domicile progressed beyond the issue of domicile into other areas that would be conducive to the resolution of the "remaining issues." Thus, they ask this court to reserve the scant resources of the judiciary, both here in bankruptcy court and in New Jersey, by lifting the stay, and allowing the New Jersey proceedings to continue to resolution in a quicker and more orderly manner.[11] Finally, they argue that only the New Jersey court has the expertise to deal with state law issues of probate law. We agree with Appellants.
We now turn to determine if Appellants met their burden of a "prima facie" showing of cause. In its "oral" Opinion of February 8, 1991, subsumed in the subsequent written Opinion of May 15, 1992, the bankruptcy court allowed the stay to be modified for the New Jersey court to determine don Prudencio's domicile.[12] The bankruptcy court remarked, correctly I think, that if the New Jersey court finds don Prudencio's domicile was in New Jersey, *97 then "you [Appellants] may never have to come here" and "that may be the end of that".[13] Without further articulation or clarification, this remark can be taken to mean that the court believed the proceedings in New Jersey should continue if don Prudencio's domicile was found to be there. This is precisely why Judge Kole was assigned to decide the issue of domicile. Notwithstanding, the bankruptcy court denied further relief and maintained the stay in effect. On this point, our reasoning parts company with the court below.
The bankruptcy court discerned a separation between the issue of domicile, and Charles' claims. Under this imposed dichotomy, the issue of domicile is perceived as a separate and distinct issue from the rest of the claims before the New Jersey court. This separation of the issues is a legal determination permitting plenary review. We find that this legal determination was erroneous, and that the finding of domicile should not have been divorced from the "remaining issues". Therefore, we find that the litigation in New Jersey will conserve the limited judicial resources in the bankruptcy court.
We explain. The determination of don Prudencio's domicile is fundamental to Charles' claims before the New Jersey court. The purpose of resolving the domicile issue was to determine if Charles had a feasible claim to challenge the trust. Accordingly, this finding of domicile permitted the New Jersey court to determine what law would be applied to the dispute, and thus whether Puerto Rico or New Jersey would be the better forum. In fact, this is the reason the Superior Court in Puerto Rico also stayed its proceedings.[14] Therefore, once domicile was adjudged to be in New Jersey, then the most reasonable deduction is that the New Jersey court should continue to resolve this dispute.
The bankruptcy court also found the Appellant's argument, that the New Jersey court went further than the issue of domicile and thus contributed to the resolution of the "remaining issues", to be without merit. In our review, we found that Judge Kole only slightly deviated from the issue of domicile when he entertained testimony from Charles about an alleged conspiracy to remove him from the corporation and disinherit him. We agree with the bankruptcy court on this factual finding only, but not with its conclusion.
If we were to approach this analysis from the bankruptcy court's perspective, that the issue of domicile is a separate event from the New Jersey proceedings, then it would be easy to understand why the bankruptcy court arrived at its conclusion. However, since we disagree with the court's dissection of the New Jersey proceeding, once domicile was found to be there, we find that Judge Kole's undertaking does contribute to the New Jersey proceeding. Furthermore, even if we accept the premise that the discovery surrounding the issue of domicile will not exactly duplicate the discovery on the remaining issues, we cannot disregard the reasonable inference, asserted by Appellants, that the New Jersey court's trial on the domicile issue has given that jurisdiction an advanced preparation to resolve this dispute. For example, Judge Kole, after [171] days of trial, assessed the credibility of witnesses, and heard testimony on the circumstances encompassing the trust, as well as the detailed chronicles of the family's histories and rivalries. We believe the bankruptcy court understood this when it expressed that the discovery elicited in New Jersey can be used in any appropriate forum.[15] The bankruptcy court stated that no discovery has been initiated on the remaining issues, but this, in our view, is the product of the stay which has been in effect for three years.
We are persuaded that the New Jersey court advanced the resolution of the case, regardless of the fact that the court only slightly diverged from the issue of domicile. *98 Therefore, continuing this case in New Jersey would serve the interests of preserving judicial resources.
Finally, the Appellants' claim that New Jersey is a more suitable forum because the issues before the New Jersey state court are mostly state law probate matters. However, the bankruptcy court ruled that Appellants did not present any evidence to show the New Jersey court had any special advantage or familiarity with the issues raised by Charles.[16]
That point is not well taken. The New Jersey court examined the family's history from the date don Prudencio arrived in the United States to don Prudencio's death in 1976. In addition the New Jersey Court is fully acquainted with the whole situation. It spent [171] days in trial, with [32] witnesses and [600] exhibits marked into evidence.[17] Finally, it seems to us incontrovertible that a State court has more expertise and is more familiar with its own probate and contract laws than a Federal bankruptcy court. Cf. In re White, 851 F.2d 170, 173-174 (6th Cir.1988) (lifting of stay affirmed because family law matters are state law issues best left to the State courts to resolve). It should be noted that the New Jersey Superior court already administered and distributed don Prudencio's will and part of the Trust. Unanue Casal, 132 F.R.D. at 148.
Several courts have found sufficient cause to lift a stay upon similar facts. In Pursifull v. Eakin, 814 F.2d 1501, 1506 (10th Cir.1987), the court of appeals found that there was sufficient cause for lifting of the stay based upon the trial court's determination that the state court proceeding was related to property located in the state, and thus a state issue which would be best decided by the state court. The state claim was filed about two and half months before the bankruptcy petition. In In re Brown, 951 F.2d 564, 570 (3rd Cir. 1991), the court found that the stay should have been lifted on all issues, including issues not yet resolved by the state court, because the state court was familiar with the background of the case, and had explored some of the facets that bear on the remaining issues of foreclosure. The state court had decided a summary judgment motion on the issue of foreclosure, but had not made a decision on the losing party's claim that the bank had not adequately accounted for the proceeds of a liquidation sale. Id. at 570. The court also relied on the following policy statement: "we [cannot] overlook the importance of the flood of litigation pouring in on the bankruptcy courts, a development that requires that they carefully husband their resources." Id. at 570. See also In re Saunders, 103 B.R. 298, 299 (B.C.N.D.Fl.1989) (The court allowed the stay to be lifted on the state proceeding that had begun almost two years before the filing of the bankruptcy petition. The court also found that judicial economy was served because the court "could perceive no rationale for curtailing" the efforts of two years in court only for the court to retrace the same path.)
Don Prudencio's estate and trust, which expressly state that they are governed by New Jersey law, have been administered in New Jersey, where all of his assets are based. In addition, the New Jersey proceeding has been pending for five years, and was stayed in part for two of those five years awaiting the resolution of don Prudencio's domicile. We are at a loss to understand why the bankruptcy court allowed the stay to be lifted in the first place for one issue only domicile and then denied relief on the other claims after domicile was decided in favor of New Jersey.
Therefore, we find that the issue of domicile was a key determination in the New Jersey proceeding, which has significantly advanced that proceeding so that in the interests of judicial economy it should be allowed to continue, and the stay subsequently lifted.[18]
*99 B. Lack of any connection with or interference with the Bankruptcy case
This issue was not addressed in the bankruptcy court's May 15, 1992, Opinion, therefore, we will consider the Appellants' arguments, and determine if there is cause to lift the stay.[19]
The Appellants argue that the New Jersey proceeding does not affect the administration of the estate because 1) the nature of the New Jersey litigation is to determine the parties' rights and the validity of the 1972 and 1974 contracts, which is declaratory in nature; 2) the claims against the Debtor are contingent claims which were pending before he filed his petition; 3) and the continuation of the New Jersey trial will help resolve the Bankruptcy case by determining what property is to be included in the Debtor's estate. Then, the bankruptcy court can proceed to exercise its jurisdiction over the property. Moreover, any award of fees against the Debtor could not be enforced without the proper proceedings in bankruptcy court. See In re White, 851 F.2d at 173-174 (the court of appeals affirmed the district and bankruptcy courts lifting of the stay to allow a divorce suit to continue in order to decide what property belongs to whom); See also Unioil, 54 B.R. at 195; and Tucson Estates, 912 F.2d at 1169 (both these cases allow the state court litigation to proceed to determine the parties' liability while reserving judgment for the bankruptcy court).
We are persuaded by Appellants' argument that a resolution of the New Jersey proceedings would advance the settlement of the Bankruptcy case without interfering with it. If, for example, the decision came down in favor of the Debtor, he would then have available substantial funds with which to satisfy his creditors. If he were to lose in New Jersey then the Debtor would have a declaration against him under the 1974 Amendment for attorney's fees no small sum and a declaration that his inheritance claims were unconvincing. Both of these possible outcomes would promote the bankruptcy proceeding because they would determine if the Debtor would have additional funds or an additional debt. Neither of these proceedings would interfere with the estate because they are declaratory in nature and could not be acted upon without the proper proceedings in bankruptcy court.
The Appellants also contend that the Debtor's petition is not sincere. They allege, and the Debtor does not rebut, that he has no dischargeable debts at present, and that his wife, Liliana, has now purchased almost all of the non-insider, noncontingent claims against him. She has also waived any right to repayment from the estate. "Indeed, there was no legitimate reason for this Debtor to file Bankruptcy". Appellants Br., Oct. 28, 1992, at 8, Civ. No. 92-1796 (GG). It appears to be common knowledge that the Debtor is not bankrupt. Yet, the Debtor's true financial worth has remained a mysteriously shrouded fact.[20] Therefore, any interference with the Bankruptcy proceeding by lifting the stay would be irrelevant because the Debtor does not need the protection of the bankruptcy court.
We are persuaded the Appellants have presented prima facie evidence that the resolution of this case in New Jersey would not interfere with the bankruptcy proceedings. On the other hand, the Debtor has failed to present any evidence to show that the administration of his estate would be affected.
Therefore, we find that the New Jersey proceeding does not bear a significant relationship *100 to the purpose of the automatic stay, and that lifting the stay would not interfere with the bankruptcy proceedings or the Debtor's estate.
C. Balance of hurt
This is the last Curtis factor that applies to this case. The bankruptcy court found in its February 8, 1991, Opinion and Order that Goya and the Beneficiaries of the trust were not prejudiced in any way greater by the automatic stay because the parties were already stayed by Judge Leseman's Order in New Jersey Probate court.[21] Additionally, the bankruptcy court did not accept Appellants' assertion that a "cloud" over the stock ownership of Goya was a prejudice to them. The bankruptcy court also found that continuing the stay would not affect the corporation's ordinary business, nor will it lessen the time it will take to finally resolve the remaining issues.[22]
As to the latter finding, we can understand how the court arrived at this conclusion given its premise that allowing the New Jersey court to continue will not advance the resolution of this matter. However, in our discussion above we disposed of this premise. We find there is prejudice to the Appellants because without the stay they could return sooner to New Jersey and resolve the remaining issues. In fact, this is why Judge Leseman imposed his stay. In his Order of December 7, 1987, Judge Leseman instructed the parties that the trust is to be left intact until the challenges to it are resolved.[23] Therefore, until the stay is lifted the New Jersey court cannot continue and decide the issues presented to it.
The bankruptcy court acknowledged that Appellants were prejudiced by the stay, but it found that lifting the stay would not alleviate the prejudice. Specifically, the bankruptcy court assumed that Appellants GOYA could continue with their business as usual. This inference misses the point Appellants were making. Appellants would no doubt accept that GOYA can continue on its business as usual manufacturing and preparing hispanic foods and condiments. Their argument is that the "cloud" over the ownership is prejudicial. Unless this assertion is clearly spurious, it must be weighed against the Debtor's evidence of prejudice. An elementary deduction from an understanding of corporations would lead one to the conclusion that a "cloud" over the stock ownership of any business can be a problem. Therefore, the suspension of the proceedings in New Jersey prejudices the Appellants' business. We do not need to determine to what extent the Appellants are actually prejudiced, instead we will consider the Debtor's prejudice and weigh them against each other.
In Debtor's brief opposing the lifting of the stay on Appeal, the Debtor argued he suffered the following prejudice: 1) It would be too difficult and costly for him to defend himself against Goya in three different forums (he mentions he could spend the rest of his life in the courts; maybe he meant that he intended to litigate the inheritance for the rest of his life) and; 2) the Trustee would be unable to attend the proceedings in New Jersey because he has a law practice in Puerto Rico.[24] The bankruptcy court addresses the latter argument, and finds that for this reason the "continuance of suits in New Jersey is neither convenient nor economical".[25] We assume there was evidence to support these findings, however, this evidence was not mentioned in the bankruptcy court's Opinion and Order.
We understand it would be expensive for the Debtor to litigate in New Jersey, and Puerto Rico. Nevertheless, it was the Debtor who challenged the trust, and thus *101 initiated this series of litigations in the Puerto Rico Superior court, the Puerto Rico bankruptcy court and the New Jersey Superior court.[26] He has demonstrated no problems hiring numerous lawyers and law firms for all of his suits. Any prejudice from these circumstances is self-inflicted. It is the Judicial system and its scarce resources that is most prejudiced by the Debtor's suspect claims aimed at avenging his ouster from the family's businesses.
In conclusion, we find the Appellants are suffering a greater harm than the Debtor as a result of the stay, and thus the balance tips in Appellants' favor to lift the stay.
D. Misconduct of the Debtor
"Although, there is no precise test for determining bad faith, courts have recognized factors which show an `intent to abuse the judicial process'...." Dixie Broadcasting, Inc., 871 F.2d at 1027, quoting In re Natural Land, Corp., 825 F.2d 296, 298 (11th Cir.1987). For example, courts have considered the timing of the filing of petition, Natural Land at 298; "whether the debtor is `financially distressed'," In re Waldron, 785 F.2d 936, 939 (11th Cir.1986); or whether the debtor was trying to circumvent the non-bankruptcy litigation and avoid an unfavorable state court's judgment. Laventhol & Horwath, 139 B.R. at 117.
To illustrate, in Laventhol & Horwath, the court found it an improper manipulation of the federal judicial system for the debtor to file bankruptcy in New York, after a four year trial in a North Carolina District Court. The court suspected the debtor was removing himself because of an unfavorable decision from the Judge. Id. In Hohol, 141 B.R. at 299, the court lifted the stay because it found that the debtor filed bankruptcy when the proceedings in state court were going against him. In Tucson Estates, 912 F.2d at 1169, the debtor delayed filing bankruptcy until the sixth year of litigation in state court when a summary judgment came down against him. The court commented that the debtor's action "suggests that the filing's purpose was to avoid an unfavorable state court judgment." Id.
Finally, in Dixie Broadcasting, Inc., 871 F.2d at 1026-27, the 11th Circuit Court of Appeals affirmed the bankruptcy court's lifting of the stay because the debtor filed bankruptcy in bad faith. The debtor, who was in good financial health, filed a bankruptcy petition during the lunch recess of a court ordered settlement negotiation. Id.
The Debtor, Charles Unanue, filed his petition for bankruptcy on August 29, 1990; about one week before the last trial day, scheduled for September 7, 1990, before Judge Kole. The Appellants claim that the Debtor, who was present in New Jersey during the trial until September 7, neither objected to the proceedings nor did he inform the Appellants of his Bankruptcy petition. These circumstances closely resemble those cases that found the Debtor had filed bankruptcy in bad faith to avoid the effect of an impending decision. The bankruptcy court, however, found that the Debtor's motions for removal from the New Jersey Superior court were merely his efforts to have his case heard in Puerto Rico.[27]
We can agree with the bankruptcy court that the Debtor was in a predicament, but we cannot agree it is the responsibility of *102 the judicial system to accommodate him. Moreover, we cannot overlook the closeness to the end of trial in New Jersey that the debtor filed his bankruptcy petition; it has every appearance of being the sole result of the Debtor's or his attorney's perceptions that he was going to lose in New Jersey. We cannot turn our backs on this manipulation of the judicial system. There is also evidence that the Debtor's petition for bankruptcy is a sham, because he is not "financially distressed". See discussion supra part B. We are convinced the Debtor acted in bad faith when he filed for bankruptcy. Any other interpretation of the circumstances surrounding the Debtor's Bankruptcy petition was clearly erroneous.
CONCLUSION
The Appellants presented an abundance of evidence, which was sufficient to find cause for the lifting of the stay. We reiterate that, because of the bankruptcy court's defective legal standard, we need not have reviewed the court's opinion under the clearly erroneous standard. Nevertheless, we find the bankruptcy court's conclusion, that the Appellants did not meet their burden of proof for cause, was clearly erroneous. Consequently, the bankruptcy court did not exercise its discretion reasonably in guiding the inquiry on the question of cause, and when it subsequently denied relief from the stay once cause was established.
Therefore, the bankruptcy court's decision not to lift the stay on the New Jersey proceedings is hereby REVERSED. The stay is hereby lifted and the litigation pending in New Jersey will proceed. Judgment will be issued accordingly.
SO ORDERED.
NOTES
[1] A Zarzuela is a Spanish musical, in which the performers both sing and speak.
[2] We are referring, of course, to the war between France and England lasting from 1337 to 1453. The conflict's turning point was Joan of Arc's victorious rallying of the French to expel the English from France. Unfortunately, she was later captured, found guilty of heresy and burned alive by the English.
[3] Judge Kole's Op., Dec. 4, 1991; R. on Appeal, Volume VI, # 53, at 106.
[4] Id. at 109-110.
[5] Mot. for Relief from Stay, Nov. 6, 1990; R. on Appeal, Vol. I, # 2, at 9. See also, 1974 Amendment, Article VIII, Section 8.01; R. on Appeal Vol. V-A, # 2, at 45.
[6] See 11 U.S.C. § 362(a): "Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, ... operates as a stay....."
[7] Op. & Order Den. Mot. to Lift Stay at 8, 11. 11-14.
[8] 11 U.S.C. § 362(d):
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying or conditioning such stay
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
(2) with respect to a stay of an act against property under subsection (a) of this section, if
(A) the debtor does not have equity in such property; and
(B) such property is not necessary to an effective reorganization.
[9] See Op. & Order, May 15, 1992, at 10, 11. 16-26.
[10] Op. & Order, May 15, 1992, at 11, 11. 8-10.
[11] Appellants also argue that the court should abstain from deciding the "remaining issues". We will not address the abstention argument here since this is issue is before Judge Cerezo on appeal. See In re Ulpiano Unanue-Casal, Civ. No. 92-2909(CC).
[12] Op. & Order, Feb. 8, 1991, at 12, 11. 14-15.
[13] Id. at 8, 11. 12-13.
[14] Resolution of Judge Wilfredo Alicea, March 8, 1989; R. on Appeal, Volume VI, Ex. 10.
[15] Op. & Order May 15, 1992, at 17-18.
[16] Id. at 15, 11. 9-19.
[17] Mot. for Relief from Stay, Nov. 6, 1990; R. on Appeal, Vol. I, Ex. 2, at 11.
[18] It is not necessary to discuss another Curtis factor which applies to this case. Namely, whether the New Jersey proceedings have progressed to the point where the parties are prepared for trial. We conclude that the intensive proceedings in New Jersey are equivalent to a trial. See supra text accompanying note 15.
[19] Mot. for Relief from Stay, Nov. 6, 1990; R. on Appeal Vol. I at 21-23.
[20] At the hearing on Appeal of October 2, 1992, I asked Appellants why this case was in bankruptcy court. Appellants responded that the Debtor's were generally trying to avoid the issues before the New Jersey court. The Debtor rebutted with the bankruptcy court's finding of no misconduct, which was based upon Charles' desire to litigate in Puerto Rico. The Debtor's reply did little to reassure the court, or otherwise clear the mists of doubt and suspicion surrounding his bankruptcy petition.
[21] See R. on Appeal, Vol. II, Ex. 7 & 8.
[22] Op. and Order Feb. 8, 1991, at 11, 11. 6-11.
[23] Judge Leseman Oral Op. Superior Court of N.J. at 9, 11. 8-11; R. on Appeal, Vol. II, Ex. 7 & 8.
[24] Debtor's Br. October 28, 1992, Civil No. 92-1796.
[25] Op. & Order May 15, 1992, at 18, 11. 8-9.
[26] We understand that technically Appellants, Joseph and Frank Unanue as trustees of the trust, filed the declaratory action against the Debtor, on August 13, 1987, in the Probate part of the Superior Court of New Jersey. However, the Debtor was fully aware that the 1974 Amendment proscribed him from making any claims against don Prudencio's estate, and that his efforts to do so could, if he lost, subject him to liquidated damages. Therefore, we consider the Debtor to have "initiated" the litigation in New Jersey.
[27] The Appellants informed the bankruptcy court in their brief of the Debtor's many attempts to remove the case to Puerto Rico. The Debtor tried to remove both to a district court in New Jersey and to this district court in Puerto Rico. He was sanctioned by both District Courts under F.R.C.P. 11, and a $16,011.15 sanction was assessed against him. (R. on Appeal Vol. 1, Ex. 33A at 10, n. 7) See Unanue-Casal v. Unanue-Casal, 898 F.2d 839 (1st Cir.1990); See also Unanue Casal v. Unanue Casal, 132 F.R.D. 146 (D.C.N.J.1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919324/ | 912 So. 2d 837 (2005)
JEFFERSON DAVIS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Irene Carter, Nadine Thompson, Roger Dampier, Ollie Johnson and Billie Jean Page, Individually and in their Official Capacities as Members of the Jefferson Davis County Democratic Executive Committee
v.
John William DAVIES.
No. 2003-EC-02262-SCT.
Supreme Court of Mississippi.
March 17, 2005.
*838 Charles E. Miller, McComb, attorney for appellants.
William Heath Hillman, Hattiesburg, attorney for appellee.
EN BANC.
COBB, Presiding Justice, for the Court.
¶ 1. John William Davies received a majority of the votes in the second Democratic Party primary election for Jefferson Davis County Chancery Clerk. Following the election, the Jefferson Davis County Democratic Executive Committee decided to hold a new primary election for that position, based upon the discovery of improperly executed absentee ballots, improperly delivered absentee ballots, and differences between the number of signatures and ballots cast. Davies challenged the Executive Committee's decision, and pursuant to Miss.Code Ann. § 23-15-929, Sixth Circuit Court Judge Forrest A. Johnson was appointed to hear the challenge.[1] Although he held that violations of the election code did occur, he found that they were technical violations and irregularities which were done without fraudulent intent to help any particular candidate and were not substantial enough to warrant *839 a new election. The Executive Committee appeals, alleging that the trial court: (1) did not have jurisdiction to hear the case because Davies failed to comply with Miss.Code Ann. § 23-15-927, and (2) it was error to hold that the violations did not warrant a new election. Finding no reversible error, we affirm the trial court's judgment.
FACTS
¶ 2. On August 26, 2003, a second Democratic primary election occurred in Jefferson Davis County. There were two candidates for the Chancery Clerk nomination, Davies and Yvon Norwood. The initial count of the ballots revealed that Davies received 2,784 votes and Norwood received 2,750. On August 27, 2003, the Jefferson Davis County Democratic Executive Committee timely met pursuant to Miss.Code Ann. § 23-15-597 to canvass the returns and announce the winner of the various races.[2] The Committee, at the request of Norwood and over the objection of Davies, conducted a "courtesy re-count" for Norwood that confirmed the initial count of the Chancery Clerk's race. The Committee announced the results of all other races, but refused to announce the name of the nominee in the Chancery Clerk's race due to "irregularities" in the voting process. The Committee met again two days later to further discuss the Chancery Clerk's race and again refused to declare the result and announce the name of the nominee in that race.
¶ 3. Norwood then requested to have all the ballot boxes examined pursuant to Miss.Code Ann. § 23-15-911.[3] On September 3, the Committee approved Norwood's request and began examining the ballot boxes again. The Committee finished that full examination on September 8, 2003. As a result of the examination, Davies received 2785 votes (a gain of one) and Norwood 2756 (a gain of six).[4] In addition, the Committee identified numerous election code violations, including thirty-seven absentee ballots that had not been signed across the flap,[5] thirteen absentee ballots that were delivered in a bulk package to the local nursing home for the residents named on a list provided to the circuit clerk's office by the social worker at the nursing home,[6] one absentee application with the date not matching the envelope,[7] three absentee applications not signed,[8] and one absentee ballot with no application.[9] There were also five precincts *840 where the number of signatures in the sign-in book did not correspond with the number of ballots cast.[10] According to the testimony of Irene Carter, Chairwoman of the Jefferson Davis County Democratic Executive Committee, the absentee ballots were not rejected as required by statute before counting began.[11] Instead, the illegal absentee ballots were taken out of their envelopes, placed with the election day ballots, and counted. The Committee made a separate list for each category of violation, but it only noted the precinct name and the number of improper ballots. Only these lists were admitted into evidence, and there was no way to determine whether some absentee ballots might have been listed multiple times due to multiple infractions on one ballot. Thus, Carter acknowledged that it was impossible during the examination to separate and reject the illegal absentee ballots. There was, however, undisputed testimony regarding the precinct by precinct vote count. Even if every one of the ballots shown on the Committee's lists were subtracted from Davies's count, precinct by precinct, there would be no change in the outcome of any box.
¶ 4. On September 15, 2003, the Committee informed the State of Mississippi Democratic Executive Committee that due to the discovered violations, a new county-wide election for the Chancery Clerk nominee would be held. Davies then filed a Petition for Writ of Mandamus, for Injunctive Relief and Other Relief As Provided By Statute and for Expedited Hearing in the Jefferson Davis County Circuit Court, pursuant to Miss.Code Ann. §§ 23-15-593[12] and 23-15-927.[13]
*841 ¶ 5. The hearing before Judge Johnson and the Jefferson Davis County Election Commissioners occurred on October 3, 2003. Initially, the Committee moved to dismiss Davies's appeal for lack of jurisdiction due to Davies's failure to comply with certain requirements of Miss.Code Ann. § 23-15-927. The Committee argued that (1) his petition was not notarized, (2) he had not paid the required $300 bond, and (3) the two attorneys who provided the statutorily required certificates attesting to the validity of Davies's appeal did not conduct an adequate investigation. Judge Johnson permitted Davies to amend his petition by verifying it under oath during testimony and took the Committee's motion to dismiss under advisement. At the end of the proceeding, Judge Johnson denied the motion. Those who testified during the proceeding were Davies, four members of the Committee, Assistant Attorney General Phil Carter, and Jefferson Davis County Circuit Clerk Cecil Anderson. At the close of testimony, Judge Johnson reversed the decision of the Committee and stated:
From this evidence, the Court finds that no illegal votes were cast for either candidate. Therefore, it was not enough to change the results. The Court finds that no votes were disqualified from the evidence. Therefore, [it] is not impossible to determine the will of the voters. The Court does not condone any irregularities or violations which are not right no matter how long they have been going on. They were technical. They were not with fraudulent intent to help any particular candidate. . . . The Court finds that in the disqualification of illegal votes in this case does not change the results of this election. The Court finds that the irregularities in question were not substantial enough to warrant a new election based upon the facts and circumstances in this particular case considering the alleged irregularities or violations discovered.
After making his findings, Judge Johnson polled the Jefferson Davis County Election Commissioners, who pursuant to § 23-15-931 had been serving as advisors to the judge during the proceeding. Commissioners Betty Jo Davis, O'Neal Hathorn and Ralph McNease concurred with the judge's findings of fact and ruling, and Commissioner Shirley Williams dissented.[14] The Committee subsequently appealed *842 pealed to this Court challenging the trial court's jurisdiction and its holding that the violations did not warrant a new election.
ANALYSIS
¶ 6. Davies correctly asserted in his petition, contrary to the allegations of the Committee, that the circuit court had jurisdiction pursuant to § 23-15-927. The Committee asserts that jurisdiction was lacking due to failure to comply with the statutory requirements: namely (1) the petition was not sworn, (2) Davies did not file an appeal bond, and (3) the two attorneys who certified that they had made an independent investigation had not done so. The trial court properly allowed the amendment of Davies's unsworn petition by sworn testimony as to its content at the hearing.[15] The circuit clerk testified that he had received in his office, a cash bond from Davies in the sum of $300. Although the Committee argued that the two certifying attorneys had made no independent investigation, and members of the committee testified that they had not been contacted by the attorneys, neither of the attorneys was subpoenaed nor asked to testify. There was testimony by Davies that independent investigation had been made, although no specific details were given. "[A] collateral inquiry as to how [an attorney] made his investigation or how fully he made it can no more be permitted than it could be questioned of a judge that he failed to attend to the evidence. . . ." Harris v. Stewart, 187 Miss. 489, 193 So. 339, 343 (1940).
¶ 7. Davies also correctly asserted in his petition that the violations did not warrant a new election because the requirements of § 23-15-593 were not satisfied. Section 23-15-593 allows the county executive committee in primary elections to throw out individual precinct ballot boxes and order another election at that box if the statutory requirement is met. To throw out an individual precinct box, there must be "failures in material particulars to comply with the requirements of § 23-15-591 [requirements and security regarding the results of election] and § 23-15-895 [regulation of campaign material within 150 feet of polls] to such an extent that it is impossible to arrive at the will of the voters at such precinct." And only if such failures were "deliberately permitted or engaged in by the managers at that box, or by one (1) of them responsible for the wrong or wrongs, for the purpose of electing or defeating a certain candidate or candidates by manipulating the election" is the box subject to being thrown out.
¶ 8. The Committee argued that there were enough violations of the election code to warrant the holding of a new election, because it was "impossible to arrive at the will of the voters." Judge Johnson patiently heard all the testimony for both sides, and in announcing his decision, he stated that "[t]he Democratic Executive Committee acted at all times in an honest *843 and good faith manner, to the best of their ability, with the limited advice they were getting, to do the right thing according to the law, and in fairness to both candidates and to the voters of Jefferson Davis County." He went on, however, to say that "[a]ny irregularities or violations, which are not right, no matter how long they have been going on in Jefferson Davis County, were technical. They were not done with any fraudulent intent to help any candidate." He further found that "[t]he irregularities in question were not substantial enough to warrant a new election, based upon the facts and circumstances in this particular election, considering the alleged irregularities or violations, the scope of them, and also the quantity of them. It is possible to ascertain the will of the voters in the election in question." He concluded with the statement that "[i]t is further the judgment of this court that a new election is not necessary, authorized or called for, under the evidence and circumstances before the court" and certified Davies the winner.
¶ 9. There are only two reported cases citing § 23-15-593 and thus little precedent regarding the application of the statute. In Rizzo v. Bizzell, 530 So. 2d 121 (Miss.1988), a supervisor candidate's sister-in-law handed out campaign literature too close to the polling place in violation of § 23-15-895. Despite this violation, both the trial judge and this Court held that the violation was technical, not material, and that the will of the voters in the effected precinct could be ascertained. In the other case, Barbour v. Gunn, 890 So. 2d 843 (Miss.2004), certain residents of precincts were not allowed to vote due to errors in polling books and district boundary determinations by the Hinds County Executive Committee. Both the trial court and this Court held that there could be no determination of the will of the voters at the affected precincts because a certain and significant amount of voters were not allowed to vote. Thus, new elections for the affected precincts were proper.
¶ 10. Based upon the facts of this case, we hold that Judge Johnson was correct in overruling the Committee's decision to conduct a new election for the Democratic nominee for Jefferson Davis County Chancery Clerk. The requirements to hold a new election under § 23-15-593 were not met. Section 23-15-593 authorizes new elections for individual precincts if the requirements are met, not a new election county or district wide. To hold a new election county wide in this case, the Committee must determine that all precincts failed in "material particulars to comply with the requirements of § 23-15-591 and § 23-15-895 to such an extent that it is impossible to arrive at the will of the voters.. . ." There is no evidence in this case that there were violations of § 23-15-591 and § 23-15-895. Therefore, the Committee exceeded its authority under § 23-15-593 in ordering a new election for the Democratic nominee for Jefferson Davis County Chancery Clerk.
CONCLUSION
¶ 11. The trial court's findings of fact and conclusions of law are fully supported by the record in this case and should not be overturned absent an abuse of discretion. We find no abuse and affirm the judgment of the trial court.
¶ 12. AFFIRMED.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
NOTES
[1] The Mississippi Election Code requires that appeals from the decision or actions of a county executive committee regarding a primary election contest be heard by a special tribunal, which consists of a circuit court judge or chancellor appointed by the Mississippi Supreme Court from a district other than the one in which the contest arises and the five election commissioners of the county in which the contest arose. Miss.Code Ann. §§ 23-15-929, 23-15-931. The circuit court judge or chancellor is the controlling judge of both the facts and the law. The election commissioners sit as advisors or assistants in the trial and determination of the facts, and as assistants in counts, calculations and inspections, and in seeing to it that ballots, papers, documents, and books are secured. Id. § 23-15-931.
[2] Miss.Code Ann. § 23-15-597 states in pertinent part:
(1) The county executive committee shall meet on the first or second day after each primary election, shall receive and canvass the returns which must be made within the time fixed by law for returns of general elections and declare the result, and announce the name of the nominees for county and county district offices. . . .
[3] Miss.Code Ann. § 23-15-911 states in pertinent part:
(1) At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days' notice of his application therefor served upon the opposing candidate or candidates. . . .
[4] The additional votes for each candidate came from affidavit ballots not counted in the earlier canvassing.
[5] Violation of Miss.Code Ann. § 23-15-633.
[6] Violation of Miss.Code Ann. § 23-15-719.
[7] Violation of Miss.Code Ann. §§ 23-15-627 & -719.
[8] Violation of Miss.Code Ann. § 23-15-627.
[9] Violation of Miss.Code Ann. § 23-15-715.
[10] See Miss.Code Ann. §§ 23-15-541, 23-15-591.
[11] Miss.Code Ann. § 23-15-641(3) states:
If an affidavit is required and the officials find that the affidavit is insufficient, or if the officials find that the absentee voter is otherwise disqualified to vote, the envelope shall not be opened and a commissioner or executive committee member shall write across the face of the envelope "REJECTED" giving the reason therefor, and the registrar shall promptly notify the voter of such rejection.
[12] Section 23-15-593 states:
When the ballot box is opened and examined by the county executive committee in the case of a primary election, or county election commissioners in the case of other elections, and it is found that there have been failures in material particulars to comply with the requirements of Section 23-15-591 and Section 23-15-895 to such an extent that it is impossible to arrive at the will of the voters at such precinct, the entire box may be thrown out unless it be made to appear with reasonable certainty that the irregularities were not deliberately permitted or engaged in by the managers at that box, or by one (1) of them responsible for the wrong or wrongs, for the purpose of electing or defeating a certain candidate or candidates by manipulating the election or the returns thereof at that box in such manner as to have it thrown out; in which latter case the county executive committee, or the county election commission, as appropriate, shall conduct such hearing and make such determination in respect to said box as may appear lawfully just, subject to a judicial review of said matter as elsewhere provided by this chapter. Or the executive committee, or the election commission, or the court upon review, may order another election to be held at that box appointing new managers to hold the same.
(emphasis added).
[13] Section 23-15-927 states:
When and after any contest has been filed with the county executive committee, or complaint with the State Executive Committee, and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred, or if more than one county to be involved then in one (1) of said counties, a sworn copy of his said protest or complaint, together with a sworn petition, setting forth with particularity wherein the executive committee has wrongfully failed to act or to fully and promptly investigate or has wrongfully denied the relief prayed by said contest, with a prayer for a judicial review thereof. But such petition for a judicial review shall not be filed unless it bear the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted, and the petitioner shall give a cost bond in the sum of Three Hundred Dollars ($300.00), with two (2) or more sufficient sureties conditioned to pay all costs in case his petition be dismissed, and an additional bond may be required, by the judge or chancellor, if necessary, at any subsequent stage of the proceedings. The filing of such petition for judicial review in the manner set forth above shall automatically supersede and suspend the operation and effect of the order, ruling or judgment of the executive committee appealed from.
[14] Although the judge announced a 4-1 vote, the transcript records only these four votes. Miss.Code Ann. § 23-15-933 says that when at least three commissioners attend the trial and all concur with the judge's findings of fact, the facts are not subject to appellate review. If less than three commissioners attend or if one or more dissent from the judge's findings of fact, then upon review this Court may make such findings as the evidence requires.
[15] M.R.C.P. 81(a) states that in election contests, statutory procedures specifically provided for in the Election Code control over the M.R.C.P. to the extent they conflict with each other. Section 23-15-927 is silent regarding the amendment of pleadings. Therefore, M.R.C.P. 15(a) controls and amendments are allowed "at any time before a responsive pleading is served." See Pearson v. Parsons, 541 So. 2d 447, 450 (Miss.1989). In the present case, no responsive pleading from the Committee is on record. Even if there was a response by the Committee served upon Davies and in the record, M.R.C.P. 15(a) allows the amendment of pleadings after a responsive pleading is served "by leave of the court." In the present case, the trial court granted leave to amend at the hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919336/ | 912 So. 2d 32 (2005)
Orlando J. PEREZ, Appellant,
v.
Angelica Marie GILEDES a/k/a Angelica Marie Perez, Appellee.
No. 4D05-763.
District Court of Appeal of Florida, Fourth District.
August 24, 2005.
Rehearing Denied October 11, 2005.
Michael C. Minardi of Michael Minardi, P.A., Fort Lauderdale, for appellant.
Catherine L. Roselli of Law Office of Catherine L. Roselli, Fort Lauderdale, for appellee.
STONE, J.
Orlando Perez (Father) is the undisputed father of a five-year-old child born in Florida. Father claims that Georgia is the home state of the child and challenges the jurisdiction of the Florida court to grant an emergency child pick-up order. There has been no adjudication of Father's paternity, *33 but Father's parental status appears on the child's birth certificate. We affirm.
Father, the child, and the child's mother lived in Georgia for a year or more between the birth of the child and the mother's instituting this action. In May 2002, the mother returned to Florida, leaving the child with Father. The mother subsequently asked Father to return the child to Florida, but he refused and concealed his address in Georgia.
The trial court entered the emergency child pick-up order ex-parte. The mother also filed a Uniform Child Custody Jurisdiction Act (UCCJA) affidavit, stating that there had been no litigation or custody proceedings in any state and that the child was not subject to any existing child support order in any state.
Father argues that, under the UCCJA, section 61.514, Florida Statutes, prior to exercising jurisdiction over an initial child custody proceeding, the Florida court had to first determine that it had jurisdiction and, since the child had lived for over six months in Georgia, that Georgia was the appropriate forum for any custody proceeding.
The mother of a child born out of wedlock is the natural guardian of her child and "is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise." § 744.301(1), Fla. Stat. See also Muniz v. State, 764 So. 2d 729 (Fla. 2d DCA 2000).
We have considered, but deem distinguishable, multiple authorities that recognize a father's rights and obligations under the first sentence of this statute. See, e.g., DeCosta v. North Broward Hosp. Dist., 497 So. 2d 1282 (Fla. 4th DCA 1986); State v. Earl, 649 So. 2d 297 (Fla. 5th DCA 1995). None, however, involved a dispute between the mother and father over temporary residential care and custody in the absence of a judicial determination of paternity or parental rights. DeCosta, for example, was simply a recognition of the father's obligation for medical services rendered. The fact that Father has enforceable rights and obligations by virtue of his acknowledgement of paternity does not equate to his having a right to temporary custody superior to the mother's prior to a court declaration to that effect. For the limited purpose of this temporary order, it is sufficient for jurisdiction that the mother was a Florida resident when the child was born, that the child was born in Florida, and that the mother, after living in Georgia for a time, again resides here.
We also find our decision in Benson v. Evans, 901 So. 2d 893 (Fla. 4th DCA 2005), distinguishable. There, we determined that Florida lacked jurisdiction where the father lived exclusively with the child in another state for three years and was presently seeking an adjudication of paternity. In that case, the mother had no ties to Florida until her recent move here, and there was pending litigation in the other state. Here, the emergency pick-up order simply enforces the mother's presumptive rights until a court determines otherwise and is not a determination as to Father's ultimate custody rights.[1]
Therefore, the order is affirmed.
SHAHOOD and GROSS, JJ., concur.
NOTES
[1] We note that this recognition that the child's custody and domicile are with the mother, until such time as a court proceeding determines otherwise, is not inconsistent with Georgia law. See Ga.Code Ann. §§ 19-2-4(a); 19-7-22(a), (c); 19-7-25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455319/ | 257 P.3d 663 (2011)
171 Wash.2d 1021
STATE
v.
WHEAT.
No. 85790-3.
Supreme Court of Washington, Department I.
July 12, 2011.
Disposition of Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585745/ | 33 So.3d 203 (2010)
Wayne EBARB, et al., Plaintiff-Appellants,
v.
WILLIS KNIGHTON MEDICAL CENTER, et al., Defendant-Appellees.
No. 44,856-CA.
Court of Appeal of Louisiana, Second Circuit.
January 6, 2010.
Rehearing Denied February 25, 2010.
*204 Susan E. Hamm, for Appellants.
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, LLP by Joseph S. Woodley, Lawrence W. Pettiette, Jr., *205 Shreveport, for Appellees, James J. Kim, M.D. & La. Med. Ins. Co.
Watson, Blanche, Wilson & Posner by Peter T. Dazzio, Chris J. LeBlanc, Baton Rouge, for Appellees, Willis Knighton Health Sys., John Felty, M.D. & Eric Chen, M.D.
Before WILLIAMS, STEWART and MOORE, JJ.
MOORE, J.
The father, mother and brothers of 12-year-old Cody Ebarb appeal a jury verdict that rejected their claim of medical malpractice arising from Cody's death by stroke in the Willis-Knighton Health System Intensive Care Unit. For the reasons expressed, we affirm.
Factual Background
Cody suffered from several preexisting medical problems, including Epstein-Barr syndrome (a kind of viral chronic fatigue syndrome), herpes virus of the eye, and suspected Marfan syndrome (a genetic disease of the connective tissue). Cody was also double-jointed and often "popped" various joints. He had spent much time in medical treatment, and his mother described him as not a robust child.
On Sunday, November 4, 2001, the family went to their hunting lease to ride four-wheelers. After an unusually active day for him, Cody said he had "popped" his neck, was feeling dizzy and seeing an unusual light, but he begged not to be taken to the hospital again.
The next morning, Ms. Ebarb was driving Cody to his pediatrician, Dr. Sudha Rao, but stopped to drop off his brother at school. At the school, Cody suddenly said he couldn't see, then fell to the floor and started moaning. An ambulance carried him to Willis-Knighton South. EMTs noted only that he was having seizures.
Cody reached the ER at 8:30 am. Dr. John Felty, an emergency medicine physician on contract to Willis-Knighton, was on duty. Accounts of events in the ER and ICU varied widely.
According to Ms. Ebarb, she told Dr. Felty about Cody's symptoms of the previous night and asked him to call Dr. Rao, but he refused, saying he would not call her until he ran some tests. Ms. Ebarb also testified that even though he could not open his eyes or speak, Cody definitely was aware of his surroundings and communicated with them by nodding his head, notably during a spinal tap procedure. The nurses' notes at 10:40 am seem to confirm, "Patient responds to verbal stimulus." Ms. Ebarb testified, however, that Dr. Felty basically abandoned Cody after about 10:30 am, never telling her any test results, and she could not find a nurse to help them.
About 2:00 pm, Dr. Eric Chen, a pediatrician, arrived. Ms. Ebarb tried to tell him the whole story, but he was not interested; he merely glanced at Cody, ordered some Ativan (a widely used sedative and anticonvulsant), and left. Cody's pediatrician, Dr. Rao, did not arrive until about 5:00 pm, and according to Ms. Ebarb she was irate to find Cody still in the ER, not the ICU; he was promptly transferred. Ms. Ebarb testified that by this time, Cody was much worse: he was unable to move his arms or communicate, and was sweating profusely.
Cody was moved to the ICU around 6:30 pm, at which time Dr. James Kim, a neurologist, and Dr. Giao Do, a pediatric intensivist, arrived. According to Ms. Ebarb, Dr. Kim told her Cody was stable and doing fine, and they would run some more tests in the morning.
The next morning, however, while Ms. Ebarb had run home to fetch Cody's toiletries, Cody went into cardiac arrest and *206 "coded." There was no autopsy, but an MRI taken while the boy was on life support showed a dissected basilar artery, a form of stroke. The family took him off life support on November 10.
Dr. Felty agreed that he did not immediately call Cody's pediatrician, Dr. Rao, but insisted that the standard of care required him first to perform a basic emergency exam. He described running a battery of tests to explore and rule out the normal causes of symptoms like Cody's: a CT scan, spinal tap and blood chemistries, which were not complete until about 12:15 pm, and were all negative. He also gave Cody a small dose of Ativan to control the seizures. He admitted not performing a full neurological exam because Cody could not communicate and was flailing his limbs involuntarily. He disputed Ms. Ebarb's recollection that Cody was calmly nodding in response to questions; nurses' notes at 3:30 pm confirmed that the patient was "thrashing in bed, continues unresponsiveness." He also admitted not ordering an MRI, explaining that subspecialists, not ER physicians, normally do so, and that even high-definition MRI images might fail to show an occlusion during the first six hours.
Once the tests were complete, Dr. Felty called Dr. Rao, but she must have been busy because her partner, Dr. Chen, came. Dr. Felty testified that he verbally conveyed Cody's situation, and entrusted the patient to Dr. Chen at that time. Dr. Felty admitted he did not "chart" all the activities he related at trial, but insisted he did them all, satisfying his standard of care. Finally, he stated that a tear in the basilar arterywhich is sheathed by the spineis exceedingly rare, especially in pediatric patients.
Dr. Chen testified that he took the call for his partner, Dr. Rao, came to the ER about 1:30 pm, and got a verbal synopsis from Dr. Felty. He found Cody thrashing, moaning, unresponsive and difficult to examine. Like Dr. Felty, Dr. Chen could make no definitive diagnosis, but he ordered an EEG to test for epilepsy and seizures, a consultation with Dr. Kim, the neurologist, and ordered Cody to the ICU. He was unaware that after this order, Cody spent several more hours lying in the ER. Dr. Chen added that he verbally relayed his findings to Dr. Rao, but did not chart any of his activities. His final involvement in the case was his phone call to Dr. Kim.
Dr. Giao Do, the pediatric intensivist, testified that he saw Cody in the ICU about 7:30 pm. He did not think Cody was showing classic signs of a stroke, so he felt an immediate MRI was not needed. After consulting with Drs. Rao and Kim, he scheduled an MRI and repeat CT scan for the following morning. By the next morning, unfortunately, Cody had coded, and the MRI occurred while he was on life support.
Procedural History
The Ebarbs filed a claim with the commissioner of insurance against Willis-Knighton and the various doctors: Felty, Chen, Do, Rao and Kim. The medical review panel ("MRP") unanimously absolved all healthcare providers, finding the evidence did not support the conclusion that any of them breached the applicable standard of care. In written reasons, the MRP found no "deterioration of the patient's condition while in the ER" and that because of the nature of the case, the "most competent general neurologist would not correctly diagnose this condition early on."
The Ebarbs then filed this suit against Willis-Knighton and Drs. Felty, Chen, Kim and Do. Dr. Rao was not named as a defendant, and Dr. Do was dismissed voluntarily in August 2006. The matter proceeded to a five-day jury trial in August *207 2008. The Ebarbs and Drs. Felty, Chen and Do testified as outlined above; Drs. Kim and Rao did not testify.
The Expert Testimony
Dr. Walter Simmons of Scottsdale, Arizona, testified for the Ebarbs as an expert in emergency medicine with experience in pediatrics. His position was that an MRI performed shortly after Cody arrived in the ER would have shown the basilar artery dissection and improved his chances of survival. He strongly criticized Dr. Felty for failing to consider vascular injury, order an MRI, run a complete workup, or call for consultation sooner, and for keeping an incomplete chart. He testified that an ER doctor's standard of care was to order an MRI; if Willis-Knighton could not do it, Dr. Felty could have sent Cody to Parkland Hospital in Dallas, which had more advanced equipment.
Dr. Simmons also criticized Dr. Chen for taking no history, and for calling Dr. Kim without conveying that the case was an emergency. He criticized Willis-Knighton for not monitoring Cody in the ER and not promptly transferring him to ICU when Dr. Chen so ordered. Dr. Simmons agreed, however, that basilar artery injury is exceedingly rare in children, and would not have been his first diagnosis, but he maintained that it is not 100% fatal.
Dr. James Kopitnik of Casper, Wyoming (and formerly of Parkland in Dallas), testified for the Ebarbs as an expert in neurosurgery. He assumed that Cody had an embolus or TIA (ministroke) on the way to school, and that EMTs mistakenly labeled it as a seizure, with the result that doctors never considered stroke as the culprit. He conceded that Dr. Felty's initial evaluation was appropriate, but like Dr. Simmons, Dr. Kopitnik thought a prompt MRI would have identified the clot in time for doctors to give Cody anticoagulants. He also suggested an arteriogram to pinpoint the exact location of the blockage. He considered it a breach of the standard of care for Dr. Felty not to order these tests while Cody was plainly deteriorating.
Dr. Kopitnik concluded that Cody actually died from hydrocephalus (excess spinal fluid accumulated in the brain); he said a minor drainage procedure called ventriculostomy could have remedied this. He also suggested, as intervention, direct surgical repair, a bypass around the artery, or even "cleaning out" the artery. He sharply criticized Dr. Felty's poor charting. On cross-examination, Dr. Kopitnik conceded that if Cody really had a torn basilar artery, it was a rare condition with a high mortality rate.
Dr. Ann Henderson-Tilton, a pediatric neurologist from Galveston, Texas, served on the MRP and testified for Willis-Knighton and Dr. Felty. She found that Cody's neurological "event" began Sunday night, and by the time he reached the ER Monday morning in an altered mental state and unable to communicate, his condition was irreversible. She agreed with Dr. Felty that ER doctors do not order MRIs, and an MRI would have been difficult with a flailing child. Also, an anticoagulant could have been hazardous for a child in Cody's state, and the ventriculostomy basically boring a hole in the back of the headwould not have addressed the underlying problem. Dr. Tilton felt that all healthcare providers acted appropriately in this rare, irreversible case.
Dr. Donald Smith, a neurosurgeon at LSU Health Sciences Center in Shreveport, testified for Willis-Knighton and Dr. Felty. He concluded that Cody had a rare vertebral artery stroke at school on Monday morning, and by the time he got to the ER, Dr. Felty could not give a full neurological exam. He testified that an earlier MRI might have clarified the diagnosis, but not altered the outcome; he specifically *208 disagreed with Dr. Kopitnik on this point. Dr. Smith was emphatic that Cody's condition was rare and lethal; he stated that no surgical intervention could have saved him.
Dr. John Willis, a pediatric neurosurgeon at Ochsner Health System in New Orleans, served on the MRP and testified for Dr. Kim. In his view, Cody's symptoms upon arrival at the ICU still did not suggest a stroke; hence, Dr. Kim met the standard of care by ordering the EEG Monday night and the MRI Tuesday morning. He also felt that Dr. Felty's series of tests earlier that day was appropriate. Like Dr. Smith, he stated that a dissected vertebral artery is exceedingly rare, and not all pediatric neurologists could diagnose it. He also agreed with Dr. Smith that by the time Cody reached the ICU, there was no chance of saving him.
Action of the District Court
After deliberating about two hours, the jury found that each defendant's conduct was not a breach of the standard of care and not a cause of Cody's death. After the court rendered judgment dismissing all defendants, the Ebarbs moved for JNOV or new trial as to all except Dr. Chen. The court denied these motions, and the instant appeal followed.
The Parties' Positions
By three assignments of error, the Ebarbs contend (1) the jury verdict was clearly wrong and manifestly erroneous; (2) they were entitled to a JNOV; and, alternatively, (3) they were entitled to a new trial. Although they concede the case is highly factual, they argue that the defense experts' testimony was not supported by the facts, and the documents and objective evidence so undermine those experts' findings that manifest error is present. In support they cite Salvant v. State, 2005-2126 (La.7/6/06), 935 So.2d 646.[1] They contend that Dr. Felty did not adequately diagnose Cody's condition upon arrival in the ER. Specifically, they urge that he failed to order an MRI, which according to Drs. Simmons and Kopitnik should have been an automatic and would have identified the problem in time to take the surgical actions recommended the defense experts. Further, Cody deteriorated while in the ER, an observation that should have alerted Dr. Felty and the nurses that he was having a stroke rather than a seizure. They argue that the Ativan ordered by Dr. Felty actually masked the symptoms of stroke. They also contend that Dr. Felty breached the standard by not promptly calling Dr. Rao, by abandoning Cody after noon on Monday and by keeping a sloppy chart.
Dr. Felty and Willis-Knighton respond that the evidence was overwhelming that "nothing could have been done to change the outcome regardless of the diagnosis," as aptly stated by Drs. Tilton and Smith. They also cite their experts' view that ER physicians should not normally order MRIs; that an MRI would have been difficult with a squirming child; and that, at any rate, it might not have detected the clot. They urge it was reasonable, and within the standard of care, to explore and eliminate other, more likely causes of Cody's symptoms than a blocked artery in the neck. They reiterate that Cody's condition was so rare that it eluded not only Dr. Felty, but every other specialist on the case. Finally, they submit that although the ER chart is less than perfect, the jury did not abuse its discretion in finding that Cody did not substantially deteriorate while he was in the ER. They submit that the verdict should be completely affirmed.
*209 Dr. Kim has filed a brief, chiefly to remind the court that the Ebarbs did not name him as an appellee. He also urges that no expert found that he breached the applicable standard of care.
Applicable Law
To establish a claim for medical malpractice, the plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) a causal connection between the breach and the resulting injury. La. R.S. 9:2794 A; Samaha v. Rau, XXXX-XXXX (La.2/26/08), 977 So.2d 880; Snelling v. LSU Health Sciences Center, 43,332 (La.App. 2 Cir. 6/4/08), 986 So.2d 216, writ denied, XXXX-XXXX (La.10/3/08), 992 So.2d 1013. A physician is not required to exercise the highest degree of care possible; rather, his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. Fusilier v. Dauterive, XXXX-XXXX (La.7/14/00), 764 So.2d 74. Stated another way, a physician is not held to a standard of absolute precision; rather, his conduct and judgment are evaluated in terms of reasonableness under the existing circumstances and not with the benefit of hindsight. Lowrey v. Borders, 43,675 (La.App. 2 Cir. 12/10/08), 1 So.3d 635, writ denied, XXXX-XXXX (La.3/6/09), 3 So.3d 487.
Because the plaintiffs have not shown any legal error that interdicted the fact-finding process, the manifest error standard applies. Under this standard, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Salvant v. State, supra. Even if it would have decided the case differently, the appellate court must not reweigh the evidence or substitute its own factual findings. Id. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or plainly wrong. Id. Where documents or objective evidence so contradict a witness's story that no rational juror could credit it, the court of appeal may find manifest error even in a finding purportedly based on a credibility determination; however, when such factors are not present, and the finding is based on a credibility call, that finding can virtually never be manifestly erroneous or plainly wrong. Id.; Jackson v. Tulane Med. Center Hosp. & Clinic, XXXX-XXXX (La.10/17/06), 942 So.2d 509.
The grant of a JNOV under La. C.C.P. art. 1811 is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. Forbes v. Cockerham, XXXX-XXXX (La.1/21/09), 5 So.3d 839, and citations therein. If there is evidence opposed to the motion for JNOV of such quality and weight that reasonable and fair-minded people, in the exercise of impartial judgment, might reach different conclusions, then the motion should be denied. King v. Brown Dev. Inc., 43,827 (La.App. 2 Cir. 2/4/09), 4 So.3d 231, writ denied, XXXX-XXXX (La.4/17/09), 6 So.3d 796.
A new trial shall be granted, upon contradictory motion of any party, when the verdict or judgment appears clearly contrary to the law and the evidence. La. C.C.P. art. 1972(1). Although the grant or denial of a motion for new trial rests within the trial court's wide discretion, the court cannot set aside a judgment if it is "supported by any fair interpretation of the evidence." Campbell v. Tork Inc., XXXX-XXXX (La.2/20/04), 870 So.2d 968, and citations therein; Cash Point Plantation *210 Equestrian Center v. Shelton, 40,647 (La. App. 2 Cir. 1/25/06), 920 So.2d 974.
Discussion
The Ebarbs' initial complaint is that Dr. Felty failed to recognize the symptoms of stroke soon after Cody arrived in the ER. The record shows, however, that Cody's symptomsfalling down, flailing arms and legs, loss of speech were consistent with a seizure or "altered mental state." Dr. Do, the pediatric intensivist, testified that even when he saw Cody at 7:30 pm Monday, he did not see "classic signs of stroke." Dr. Felty testified, with corroboration from Dr. Tilton, that sound ER practice was to test for the common causes of the observed symptoms, and that the series of tests administered, including the CT scan, spinal tap and blood chemistries, were proper to accomplish this. Even Drs. Simmons and Kopitnik admitted that injury to the basilar artery is exceedingly rare in children. Only Dr. Kopitnik testified that "stroke has to be at the very top of your diagnosis," a view which the jury may have considered tinged with hindsight. On this record, the jury was entitled to find that Dr. Felty's initial workup was reasonable and met the standard of care for an ER physician treating this kind of patient.
The Ebarbs' leading complaint, that Dr. Felty failed to order an MRI which would have identified the problem sooner, was also subject to conflicting expert opinion. Dr. Felty and the defense experts testified that it is not the role of an ER doctor, but of a consulting subspecialist, to order an MRI. Dr. Simmons, the Ebarbs' expert in emergency medicine, disagreed, but admitted that it was unusual for him to order an MRI. Even so, both Dr. Simmons and Dr. Kopitnik strongly felt that the MRI would have identified the source of Cody's problem, and we would perhaps agree that on a strong showing of need, even an ER physician's standard of care might include ordering an MRI. Dr. Tilton felt just as strongly that it would have been impossible to take an MRI on a squirming child for whom additional sedation was not indicated. Dr. Felty also testified that even an MRI might not have disclosed the damage to the artery until several hours after the initial injury. This conflicting evidence would support a finding that ordering the MRI in this instance might have represented the highest degree of care, but the jury was entitled to find that Dr. Felty did not breach the ordinary standard of care.
Overlying the questions of standard of care is the issue of causation, which was made more difficult by the lack of an autopsy. Dr. Tilton testified that Cody suffered his neurological event on Sunday evening, and by the time he reached the ER he had no more than a 1% chance of survival without a severe brain deficit. Dr. Smith theorized that Cody had a stroke at his brother's school on Monday morning, when he lost his vision, but that given the size of the infarct, survival was "unlikely" without severe neurological deficits. Dr. Willis also felt that Cody suffered a stroke when he fell down at school, and by the time he reached the ER the event was "not survivable." Dr. Simmons did not state when the injury occurred, but he agreed that there was a "short window" to diagnose it. Dr. Kopitnik felt that a ministroke occurred on the way to school, and that Cody could have been treated effectively had he not been allowed to lie for hours in the ER. Dr. Kopitnik also testified that giving Cody an anticoagulant like Heparin, and performing a ventriculostomy or bypass, or transferring him to a hospital in Dallas, would have given him a "good chance" of survival. Dr. Tilton, however, testified that boring *211 a hole in the skull to relieve pressure would not have fixed the underlying problem, and Dr. Smith stated that no surgical intervention would have changed the outcome. Based on common experience, the jury could reasonably dismiss the practicability of placing a patient like Cody in an ambulance for a three-hour ride to Dallas. This record easily shows by a preponderance of the evidence that Cody could not have survived, whether Dr. Felty satisfied or deviated from the standard of care. The jury was not plainly wrong to find a lack of causation.
The finding of no causation obviates the need to analyze extensively the remaining factual issues posed by this record. Ms. Ebarb testified, and an early nurses' note confirms, that as late as 10:40 am Monday, Cody could respond to verbal stimulus. However, Dr. Felty could not recall that Cody ever did so, and a later nurses' note showed "continued unresponsiveness." This raises the question of whether, contrary to the MRP's opinion, Cody really did deteriorate in the ER? There was no explanation for why Cody lay in the ER for four hours after Dr. Chen ordered him to the ICU. If any intervention could have helped, this untoward delay would have diminished its utility. Finally, there is the disturbing absence, in both Dr. Felty's and Dr. Chen's physician's notes, of any indication that they performed even a small fraction of the measures they described at trial. As in Willis v. Smith, 43,958 (La. App. 2 Cir. 1/14/09), 999 So.2d 1244, the jury apparently accepted the doctors' trial testimony over their sketchy charts.
In different circumstances, these anomalies may well have tilted the scale in favor of a finding of liability. On the present record, however, they do not offset the lack of evidence to prove the essential elements in this tragic case or establish a showing of manifest error. Salvant v. State, supra. They also do not point "so strongly and overwhelmingly in favor" of the Ebarbs that a JNOV was warranted. Forbes v. Cockerham, supra. Finally, the district court did not abuse its vast discretion in denying the motion for new trial. Campbell v. Tork, supra.
Conclusion
For the reasons expressed, the judgment is affirmed. Costs are to be paid by the appellants, the Ebarbs.
AFFIRMED.
APPLICATION FOR REHEARING
Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.
Rehearing denied.
NOTES
[1] Salvant actually reinstated a judgment in favor of the healthcare providers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585767/ | 33 So.3d 1019 (2010)
STATE of Louisiana
v.
Erskine L. ROBINSON a/k/a Erskine Robertson.
No. 2009-KA-1137.
Court of Appeal of Louisiana, Fourth Circuit.
March 24, 2010.
Rehearing Denied April 28, 2010.
*1020 Leon A. Cannizzaro, Jr., District Attorney, Brad M. Scott, Assistant District Attorney, New Orleans, LA, for The State of Louisiana.
Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
TERRI F. LOVE, Judge.
The State filed a bill of information charging the defendant, Erskine Robinson, with possession of crack cocaine. The defendant entered a plea of not guilty and filed motions to suppress the evidence and statement. After a hearing, the trial court denied the defendant's motions and found probable cause to hold the defendant for trial.
The defendant appeals, arguing that the trial court erred in allowing the State to question Erica Jones as to her knowledge of his prior criminal convictions. The defendant argues that the State failed to present sufficient evidence to support his conviction for possession of cocaine, alleging that the police officers fabricated the facts in order to frame him. The defendant also maintains that his conviction and sentence should be reversed because he was arrested and charged with possession of "crack", a substance for which there is no statutory prohibition.
*1021 We find that the jury's credibility finding as to the officers' explanation of what led up to the defendant's arrest for possession of cocaine is supported by evidence in the record before us. We further find that the State satisfied its burden of proving the elements of the crime beyond a reasonable doubt and the evidence was sufficient to support the conviction. We find no error in the defendant's conviction, as the State and defense counsel stipulated that the substance in the defendant's possession tested positive for cocaine, a controlled dangerous substance the possession of which is prohibited by law. We affirm the defendant's conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 2007, the defendant, Erskine Robinson, was charged with possession of crack cocaine, a violation of La. R.S. 40:967(C)(2). The defendant entered a plea of not guilty. The district court denied the motions to suppress the evidence and statement and found probable cause to hold the defendant for trial. The defendant was later found guilty as charged.
The State filed a multiple bill of information charging the defendant with being a fourth felony offender. The district court adjudicated the defendant as a fourth felony offender, and he was sentenced to serve twenty years at hard labor with credit for time served but without benefit of probation or suspension of sentence and concurrent with any other sentence.
TESTIMONY ADDUCED AT TRIAL
In 2007, Officer Brumfield and his partner, Officer Kelsey Lewis, were on pro active patrol in the vicinity of Mars Place, an area known for drug activity. The officers observed the defendant crawling out from under a house at 9 Mars Place. Because home owners in the area had experienced copper pipe thefts, the officers decided to conduct an investigatory stop of the defendant. The officers exited their vehicle, approached the defendant and asked him if he owned the house. The defendant responded that he did not own the house and the officers testified that the defendant replied in an agitated manner asked the officers if they had anything better to do than mess with him.
Officer Brumfield noticed that both of the defendant's fists were clenched. Because of the defendant's agitated manner and for safety purposes, Officer Brumfield asked the defendant to open his fists, and the defendant reluctantly complied. A glass pipe commonly used for smoking crack cocaine and a piece of plastic containing a rock-like substance consistent with crack cocaine fell from the defendant's fists; the items were immediately seized. The defendant was read his Miranda rights and placed under arrest for possession of crack cocaine.
Officer Brumfield further testified that he was not familiar with the house located at 9 Mars Place, but it appeared to be an inhabited dwelling. After securing the defendant inside their police unit, the officers knocked on the door of the house at 9 Mars Place in an attempt to locate the owner, however, no one answered the door. Using their flashlights, the officers looked under the house for evidence of other illegal activity or pipe thefts, and none was found. Officer Lewis testified that no burglar tools or cut pipe were found under the Mars Place house.
The state and defense stipulated that the substance seized from the defendant tested positive for cocaine.
Erica Jones ("Ms. Jones"), owner of the house located at 9 Mars Place, testified that she knew the defendant from the *1022 neighborhood but did not have any personal interaction with him. She further testified that the defendant performed odd jobs for some neighbors such as washing cars, running errands such as going to the store, and generally checking on neighbors. Ms. Jones stated that she lived in the house with her children and adult niece. She testified that she was home on the evening of the defendant's arrest, however she did not see or hear anyone under her house. She also testified that she did not see or hear the police outside, nor did she hear a knock on her door.
Ms. Jones testified that on the date in question, she was employed by Harrah's as a housekeeper. She stated that she worked a shift from 8:30 a.m. to 5:30 p.m. so that she could be home in the evening with her children and never worked the evening shift. Ms. Jones testified that she had no knowledge of the defendant's use of drugs or his prior convictions for drug possession, and she was shocked to learn that he had been arrested for drug possession. Ms. Jones testified that she had no knowledge of the defendant's prior convictions for possession of cocaine in 1995, for theft in 1991 and 1999 and for escape from police custody in 1998. She further testified that the defendant never watched her children; however, she stated that he had been inside her house on two occasions and that her relationship with him was friendly. Ms. Jones testified that the police never attempted to contact her and stated that she believed the defendant was a nice person because he never did anything bad in the neighborhood.
ERRORS PATENT
A review for errors patent reveals none.
MOTION TO SUPPRESS
The defendant argues that the trial court erred in denying the motion to suppress the evidence. Specifically, the defendant asserts that the request by Officer Brumfield that he relax his clenched fists constituted an illegal search and warrants a suppression of the cocaine that was seized. The defendant points to Officer Lewis' testimony at the motion to suppress hearing that he was not afraid of the defendant as proof that the request for him to relax his clenched fists was not justified as a reasonable search for weapons. The defendant further argues that he was not free to refuse.
If a police officer's observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, the officer may detain that person briefly to investigate the suspicion-provoking circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the instant case, the officers saw the defendant in an area that had experienced an increase in the theft of copper pipe from residences. The defendant was crawling backwards from under a house late at night. This observation was sufficient to initiate an investigatory stop of the defendant. The defendant denied that he owned the house, and the officers described his demeanor and tone as aggressive. The defendant's aggressive verbal responses exhibited that he was not happy with the situation. As a safety precaution, Officer Brumfield asked the defendant to relax his clenched fists; the defendant reluctantly complied. Thus, the issue posed is whether the officers obtained the contested evidence by way of a request or a demand.
The critical aspect of that inquiry turns on whether a reasonable person would feel free to decline the requests or otherwise terminate the encounter with the law enforcement personnel. Furthermore, a defendant's subjective belief is irrelevant; *1023 the encounter should be judged from the viewpoint of a reasonable, innocent person. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Taking into account all of the other circumstances the court must determine whether the police conduct would have communicated to a reasonable person that he was not at liberty to disregard the officers and go about his business. Id. Although most citizens will respond to a police solicitation, and do so without being told that they are free to decline, that fact hardly eliminates the consensual nature of the response. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). The determination of voluntariness depends upon the overall facts and circumstances of the particular case. State v. Franklin, 95-1876 (La.1/14/97), 686 So.2d 38. On appellate review of such an issue, the trial court's factual determination is entitled to great weight. Id.
In the instant case, we find that no illegal search occurred. In fact, no search took place. Officer Brumfield requested (as opposed to directed, ordered, instructed or demanded) that the defendant relax his clenched fists. Officer Lewis testified that the defendant was asked to relax his clenched fists because "[w]e just wanted to make sure he didn't take a swing at us." Officer Lewis' testimony supports the officers' concern that the defendant may become violent and hit them. No guns were drawn, no threats were made, and no repercussions were threatened. Although the defendant was less than delighted with the situation, Officer Brumfield made only a request regarding the contents of his hands. The defendant complied with the request. Thus, we find no merit in this assignment of error.
DEFENDANT'S CHARACTER
The defendant asserts that the trial court erred in allowing the state to question Erica Jones as to her knowledge of his prior criminal convictions. Over defense objections, following a sidebar discussion, the trial court ruled that defense counsel put the defendant's character at issue on direct examination and, therefore, opened the door for the state to question Jones about his prior convictions. In overruling defense counsel's objection, the trial court stated the following:
THE COURT:
Counsel, I have to beg to differ with you on that. Once you did, you did. I can't disagree with Mr. Bair on that and once you go into thatI'll [sic] just calling it the good neighbor questioning, the loving people, washing cars, watching out for everybody in the neighborhood; that you put his character into evidence ... but knowing there is a clear case where the counsel has opened up the door to character evidence, that youthe questions were very clear and planned and it wasn't like you were shocked because you mentioned those kind [sic] of things in your opening statement.
The record reflects that the defense opened the door to evidence concerning the defendant's character. A witness may be cross-examined on any matter relevant to any issue in the case. La. C.E. art. 611. Character witnesses may be cross-examined concerning relevant specific instances of conduct. La. C.E. art. 405. The State has the right to rebut testimony elicited from a witness by the defense. State v. Koon, 96-1208, p. 25 (La.5/20/97), 704 So.2d 756; see also, State v. Asberry, 99-3056, (La.App. 1 Cir. 2/16/01), 808 So.2d 472. We find that under the instant circumstances, the questions were proper.
*1024 SUFFICIENCY OF EVIDENCE
The defendant asserts that the State failed to present sufficient evidence to support his conviction for possession of cocaine. Specifically, he alleges that the officers fabricated the facts in order to frame defendant.
The Louisiana Supreme Court set forth the standard for evaluating a claim of insufficient evidence in State v. Brown, XXXX-XXXX, p. 22 (La.4/12/05), 907 So.2d 1, 18:
When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court "must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). See also State v. Batiste, XXXX-XXXX (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Sykes, XXXX-XXXX (La.App. 4 Cir. 3/9/05), 900 So.2d 156.
The defendant was charged with and convicted of possession of cocaine. The State had to prove that the defendant knowingly and intentionally possessed cocaine. See La. R.S. 40:967 C; State v. Williams, XXXX-XXXX (La.App. 4 Cir. 2/13/08), 977 So.2d 1101. Here, the officers testified that they observed defendant crawling from under a house at 9 Mars Place. Because the area had experienced an increase in stolen copper pipe, the officers initiated an investigatory stop. Further, due to the defendant's aggressive demeanor, Officer Brumfield, for safety reasons, asked the defendant to open his closed fists. When the defendant complied, a glass pipe and a piece of plastic containing two rock-like substances dropped to the ground. The items were retrieved and later found to be cocaine. There was no evidence presented at trial that refuted these facts. As for the defendant's claim that the officers lied and fabricated the facts, as noted in Williams, at p. 6, 977 So.2d at 1108: "A reviewing court is not called upon to decide whether it believes the witnesses. State v. Rose, XXXX-XXXX, pp. 2-3 (La.App. 4 Cir. 4/13/07), 955 So.2d 270, 272." In addition, this Court has repeatedly held that a fact-finder's credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, XXXX-XXXX (La. App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The jury apparently believed the officers' explanation of what led up to the defendant's arrest for possession of cocaine, and there is nothing in the record before this court to indicate that the jury's credibility finding is clearly contrary to the evidence.
Given the officers' testimony, the jury could have reasonably found that the State proved beyond a reasonable doubt that the defendant possessed and dropped the crack cocaine. This assignment of error is without merit.
STATUTORY PROHIBITION
The defendant asserts that his conviction and sentence should be reversed because he was arrested and charged with possession of "crack", a substance for which there is no statutory prohibition. The bill of information reflects that defendant was charged with possession of a controlled dangerous substance, to wit: cocaine. At trial, the State and defense counsel stipulated that the substance in *1025 the defendant's possession tested positive for cocaine, a controlled dangerous substance the possession of which is prohibited by law. La. R.S. 40:964(A)(4); Schedule II, La. R.S. 40:967(C)(2). We therefore find this assignment of error is without merit.
DECREE
The defendant's conviction and sentence are affirmed.
ARMSTRONG, C.J., concurs.
MURRAY, J., Concurs with Reasons.
MURRAY, J., Concurs with Reasons.
The defendant, Mr. Robinson, asserts that Officer Brumfield's request that he relax his clenched fists constituted an illegal search and warrants a suppression of the cocaine that was seized. The majority states that this issue turns on whether "the officers obtained the contested evidence by way of a request or a demand" and concludes that the seizure was valid because it was a request. Although I agree the seizure was valid, I disagree with the characterization of Officer Brumfield's instruction as a request. Given that Officer Brumfield gave the instruction not once, but twice, I believe it was a demand that Mr. Robinson was not free to ignore.
Nonetheless, the evidence was properly seized as part of the valid Terry stop of Mr. Robinson. Under somewhat similar circumstances, this court in State v. Bridges, 610 So.2d 827 (La.App. 4th Cir. 1992), held that officers were justified in forcing a defendant to open his clenched fist during a Terry stop. In that case, one of the officers testified that "he believed that defendant could have had a weapon, such as a pocketknife, in his hand." Bridges, 610 So.2d at 829. Similarly, Officer Brumfield indicated that he asked Mr. Robinson to open his clenched fist as a safety precaution. Accordingly, I agree with the majority's finding that the trial court did not err in denying Mr. Robinson's motion to suppress the evidence that was seized. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585769/ | 508 So.2d 765 (1987)
The WESTERN UNION TELEGRAPH COMPANY, Appellant,
v.
Thomas J. PERRI and Division of Workers' Compensation, Appellees.
No. BO-357.
District Court of Appeal of Florida, First District.
June 17, 1987.
*766 Errol S. Cornell, Miami, for appellant.
Mark L. Zientz, of Williams & Zientz, Coral Gables, and Joseph C. Segor, Miami, for appellees.
WENTWORTH, Judge.
Employer/carrier appeal a June 17, 1986 workers' compensation order by which wage loss benefits were awarded. Claimant cross-appeals. We affirm.
Claimant sustained industrial injuries from accidents which occurred in 1981 and 1982. After returning to work for employer claimant wore a beeper to receive messages regarding his part-time real estate/mortgage business. Employer advised claimant to discontinue wearing the beeper, but claimant refused and was suspended from his employment in October 1985. Claimant indicated that he then continued to pursue his own real estate/mortgage business and thus made no work search. Claimant received no income from this activity in either October, November, or December. However, a property closing which claimant handled in December resulted in payment of a commission in excess of $1600 on January 1, 1986.
The deputy found that claimant had limited his income by failing to work for employer in October and November, noting that it was employer's prerogative to require that claimant discontinue wearing the beeper. Concluding that employer was entitled to suspend claimant from employment, the deputy further indicated that claimant believed he was being discriminated against and that employer was attempting to "make life difficult for him." Characterizing claimant's feeling as a "reasonable belief," the deputy suggested that "claimant is not legally required to return to work for the employer with whom he was employed at the time of his injuries if he reasonably believes that the employment conditions are oppressive." The deputy therefore ruled that claimant "will only be denied wage loss until he made a reasonable and successful good faith effort to return to work full time effective December 1, 1985." Accordingly, wage loss benefits were awarded commencing December 1985.
Appellant contends (1) the deputy erred by entering an order which is internally inconsistent and contradictory; and (2) by finding that claimant was no longer limiting his income as of December 1985, and thus awarding wage loss benefits. On cross-appeal the claimant argues the deputy erred in finding a voluntary limitation of income and denying wage loss benefits for October and November 1985. Wage loss benefits are not necessarily precluded merely because they occur after a period of successful post-injury employment, even if such reemployment is terminated for cause. See Johnston v. Super Food Services, 461 So.2d 169 (Fla. 1st DCA 1984). Rather, Johnston indicates that the deputy should consider the totality of the circumstances in determining whether a causal connection exists between the industrial injury and subsequent wage loss. And while a work search is generally required, fulltime employment, even in a self-owned business, may in appropriate circumstances obviate the need for further work search during such employment. See Adart South Polybag Manufacturing Inc. v. Goldberg, 495 So.2d 826 (Fla. 1st DCA 1986). Diminished earnings from post-injury good faith work as a realtor has been approved as a basis for wage loss benefits. See National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984).
In the present case the award of wage loss benefits is consistent with the above-cited authorities. The deputy was entitled to conclude that claimant's good faith full-time work effort as a realtor in December and thereafter obviated the need for a further work search and reestablished his diminished earning abilities for wage loss purposes after the termination of his work for employer in October. The deputy thus did not err in declining to preclude all wage loss benefits upon employer's assertion that claimant voluntarily limited his income by refusing to maintain his job with employer.
*767 As to the cross-appeal, while self-employment as a realtor may in appropriate circumstances preclude the necessity of a work search as an evidentiary method to establish causal connection between diminished wages and an industrial injury, this is not a per se rule of application in all cases. Rather, whether a claimant's effort to establish his own business is bona fide and sufficient to substitute for an adequate job search is a question which is dependent upon the circumstances. See e.g., Custom Paints v. Philbrick, 490 So.2d 1352 (Fla. 1st DCA 1986). And the causative effect of discharge from other successful post-injury employment is likewise dependent upon the facts in context. See Johnston. In the present case the deputy concluded that the circumstances establish a voluntary limitation of income in October and November after claimant was suspended from his reemployment. Although the deputy recommenced wage loss benefits in December when the character of claimant's efforts was shown by a real estate closing which produced a subsequent commission, Philbrick and Johnston suggest that the deputy could nevertheless find that prior to December claimant's efforts were not shown to be bona fide or reasonable, and thus constituted a voluntary limitation of income.
Affirmed.
MILLS and BARFIELD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585773/ | 508 So.2d 1047 (1987)
Francis M. VINING
v.
MISSISSIPPI STATE BAR ASSOCIATION.
Conf. Misc. No. 195.
Supreme Court of Mississippi.
April 29, 1987.
Rehearing Denied July 15, 1987.
Vernon H. Broom, Columbia, C.A. Henley, Jr., Jackson, for appellant.
Connie S. Jelliffe, Michael B. Martz, Jackson, for appellee.
Before ROY NOBLE LEE, P.J., and DAN M. LEE and SULLIVAN, JJ.
SULLIVAN, Justice, for the Court:
This is an appeal from a decision of the Mississippi State Bar Complaint Tribunal suspending Francis M. Vining from the practice for 120 days. On June 4, 1985, the Mississippi State Bar Complaints Committee filed a formal complaint against Vining alleging several incidents of professional misconduct. Vining filed a waiver of process or entry of appearance, but filed no answer and asserted no defense. The Bar sought and received a default judgment against him on July 17, 1985. This default judgment was entered on August 21, 1985. On December 6, 1985, the Complaint Tribunal suspended Vining from the practice of law for 120 days and he has perfected this appeal, assigning the following as error:
I. The Complaint Tribunal erred in allowing a Default Judgment based on a Complaint that fails to state a cause of action; and
II. The Tribunal's Opinion and Final Judgment are overly punitive and the suspension from the practice of law is far too severe when considered in light of the alleged misconduct.
I.
WAS IT ERROR TO ALLOW THE DEFAULT JUDGMENT?
Vining is charged with, among other things, the violation of Disciplinary Rule 6-101 of Code of Professional Responsibility.
DR6-101 reads as follows:
(A) A lawyer shall not:
* * * * * *
(3) neglect a legal matter entrusted to him.
There are other charges but this is the gravamen of the more serious of the complaints against Vining.
The undisputed evidence presented to the Complaint Tribunal was that Vining accepted employment and then neglected the case though he regularly told his client that he was handling the matter. As a result nothing was done in the case and the statute of limitations ran.
*1048 Vining argues that the Complaint Tribunal would have dismissed his claim because, among other things, his actions caused no harm to his client and he had told his client that the case was not a good one and to seek other counsel in the beginning. We will never know the truth of this assertion as Vining also neglected to defend himself before the Tribunal.
Disciplinary proceedings by the State Bar are regulated by the Rules of Discipline from the Mississippi State Bar. However, Rule 81 of the Miss.R.Civ.P., recognizes where there is a conflict between the Rules of Civil Procedure and any other rules that govern proceedings of this nature, the Rule of Civil Procedure will not govern and the special rules shall be applicable. See Miss.R.Civ.P. 81. There are no specific procedures concerning entry of default judgment in disciplinary actions by the State Bar Committee and therefore we hold that the Rules of Civil Procedure apply.
Rule 12(h)(2) of the Miss.R.Civ.P. provides that any motion seeking to dismiss an action for failure to state a cause of action must be presented before the close of the trial. Vining did not do this.
Rule 55(a) of the Miss.R.Civ.P. provides that a default judgment shall be entered if a party has failed to plead or otherwise defend a claim asserted against him as provided by the rules. See Miss.R.Civ.P. 55(a). A party seeking a default judgment must make a written application to the court. If the non-moving party has failed to appear in any manner or capacity, default judgment may be entered by the clerk. Smith v. Everett, 483 So.2d 325 (Miss. 1986); Miss.R.Civ.P. 55(a). However, if such a party has appeared, he must be given three days notice prior to a hearing on the application of the default judgment. Failure to give this notice will render the entry of a default judgment invalid. See Smith, supra; State Sec. Life Ins. Co. v. State, 498 So.2d 825 (Miss. 1986); Miss.R. Civ.P. 55(b). However, the entry of a default judgment is a drastic step and should be applied only in extreme circumstances. See State Sec., supra; Wheat v. Eakin, 491 So.2d 523 (Miss. 1986).
In this case, Vining's answer to the formal complaint was due twenty (20) days after service of process. See Rules of Discipline 8.3. Vining received the formal complaint and filed his waiver of service of process and entry of appearance on June 8, 1985. His answer was due on June 28, 1985, but was never filed, nor was any other responsive pleading filed. On July 3, 1985, the motion for default judgment was filed and sent to and received by Vining. This motion was sustained on July 17, 1985, and the default judgment was entered by the Complaint Tribunal on August 21, 1985. No responsive pleadings were filed at any time.
We hold that the granting of the default judgment under these circumstances was proper. Vining was given three days notice prior to a hearing on the motion for default judgment. The complaint specifically set forth the facts of the case and the Disciplinary Rules that he had allegedly violated. Any motion to dismiss the complaint or cause should have been filed within twenty (20) days of the service of process. There is no merit to the first assignment of error.
II.
WAS THE SUSPENSION FROM THE PRACTICE FOR 120 DAYS OVERLY PUNITIVE IN LIGHT OF THE ALLEGED MISCONDUCT?
This Court is free to evaluate the punishment imposed and to enter any appropriate order that it sees fit. We find no merit to Mr. Vining's contention that he is being punished for his failure to appear before the Complaint Tribunal rather than his neglect of his client's case. We do note, however, that he treated himself as a client in the same cavalier and neglectful manner that he treated the client that brought this complaint against him.
When disciplinary actions are appealed to this Court we review the entire record, findings and conclusions of the Tribunal and render such orders as we deem appropriate. *1049 This is consistent with the Rules of Discipline 9.4 and our previous caselaw. See Levi v. Mississippi State Bar, 436 So.2d 781 (Miss. 1983). Punishment for any violation of the Rules of Discipline is not governed by a set standard, rather the cases are to be considered on a case by case basis. A Mississippi Attorney v. Mississippi State Bar, 453 So.2d 1023 (Miss. 1984).
We view this assignment of error as a plea for mercy as in fact it is. As we understand Mr. Vining at the oral argument of this case he has confessed his neglect. At argument he also set forth three extenuating circumstances: (1) involving his personal health; (2) one involving the health of a family member; and (3) a matter of personal distress.
In relying upon his brief to this Court and his appearance at oral argument Mr. Vining has engaged in what is at best a risky business. We look with great disfavor on members of our profession who ignore the well established procedures within the Bar used for handling complaints. We look with even greater displeasure at a member of our profession who neglects his professional duties to those who have sought his help.
Mindful that justice untempered by mercy may be unduly harsh, we are inclined to mercy in this case. This is so not because we consider the 120 days suspension meted out by the Mississippi State Bar Complaint Tribunal to be overly punitive and severe. The punishment was in keeping with the misconduct. However, due to the existence and the very nature of the three extenuating circumstances presented to this Court by Mr. Vining we have determined that the suspension from the practice of law is not appropriate under these peculiar facts. The fates have not dealt kindly with Mr. Vining and we are not disposed to add further to his burdens.
We therefore vacate the 120 day suspension and order that Francis M. Vining do receive a public reprimand.
SUSPENSION VACATED AND APPELLANT TO RECEIVE A PUBLIC REPRIMAND.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, ROBERTSON, ANDERSON and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585774/ | 33 So.3d 151 (2010)
Ricky Bernard YOUNG, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-4266.
District Court of Appeal of Florida, Fourth District.
May 12, 2010.
*152 Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
WARNER, J.
We grant appellant's motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
Appellant, Ricky Young, appeals his convictions for robbery with a firearm or other deadly weapon, and other charges, arguing that the court erred in denying his motion to suppress evidence, because the officer who initiated the vehicular stop which preceded the search did not have probable cause. There was, however, evidence of speeding as well as a reasonable suspicion that the occupants of the vehicle had committed a crime. He also claims that the court improperly admitted a test that a detective made to determine the operability of a firearm. We conclude that the test was relevant and admissible. Finally, he challenges his sentence, claiming that the trial court relied on improper factors. We reject this claim as well, as he did not object to their consideration at sentencing, and the issue is not cognizable under Rule 3.800(b)(2). While appellant claims that we should consider this a fundamental error, we disagree, concluding that no error in the sentencing process occurred. We thus affirm on all issues.
Young and two others robbed an employee of a Domino's restaurant. The employee was waiting by his vehicle outside the restaurant after it closed. The assailants hit him with a gun, causing significant injury, took his money and the food he was eating, rummaged through his vehicle, and fled in their own car. The police arrived shortly after the incident and broadcast in a BOLO the employee's description of his assailants. Another deputy on road patrol at a location close to the Domino's restaurant heard the BOLO and observed a vehicle driving at a high rate of speed heading out of town on a rural road. The deputy initiated a stop. The description in the BOLO of the assailants matched the persons in the vehicle. A search revealed the exact amount of money taken from the victim, a cell phone, a BB gun, and a Domino's box. The victim identified Young as one of his assailants.
The state charged Young with robbery with a firearm, aggravated assault with a weapon, and burglary of a conveyance. He was tried with his co-defendant and the *153 jury convicted Young of all charges. The court sentenced Young to life in prison for the robbery and lesser sentences for the other crimes.
Young contends that the trial court erred in admitting evidence seized after a stop of his vehicle without probable cause. We agree with the trial court that Young's speeding justified the stop. See Hurd v. State, 958 So.2d 600, 602 (Fla. 4th DCA 2007) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)) ("Under search and seizure law, the stopping of a motorist is reasonable where a police officer has probable cause to believe a traffic violation has occurred."). The officer's trained observation of Young speeding sufficed to provide probable cause for the stop. See State v. Allen, 978 So.2d 254, 255 (Fla. 2d DCA 2008) (explaining that "police may stop a vehicle for a speeding violation based on the officer's visual or aural perceptions and that verification of actual speed by the use of radar equipment or clocking is not necessary to justify the stop"); see also Byrd v. State, 964 So.2d 806, 806 (Fla. 4th DCA 2007).
We also agree with the trial court that the officer initiating the stop had a reasonable suspicion that Young had just committed a crime based upon the factors set forth in Jean v. State, 987 So.2d 196, 198 (Fla. 4th DCA 2008) (citing Rodriguez v. State, 948 So.2d 912, 914 (Fla. 4th DCA 2007)). In Jean we said: "In determining the legality of a stop as a consequence of a BOLO, this court has looked to factors such as the length of time and distance from the offense, specificity of the description of the alleged perpetrator(s), the source of the BOLO information, the time of day, absence of other persons in the vicinity of the sighting, suspicious conduct, and any other activity consistent with guilt."
Consistent with these factors, minutes after learning from dispatch that a robbery occurred at Domino's Pizza, the road deputy relatively close to the pizza restaurant observed a car speed past him on a rural highway, traveling in the opposite direction of the scene of the crime. By following the car with his bright lights on, the deputy observed that the car's occupants matched the BOLO description that he had just received of the assailants. The occupants acted suspiciously in that they kept looking back at the deputy's car, and the driver repeatedly changed lanes. Based on this evidence, the officer possessed reasonable suspicion to stop the car and determine whether the men inside had been involved in the robbery. The court did not err in denying the motion to suppress.
In his second point, Young contends that the court erred in admitting the results of a detective's test firing of the BB gun found in Young's vehicle to prove its operability. Because the state did not charge Young with firing a weapon, he claims that the admission of such tests was irrelevant and prejudicial. Young's argument is flawed because the detective's experiment was not meant to recreate Young's firing of the weapon during the crime but to establish whether the weapon was operational, and by extension, deadly.
The state charged Young with robbery with a deadly weapon, aggravated battery with a deadly weapon, and burglary of a conveyance while armed with explosives or a dangerous weapon, to wit: a BB gun. At the outset of trial, Young admitted to committing robbery and battery but expressly disputed that the BB gun constituted a deadly weapon. Whether a BB gun is a deadly weapon is a question for the jury to decide. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997). In order to *154 prove the charged crime, the state needed to prove that Young carried a firearm or other deadly weapon. Proof that the BB gun was operational was relevant to proving that it was a deadly weapon. The assailants used the gun as a club to strike the victim and pointed it at his head. The test firings constituted evidence relevant for the jury's consideration of the deadliness of the weapon.
Finally, Young challenges his sentence, arguing that the court considered improper factors in its determination. Specifically, he claims that the court relied on the statement of a deceased co-defendant which was not presented at trial in determining the level of Young's involvement in the crime. He did not object at the sentencing hearing to the trial court's references to the co-defendant. He then filed a motion to correct a sentencing error pursuant to Rule 3.800(b)(2). The trial court considered the motion and denied it in a written order. The court determined that, while the court was aware of the co-defendant's statement, the record did not reflect that the court gave any consideration to the statement. The court explained how Young had essentially taken the court's words at the sentencing hearing out of their intended context. On appeal, Young continues to contend that the court considered improper factors and violated his right to confront witnesses against him in relying on the statement of one of the other participants in the robbery.
A motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) is not the proper vehicle to raise an issue involving the use of improper factors during sentencing. See Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009) ("Initially, we must point out that rule 3.800(b)(2) is not the proper mechanism for preserving for appeal the issue of whether the court improperly considered certain factors in imposing sentence."); see also Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (explaining that rule 3.800(b)(2) is intended to permit defendants to bring to the trial court's attention errors in sentence-related orders, not any error in the sentencing process).
Nevertheless, the trial court did consider and rule on the motion and determined that it had not relied on improper sentencing factors. Despite this, we would still be required to conclude that fundamental error occurred in order to reverse. Jackson, 983 So.2d at 568-69.
Even if the trial court had relied on the hearsay statements of the deceased co-defendant, a summary of which appears in the trial record, the court would not have fundamentally erred or erred at all, for that matter. The Sixth Amendment right of confrontation does not apply in sentencing proceedings. See Cameron v. State, 943 So.2d 938, 939 (Fla. 4th DCA 2006). As Justice Cantero noted in concurring in Rodgers v. State, 948 So.2d 655, 674 (Fla. 2006), "Virtually every federal appellate court has recently addressed the issue and has reaffirmed the longstanding principle that the Confrontation Clause does not apply to sentencing." (Citations omitted) (emphasis in original). Therefore, and particularly in light of the lack of objection, the court could have considered the statement of the co-defendant, and any such consideration would not constitute reliance on improper factors in sentencing Young. We also reject Young's contention that the court relied on other improper factors.
For the foregoing reasons, we affirm the conviction and sentence.
FARMER and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585646/ | 508 So.2d 901 (1987)
PONTCHARTRAIN STATE BANK
v.
Remy F. GROSS, II.
No. 87-CA-106.
Court of Appeal of Louisiana, Fifth Circuit.
June 1, 1987.
Robert A. Mathis, Metairie, for plaintiff-appellant.
John L. Diasselliss, III, LaPlace, for defendant-appellee.
Before GAUDIN, WICKER and GOTHARD, JJ.
WICKER, Judge.
This appeal arises from a suit for a deficiency judgment filed on behalf of plaintiff/appellant, Pontchartrain State Bank (Pontchartrain) against defendant/appellee, Remy F. Gross, II (Gross). The suit for deficiency judgment was filed after the seizure and sale of certain immovable property through executory process. Prior to trial on the suit for a deficiency, Gross filed an exception of no cause of action asserting that since the collateral pledge agreement was not filed in the executory proceeding that the executory process proceeding was fundamentally defective and bars a suit for a deficiency judgment. The trial judge sustained the exception of no cause of action and dismissed Pontchartrain's suit. We reverse and remand.
The original suit for executory process was filed in the 24th Judicial District Court for the Parish of Jefferson (No. 275-556). The suit contained inter alia:
1. A verified petition alleging that:
(a) Pontchartrain was the holder and owner of a certain demand promissory *902 note executed by Gross,[1] payable to the order of Pontchartrain in the amount of $122,000 dated March 10, 1982.
(b) the note was secured by a pledge of a certain "Bearer" collateral mortgage executed by Gross in the amount of $150,000 dated March 10, 1982.
(c) the collateral mortgage note was paraphed "Ne Varietur" for identification with a collateral mortgage dated March 10, 1982 and passed before a notary.
(d) Gross had made no payments of principal or interest on the $122,000 note.
(e) the $122,000 demand note was fully mature on its face and therefore Gross was in default.
(f) the collateral mortgage note was in default.
2. The promissory note of $122,000 was attached to the petition. On the back of the note was the following language: "This loan is secured by Collateral Pledge Agreement No. 4280." No pledge agreement was attached to the petition. In addition, the verified petition made no mention of this pledge agreement.
3. Both the "bearer" demand mortgage note of $150,000 and the collateral mortgage were attached along with the power of attorney. The collateral mortgage is an authentic act duly recorded and the $150,000 demand note is paraphed for identification with the act of mortgage.
Gross argues that the executory proceedings were defective for failure to attach the collateral pledge agreement referred to on the back of the $122,000 promissory note. The trial judge concluded that the pledge agreement was an integral part of the chain of authentic evidence and dismissed Pontchartrain's suit for a deficiency judgment for failure to state a cause of action.
Pontchartrain now specifies the following error:
That the trial court erred as a matter of law in finding that its suit for executory process was defective for failure to attach written evidence of the pledge of the collateral mortgage note.
In Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (La.1972) the Louisiana Supreme Court defined a collateral mortgage as:
a mortgage designed, not to directly secure an existing debt, but to secure a mortgage note pledged as collateral security for a debt or a succession of debts. The mortgage is usually drawn in favor of future holders, represented by a nominal mortgagee. For convenience in pledging, the companion promissory note is usually payable to bearer on demand. The maker may reissue the note from time to time. [Citations omitted] Foy, supra 260 So.2d at 630.
In Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450, 455-56 (La.App. 1st Cir.1976) the court explained the collateral mortgage as follows:
[a] collateral mortgage differs from other conventional mortgages in that money is not directly advanced on the promissory note that is paraphed `Ne Varietur' for identification with the act of collateral mortgage, rather this `collateral mortgage package' is pledged to secure an indebtedness that can be one which is pre-existing, contemporaneous or future. The full principal amount of the collateral mortgage note secures the principal and any other indebtedness of the hand note, including interest and attorney's fees. See New Orleans Silversmiths, Inc. v. Toups, [261 So.2d 252 (La.App. 4th Cir.1972)]; Odom v. Cherokee Homes, Inc., 165 So.2d 855 (La.App. 4th Cir.1964), writ ref. 246 La. 868,167 So.2d 677; Nathan and Marshall, [The Collateral Mortgage, 33 La.L.Rev. 297]; see also Nathan and Marshall, The collateral Mortgage: A Reassessment and Postscript, 36 La.L.Rev. 973 (1976). Id. at 455.
*903 The Cameron Brown South court also explained that:
the collateral mortgage is both a mortgage and a pledge. The collateral mortgage has been described as `the strange alchemy of the pledge of a mortgage created by the pledgor.' Sachse, Report to the Louisiana Law Institute on Article Nine of the Uniform Commercial Code, 41 Tul.L.Rev. 785, 799 (1967).
As a corollary, the collateral mortgage note does not represent the indebtedness; it is the security that is pledged to secure another note, usually a hand note, which represents the indebtedness. The true indebtedness is the debt that the collateral mortgage is pledged to secure. [Citation omitted]. Nevertheless, for the purposes of executory process, the collateral mortgage note is the `instrument evidencing the obligation secured by the mortgage.' [Citation omitted.] Id. at 455-56.
Thus, the $122,000.00 promissory demand note is the hand note; while the bearer demand note of $150,000.00 is the collateral mortgage note.
Executory process is a harsh remedy, requiring strict compliance with the law. Bank of St. Charles v. Eris, 477 So.2d 847 (La.App. 5th Cir.1985). Moreover, where the executory proceeding contains a fundamental defect which strikes at its foundation then such a defect is a defense to a deficiency judgment. Eris, supra; Mellon Financial Services Corp. v. Cassreino, 499 So.2d 1160 (La.App. 5th Cir.1986).
Nevertheless, with regard to whether a collateral pledge agreement is necessary for a valid executory process, our brothers in the fourth circuit have concluded that it is not an integral part of the evidence in support of the executory proceeding. Plumbing Supply House, Inc. v. Century National Bank, 440 So.2d 173 (La.App. 4th Cir.1983). We agree. The Century National Bank court reasoned that:
[a]s to the collateral pledge agreement, we note that while this document may be evidence of an intent to pledge, it is not necessary to perfect a pledge of the type involved in this case. The pledge here was of a `Ne Varietur' collateral mortgage note in Bearer form. To pledge such a negotiable instrument no written agreement or other formality beyond delivery to the pledge is required ... A promissory note secured by a collateral mortgage and payable to Bearer may be pledged by mere delivery. No authentic evidence of endorsement or transfer is required to entitle the transferee to foreclose by executory process ... Because no authentic evidence of the pledge of this `Ne Varietur' bearer note is required, the delivery of that note [by the debtor to the creditor] and [the creditor's] continued possession of that note until foreclosure was instituted was sufficient to support executory process. Id. at 176. See also, L.S.A.-C.C. Art. 3158.[2]
*904 We are not persuaded by Gross' argument that since Pontchartrain chose to include a reference to a collateral pledge agreement on the back of the $122,000.00 promissory hand note that it now made the agreement a necessary link in the chain of authentic evidence. The collateral pledge agreement was mere surplusage and could not affect the validity of the proceeding since Pontchartrain had included the $122,000.00 promissory hand note as an exhibit to the verified petition in compliance with L.S.A.-C.C.P. Art. 2637[3] and had also included authentic evidence of the collateral mortgage note and the collateral mortgage.
L.S.A.-C.C.P. Article 2635 provides, in part:
[t]he plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege.
Furthermore, L.S.A.-C.C.P. Article 2636 provides in part that:
[t]he following documentary evidence shall be deemed to be authentic for purposes of executory process:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege, paraphed for identification with the act of mortgage or privilege by the notary or other officer before whom it is executed.
Courts have construed L.S.A.-C.C.P. Article 2636 to mean that the instrument evidencing the obligation secured by the mortgage or privilege was the collateral mortgage note and not the hand note. Slidell Building Supply, Inc. v. I.D.S. Mortgage Corp., 273 So.2d 343 (La.App. 1st Cir.1972), writ denied 274 So.2d 708 (La.1973); Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir.1976); Fuller v. Underwood, 355 So.2d 62 (La. App. 2nd Cir.1978)
Pontchartrain's petition for executory process contains all of the necessary evidence to support an executory proceeding in compliance with the above-cited codal and jurisprudential authorities. We conclude that the failure to include the pledge agreement did not render the executory proceedings invalid for the reasons stated herein and we reverse the trial court's sustaining of the exception of no cause of action and his dismissal of Pontchartrain's suit for a deficiency judgment against Gross and remand.
REVERSED AND REMANDED.
NOTES
[1] Gross executed the documents contained in the petition for executory process through his lawful agent and attorney-in-fact, Jeffrey C. Montegut by a notarized power of attorney which was also attached to the petition.
[2] L.S.A.-C.C. Art. 3158 provides in pertinent part that:
[w]hen a debtor wishes to pledge promissory notes ..., he shall deliver to the creditor the notes ... so pledged, and such pledge so made... shall without further formalities be valid as well against third persons as against the pledger thereof, if made in good faith ... it is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, and the pledged instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, without any added notification or other formality, and the pledge shall be valid as well against third person as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations or liabilities shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them.
[3] In 1983 (Acts 1983, No. 185, Section 1), the legislature added the new paragraph C to L.S. A.-C.C.P. Art. 2637 which sets forth the evidence which need not be authentic for an executory proceeding to now include:
[i]f a mortgage sought to be enforced is a collateral mortgage on movable or immovable property, the existence of the actual indebtedness may be proved by the verified petition or supplemental petition, with the handnote, handnotes, or other evidence representing the actual indebtedness attached as an exhibit to the petition. [Emphasis supplied]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585842/ | 508 So.2d 354 (1986)
Robert M. ZIEJA, Appellant,
v.
METROPOLITAN DADE COUNTY, Appellee.
No. 86-179.
District Court of Appeal of Florida, Third District.
June 3, 1986.
On Motion for Rehearing June 23, 1987.
*355 Wiggins & Wiggins, and Elena Moure, Miami Shores, for appellant.
Robert A. Ginsburg, Co. Atty., and William L. Petros, Asst. Co. Atty., for appellee.
Before NESBITT, BASKIN and FERGUSON, JJ.
On Motion for Rehearing En Banc June 23, 1987.
PER CURIAM.
The trial court granted Dade County's motion for judgment on the pleadings, finding the county to be free of liability under the doctrine of sovereign immunity. We disagree but affirm on other grounds.
Zieja sustained injuries when he tried to rescue a court clerk in the Metro Justice Building from a knife-wielding attacker. Zieja attempted in his pleadings to state a cause of action against Dade County based upon the common law duty which a landlord owes to protect a business invitee from reasonably foreseeable dangers. Federated Department Stores v. Doe, 454 So.2d 10 (Fla. 3d DCA 1984). Zieja alleged not only that such an attack was foreseeable, but also that the lack of protection was the result of an operational decision concerning security. Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla. 3d DCA 1979). Sovereign immunity does not apply where the plaintiff demonstrates that the sovereign owes a common law duty and that the breach of that duty was the result of an operational decision. Trianon Park Condominium Assoc., Inc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985). Zieja has therefore alleged sufficient facts to overcome the defense of sovereign immunity.
The problem, as Dade County correctly points out, is that Zieja failed to allege that he was a business invitee. Consequently, we must affirm the judgment on the pleadings. However, since it is apparent that Zieja can state a valid claim, he should be given the opportunity to amend his pleadings. Cf. Hart Properties, Inc. v. Slack, 159 So.2d 236, 240 (Fla. 1963) (where summary judgment is appropriate, but the record reflects plaintiff otherwise has a valid cause of action, leave to amend should be granted; Cudlipp v. Blue Chip Laundry, Inc., 476 So.2d 783 (Fla. 4th DCA 1985) (same).
Affirmed with directions that the plaintiff be granted leave to amend his pleadings.
ON MOTION FOR REHEARING EN BANC
NESBITT, Judge.
We have granted rehearing en banc in this case to reconsider the question of whether a governmental entity may be held liable, pursuant to the legislature's waiver of sovereign immunity in section 768.28, Florida Statutes (1985), for its negligent operation of a courthouse building.[1] Previously, in our panel opinion, we held that Dade County owed the common law duty of a landlord to protect business invitees from foreseeable dangers within the Metro Justice Building. Since Zieja failed, however, to allege that he was a business invitee, we affirmed the trial court's judgment on the pleadings for Dade County with directions that Zieja be granted leave to amend his complaint. Finding, upon rehearing, that Dade County owed no duty with respect to the operation of the courthouse, we vacate the panel opinion, but again affirm the trial court's judgment.[2]
Zieja was injured in his attempt to rescue a court clerk from a knife-wielding attacker *356 in the Metro Justice Building. Zieja alleged that Dade County, as landlord of the court building, owed a common law duty to protect business invitees from reasonably foreseeable dangers and since the incident was a foreseeable danger the County was liable for negligently failing to provide protection. The trial court granted Dade County's motion for a judgment on the pleadings based upon the doctrine of sovereign immunity.
The first step in determining whether a government is liable for negligent conduct is to decide whether the alleged negligent act could possibly give rise to either a common law or statutory duty. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912, 917 (Fla. 1985). If the act is inherently governmental, there can be no duty owed to individual citizens. Trianon, 468 So.2d at 919-20; Reddish v. Smith, 468 So.2d 929, 932 (Fla. 1985). Additionally, the creation of section 768.28, waiving sovereign immunity in certain circumstances, created no new causes of action against a governmental entity which did not previously exist. Trianon, 468 So.2d at 914; Reddish, 468 So.2d at 932. Therefore, absent a recognized duty of care, the governmental entity is not liable, regardless of whether sovereign immunity attaches or is waived by section 768.28. Trianon, 468 So.2d at 919. See also Reddish, 468 So.2d at 932 (where there is no underlying duty the waiver statute is not applicable). Consequently, we must first determine whether it is possible for a duty of care to arise out Dade County's operation of the Metro Justice Building.
As an aid in determining whether there can be an underlying duty of care with respect to the alleged negligent conduct of a governmental entity, the Florida supreme court proposed four categories in which to classify the conduct involved. These are:
(I) Legislative, permitting, licensing, and executive officer functions;
(II) Enforcement of the laws and the protection of the public safety;
(III) Capital improvements and property control functions; and
(IV) Providing professional, educational, and general services for the health and welfare of the citizens.
Trianon, 468 So.2d at 919. If the conduct falls in either category I or II, it is inherent in the act of governing. Trianon, 468 So.2d at 919-20. Since there has never been a common law duty of care with respect to these types of activities, and since section 768.28 does not create any, the governmental entity cannot be held liable for its negligence arising out of such conduct. Trianon, 468 So.2d at 919-20. On the other hand, if the act complained of falls in either category III or IV, it is possible that the governmental entity may owe a duty of care, in which case further analysis of the issues under the doctrine of sovereign immunity and traditional tort law would be necessary. Trianon, 468 So.2d at 920-21.
Turning to the case at hand, we must determine whether the operation of the Metro Justice Building is an inherently governmental activity which cannot give rise to a duty of care, or if the County is merely exercising its property control function thus requiring further analysis. In order to ascertain the character of the activity we must attempt to classify it according to the four previously noted categories. It is Zieja's contention that the operation of the courthouse by the County falls within category III as a property control function. While it is generally true that when a governmental entity decides to operate a structure it assumes the same liability as a private individual in a like circumstance, Avallone v. Board of County Comm'rs of Citrus County, 493 So.2d 1002 (Fla. 1986); see also section 768.28(1), the operation of a courthouse is an activity which is not normally engaged in by private persons. Instead, the construction and operation of the courthouse is carried out by a governmental entity as an essential component to the enforcement of laws and the protection of the public safety. See County Comm'rs of Harford County v. Love, 173 Md. 429, 196 A. 122 (1938); Hartness v. Allegheny County, 349 Pa. 248, 37 A.2d 18 (1944); 12 Fla.Jur.2d, Counties and Municipal Corporations § 240 (1979). It is *357 also essential to the other agencies of government which carry on their day-to-day activities within the building, such as permitting, licensing, tax-collecting, etc. See Love, 196 A. at 124. The operation of the courthouse is, therefore, inherent in the county's act of governing. Cf. Reddish, 468 So.2d at 932 (the decision to transfer prisoners is not an activity normally engaged in by private persons and therefore the act is inherently governmental).
Furthermore, the operation of a courthouse, and like facilities, has traditionally been treated as a governmental function, giving rise to no liability. See Day v. City of Berlin, 157 F.2d 323 (1st Cir.1946) (pay toilet operation in city hall is governmental function); Brooks v. Baldwin County, 273 Ala. 138, 135 So.2d 816 (1961) (very nature of operating courthouse is a governmental function); Dineen v. City and County of San Francisco, 38 Cal. App.2d 486, 101 P.2d 736 (1940) (no liability for injuries which occur in that portion of courthouse used by government for governmental functions); Banks v. Downing, 46 Del. 127, 78 A.2d 865 (Super.Ct. 1951) (maintenance of county courthouse is a governmental function); Griggs v. City of Goddard, 233 Kan. 915, 666 P.2d 695 (1983) (maintenance of courthouse grounds is a governmental function); Howard v. City of New Orleans, 159 La. 443, 105 So. 443 (1925) (maintenance of elevator in courthouse is a governmental function); Love, 196 A. at 124 (county courthouse is impressed with governmental character); State ex rel. State Highway Comm'n. v. Board of County Comm'rs of Dona Ana County, 72 N.M. 86, 380 P.2d 830 (1963) (county courthouse property is maintained by the county in its governmental function); Cox v. City of Cushing, 309 P.2d 1079 (Okla. 1957) (maintenance of city hall is a governmental function); Hartness, 37 A.2d at 19 (maintenance of county courthouse partakes of the nature of a purely governmental function); accord Doerr v. City of Newark, 128 N.J.L. 491, 27 A.2d 198 (N.J. 1942); cf. City & County of Denver v. Austria, 136 Colo. 454, 318 P.2d 1101 (1957) (city went beyond governmental functions in erecting Christmas decorations at courthouse and therefore was liable for negligence in such an activity). "In the absence of a statute imposing such liability, a municipal corporation is not liable for negligence in the construction and maintenance of buildings or apparatus used solely for governmental purposes... . This rule applies to a courthouse and its appurtenances... ." 63 C.J.S. Municipal Corporations § 901 (1950); see also 18 E. McQuillin, Municipal Corporations § 53.92 (3d ed. 1984). Based upon the traditional treatment of courthouse operation as a governmental function and its inherently governmental nature, we find that it falls more squarely within category II. Because Dade County's operation of the Metro Justice Building is inherent in its act of governing, it cannot give rise to an underlying duty. Accordingly, the trial court correctly entered judgment for the County. Since we find that there is no underlying duty with respect to the county's operation of the courthouse, we need not reach the question of whether section 768.28 is applicable.
Since this question is one of great public importance, we certify the following question to the Supreme Court of Florida:
May a county be subject to liability as a landlord for the negligent operation of a courthouse building?
Accordingly, we affirm the judgment under review.
BARKDULL, HENDRY, HUBBART, DANIEL S. PEARSON and FERGUSON, JJ., concur.
Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
SCHWARTZ, Chief Judge (specially concurring).
Applying the principles stated in Trianon Park Condominium v. City of Hialeah, 468 So.2d 912 (Fla. 1985), I would place the decision to affirm on a holding that the county owed no duty to provide security to third persons like the plaintiff to safeguard them from prisoners within its custody. See Everton v. Willard, 468 So.2d 936 (Fla. 1985); Wong v. City of Miami, 237 So.2d 132 (Fla. 1970). I believe that the court's contrary emphasis on the location of the incident incorrectly resurrects *358 the governmental-proprietary function distinction which I had thought was laid to rest in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), and would perhaps lead to the unsupportable result of insulating the county from liability in, say, a slip-and-fall case in which it has negligently maintained the courthouse floor.
In accordance with this view, I would certify the following question of great public importance rather than the one framed by the court:
May a county be held liable for injuries arising out of the allegedly negligent failure to provide security from the acts of its prisoners?
BASKIN and JORGENSON, JJ., concur.
NOTES
[1] The legal basis for granting rehearing en banc is that "The case is of exceptional importance." Fla.R.App.P. 9.331(a).
[2] Since Dade County owed no duty to protect Zieja in this circumstance, Zieja would be unable to state a cause of action. Therefore, he need not be granted leave to amend his complaint, as we previously held in our panel opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585849/ | 508 So.2d 1209 (1987)
Steve WALKER
v.
CITY OF MOBILE.
1 Div. 371.
Court of Criminal Appeals of Alabama.
February 10, 1987.
Rehearing Denied March 10, 1987.
Certiorari Denied June 26, 1987.
*1210 John D. Rivers, Mobile, for appellant.
J.D. Quinlivan, Jr., Asst. City Atty., Mobile, for appellee.
Alabama Supreme Court 86-825.
BOWEN, Presiding Judge.
Steve Walker was convicted in the circuit court of Mobile County of disorderly conduct (Alabama Code 1975, § 13A-11-7(a)), and resisting arrest (§ 13A-10-41), and sentenced to ten days in jail. On appeal, he contends that the State failed to prove that there was a lawful underlying arrest to support the charge of resisting arrest and that the disorderly conduct charge resulted from his conduct in resisting an unlawful arrest. We reject both arguments.
I
Shortly after midnight on October 22, 1985, Mobile Police Officer Robert Duff received a "prowler call" to Houston Street. About five minutes earlier, he had received another prowler call to an area three or four blocks away.
Officer Duff drove to Houston Street, stopped his car, and observed the defendant standing on the sidewalk "in front of somebody's house looking at their house." Officer Duff testified:
"As I saw him to my right there, he apparently heard something or heard my car running because he looked towards where I was at. And he immediately started walking down the sidewalk towards Dauphin Street. At Clearmont there's a night light, a street light. I waited till he got in that vicinity before I stopped him. I parked my car and pulled up behind him. I asked him to halt, I wanted to talk to him. He stopped momentarily and he said, I ain't got nothing to say to you. Leave me alone. Started walking off again. I said, I want to talk to you, hold up just a second. And I reached out and grabbed him. He *1211 stopped, turned around and started cursing. He was loud and disorderly. He said I ain't got to talk to you. Started cursing me, using names. And he turned around and walked off again. I grabbed him again. And when I went to grab him again he swung. I stepped back. When he did, I hit him behind the back [with a night stick]."
* * * * * *
"We both struggled a little bit. Finally he was subdued and handcuffed."
* * * * * *
"Like I said I didn't get a chance to talk to him at all because he kept pulling away and pushing me. He refused to talk to me."
* * * * * *
"I'm just saying he was in the area, he was acting suspicious and I tried to detain him and ask him whereabouts was he going and who he was. He refused to cooperate and took a swing at me."
Officer Duff stopped the defendant only to question him. Duff testified that he arrested the defendant "for being disorderly and trying to hit me, resisting arrest."
"Q. Did you arrest him for not answering your questions?
"A. I arrested him because he was cursing me and took a swing at me and resisting me after he was placed under arrest.
"Q. You put him under arrest when?
"A. Let me back up. When he started cursing me then I put my hands on him.
"Q. Did you arrest him then?
"A. I attempted to.
"Q. Did you say you are under arrest?
"A. I don't recall. I may have. I don't recall at this time.
"Q. Did you read him his rights?
"A. No, I didn't.
"Q. Did you say the words, you're under arrest?
"A. I may have. I don't recall. There was a lot of confusion about that time."
Officer Duff testified that he "grabbed" and "physically touched" the defendant one time.
"I stopped him the first time. Turned around and he said he didn't have anything to say to me, get the F on out of here and leave him alone. He was going up the road somewhere. I don't know where he was going. He turned around and walked off. I said I want to talk to you, find out some information, what you're doing here, tried to get that out. And he turned loose again. I went to grab him the third time. That's when he took a swing at me."
Apparently, from the context of this testimony, the reference to "grab him the third time" was with regard to the "third time" Officer Duff had attempted to stop the defendant.
II
Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Officer Duff was justified in initially stopping the defendant for questioning because, based upon "the totality of the circumstances the whole picture," he had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The totality of the circumstances in this case warranted Officer Duff in stopping the defendant for questioning. Worthy v. State, 473 So.2d 634, 637-38 (Ala.Cr.App.1985).
Officer Duff did not need probable cause to arrest the defendant in order to stop him.
"Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose `observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to `investigate the circumstances that provoke suspicion.' United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). `[T]he stop and inquiry must be "reasonably related in scope to the justification for their initiation." `Ibid., (quoting Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct., at 1884).
*1212 Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released." Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 3150-51, 82 L.Ed.2d 317 (1984).
See also Terry, 392 U.S. at 34, 88 S.Ct. at 1886, where Justice White stated the following in a specially concurring opinion:
"Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation."
A common type of situation in which a stopping on the street for investigation occurs is when "a stop is made because a person is found near the scene of a recent crime and the police wish to determine if that person was the perpetrator." W. LaFave and J. Israel, 1 Criminal Procedure § 3.8 (1984).
"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See [Terry, 392 U.S.] at 23, 88 S.Ct. at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).
"Detentions are frequently sustained as reasonable when the suspect is discovered in proximity to a recently perpetrated offense." J. Cook, 1 Constitutional Rights of the Accused p. 52 (2d ed. 1985).
Section 15-5-30, Code of Alabama 1975, recognizes and sanctions a law enforcement officer's right to stop a person for questioning on less than probable cause by providing that an officer "may stop any person abroad in a public place whom he reasonably suspects is committing, has committed, or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."
Since Officer Duff was justified in making a Terry-type stop, he was also justified in using reasonable force to effectuate that stop. "Inherent in the officer's right to stop a suspect and demand his name, address, and an explanation of his actions is the right to detain him temporarily to verify the information given or to obtain information independently of his cooperation." State v. Fauria, 393 So.2d 688, 690 (La.1981). "In general, officers may take such steps as are `reasonably necessary to protect their personal safety and to maintain the status quo' so that the limited purposes of the stop may be achieved. United States v. Hensley, [469] U.S. [221], 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985)." United States v. Jones, 759 F.2d 633, 636-37 (8th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985). "Both a stop and an arrest are seizures within the meaning of the fourth amendment; by definition, once a person has been seized he or she has no right to leave, and the right to detain the suspect must include the right to enforce that detention by the use of force, if necessary." Williamson, The Dimensions of Seizure: The Concepts of "Stop" and "Arrest", 43 Ohio State L.J. 771, 816 (1982). Moreover, "most courts have held that use of force in making the seizure will not *1213 convert what is otherwise a Terry stop into an arrest." Id.
"It makes no sense to conclude that the officer's conduct must be viewed as an arrest from the outset simply because the restriction of defendant's liberty of movement was then complete and no significant new restraint followed when the police formally made the arrest. An investigatory stop is a complete restriction on liberty of movement for a time, and, if an arrest follows, the early stages of the arrest will not necessarily involve any new restraint of significance. A stopping for investigation is not a lesser intrusion because the restriction of movement is incomplete, but rather because it is briefer than an arrest, which (as emphasized in Terry) `is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.' Thus an otherwise valid stop does not inevitably escalate to an arrest merely because the suspect's car was boxed in by police cars, because the police drew weapons, or because reasonable nondeadly force was used to achieve or continue the seizure." LaFave, "Seizures" Typology: Classifying Detentions of the Person to Resolve Warrant, Grounds, and Search Issues, 17 U. of Mich.J. of Law Reform 417, 428-29 (1984).
Although this issue has not been decided by the Supreme Court of the United States, "[l]ower courts have concluded that a Terry-stop may include a forcible detention." Constitutional Rights of the Accused at p. 71.
In United States v. Kapperman, 764 F.2d 786, 790, n. 4 (11th Cir.1985), the following observation was made:
"Yet, neither handcuffing nor other restraints will automatically convert a Terry stop into a de facto arrest requiring probable cause. Just as probable cause to arrest will not justify using excessive force to detain a suspect, Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the use of a particular method to restrain a person's freedom of movement does not necessarily make police action tantamount to an arrest. The inquiry in either context is reasonableness."
See also United States v. Aldridge, 719 F.2d 368, 371 (11th Cir.1983) ("[A]n investigative stop does not become an arrest merely because the detaining officer directs the subject out of a vehicle.... Nor does an officer's display of a weapon necessarily convert an investigative stop into an arrest.").
III
A person resisting an investigatory stop is not guilty of resisting arrest. Smith v. State, 704 S.W.2d 791, 793 (Tex. App.1985) (a person fleeing an investigatory stop is not evading arrest); People v. Coffey, 67 Cal.2d 204, 60 Cal.Rptr. 457, 468-469, 430 P.2d 15, 26-27 (1967) (The statute making it a crime for a person to resist an arrest by a police officer is inapplicable to detention for questioning.).
Here, we need not determine the exact point at which the temporary stop escalated into an arrest. Officer Duff testified that he attempted to arrest the defendant "[w]hen he started cursing me then I put my hands on him." The officer's testimony as to why he arrested the defendant is somewhat confusing: "[F]or being disorderly and trying to hit me, resisting arrest. Cursing me. * * * I arrested him because he was cursing me and took a swing at me and resisting me after he was placed under arrest."
The defendant was "formally" placed under arrest after he had been subdued. Officer Duff testified that he "officially" told the defendant he was under arrest "after the struggle was over with. I had time. Before I had my hands full. I wasn't going to say, let's take a break, you're under arrest. When you're out there fighting you have your hands full."
Even if Officer Duff did not attempt to arrest the defendant until after the defendant had attempted to strike him, the defendant would still be guilty of resisting arrest because even after Duff struck the defendant they "both struggled *1214 a little bit" before the defendant was subdued.
There is a question about whether or not the defendant could have been lawfully arrested for disorderly conduct merely for his use of profanity towards Officer Duff. Von Sleichter v. United States, 472 F.2d 1244 (D.C.1972); Comment, 4 Rutgers-Camden L.J. 160 (1972); Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala.Cr.App. 1984); Annot., 14 A.L.R.4th 1252 (1982). See also Driskill v. State, 376 So.2d 678, 679 (Ala.1979). However, there is no doubt that Officer Duff was justified in arresting the defendant for disorderly conduct involving fighting or threatening behavior as defined in § 13A-11-7(a)(1).
The defendant's conviction for disorderly conduct was supported by evidence that he swung at and scuffled with Officer Duff.
"A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
"(1) Engages in fighting or in violent tumultuous or threatening behavior." Alabama Code 1975, § 13A-11-7(a)(1).
See also Hardy v. State, 455 So.2d 265 (Ala.Cr.App.1984); Nikolic v. City of Montgomery, 441 So.2d 997 (Ala.Cr.App. 1983).
After attempting to strike Officer Duff and continuing to struggle with him, the defendant was guilty of resisting arrest. By § 15-10-3, Officer Duff was authorized to "arrest any person without a warrant, on any day and at any time, for: (1) Any public offense committed or a breach of the peace threatened in his presence." Because the defendant was engaged "in the actual commission of a public offense," Officer Duff was not required to inform the defendant "of his authority and the cause of arrest." § 15-10-4. "[T]here are exceptions to the duty of an officer to make known his official capacity and the cause of arrest." Slaughter v. State, 47 Ala.App. 634, 638, 259 So.2d 840, cert. denied, 288 Ala. 751, 259 So.2d 845 (1972). A statement of the cause of the arrest is always mandatory except when the person is arrested in the commission of the act. Rutledge v. Rowland, 161 Ala. 114, 49 So. 461, 466 (1909).
The judgment of the circuit court is affirmed.
AFFIRMED.
TYSON, TAYLOR and PATTERSON, JJ., concur.
McMILLAN, J., concurs specially with opinion.
McMILLAN, Judge (concurring specially).
The facts in the present case constitute a classic "investigatory stop" as defined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The facts unquestionably support a finding that the law enforcement officer was justified in initially stopping the appellant.
There is no doubt that Officer Duff had an objective basis for formulating a particularized suspicion of the person stopped. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The two radio dispatches specifically describing a man prowling in a specific residential block enabled Officer Duff to formulate a particularized suspicion as to the man he observed acting suspicious and walking in the same location as communicated to him from a radio dispatch which described the identical circumstances.
Clearly, Officer Duff's physical observation of the defendant, and specifically his observation of the defendant's location, his method of travel, and his suspicious behavior constituted sufficient justification for an investigatory stop in light of a radio dispatch which described the same situation. Thus, Officer Duff did have a "particularized and objective basis for suspecting [this] particular person." United States v. Cortez, supra.
Of course, every so-called investigatory stop may not be justified. United States v. Cortez, supra. Had Officer Duff chosen to disregard the particularities of the radio dispatch and had he made a stop resulting from something less than an objective basis *1215 for formulating a particularized suspicion of the person stopped, then the stop would have been unwarranted. United States v. Cortez, supra. Had the law enforcement officer, after receiving a radio dispatch describing a lone, suspicious-acting prowler in a specific residential block, chosen then to randomly stop two men who were not acting suspiciously, riding in a car on a heavily traveled road away from the specific block given by the radio dispatch, then, of course, the stop would not have resulted from an objective basis for formulating a particular suspicion of those particular persons and, thus, would not have satisfied the requisite criteria for initiating a stop.
The law enforcement officer, in the present case, had an objective basis for a particularized suspicion of the person stopped. The law enforcement officer acted properly and is to be commended for his attention to duty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585676/ | 33 So.3d 815 (2010)
Cory BILOKI and Curtis Biloki, individually and d/b/a Card Brokers, and Brotts, Inc., a Minnesota corporation, Appellants,
v.
MAJESTIC GREETING CARD CO., INC., a Florida corporation, Appellee.
No. 4D09-3810.
District Court of Appeal of Florida, Fourth District.
April 28, 2010.
*817 Stacey D. Mullins of Lavalle, Brown, Ronan & Mullins, P.A., Boca Raton, for appellants.
Ryan E. Willits of Willits & Associates, P.A., Boca Raton, for appellee.
CIKLIN, J.
We reverse the circuit court's order denying defendants', Cory Biloki, Curtis Biloki, and Brotts, Inc., motion to dismiss for lack of personal jurisdiction. We hold that Majestic Greeting Card Co., Inc. has not established personal jurisdiction under Florida's long arm statute or otherwise shown that the defendants had sufficient minimum contacts such that Majestic could maintain its Florida lawsuit against the defendants.
Majestic, the plaintiff below, is a Florida corporation engaged in the business of creating, manufacturing, selling, and distributing greeting cards and related products. The Bilokis are North Dakota residents who, through their Minnesota corporate entity, Brotts, distributed greeting cards and related products to customers in the five Midwestern states.
The parties first met during a Las Vegas trade show in 2007. Following the trade show, the parties engaged in discussions surrounding Majestic's desired acquisition of Brotts' Midwestern inventory and accounts. In February of 2008, the Bilokis traveled to Majestic's facility in Florida and spent three days there to conclude the sale. During that three day period, the Bilokis signed a purchase agreement, wherein they sold the business assets of Brotts to Majestic, and entered into employment agreements with Majestic, all to be effective March 1, 2008. Subsequently, the relationship deteriorated and Majestic filed a complaint, alleging breach of the purchase and employment agreements based primarily on Majestic's contention that the Bilokis were competing with Majestic in the Midwest under a new name.
In its amended verified complaint in which it sought injunctive relief and money damages, Majestic alleged numerous factors in support of personal jurisdiction in Florida, summarized as follows:
1. Employment agreements
a) The Bilokis signed employment agreements in Florida and became Majestic employees conducting business in the Midwest.
*818 b) Non-compete clauses prevented the Bilokis from engaging in outside business.
c) Other clauses prevented the disclosure and use of confidential and proprietary information.
d) A forum selection clause designated Palm Beach County as "the proper jurisdiction and venue for any controversy or claim ..."
2. Purchase agreement
a) The Bilokis signed the purchase agreement in Florida.
b) The Bilokis agreed to and delivered "plan-o-grams"[1] to Majestic in Florida.
3. The Bilokis traveled to Majestic's production and shipping facility in Florida for the purpose of conducting the sale of their business, executing the purchase agreement and employment agreements, and to learn Majestic's policies and procedures. The Bilokis spent three days at this facility.
4. The Bilokis submitted customer orders from the Midwest to be filled at Majestic's warehouse facility in Florida.
a) Customer payments were delivered from the customer to Majestic in Florida or to the Bilokis, who would then remit the payments to Majestic in Florida.
5. The Bilokis breached their contract with Majestic by competing with them in the Midwest under the name of "Card Brokers," violating the non-competition provision of the employment agreement, and using confidential and proprietary information gained from Majestic in violation of the non-disclosure clause.
The Bilokis and Brotts filed a motion to dismiss Majestic's amended verified complaint for lack of personal jurisdiction. The motion was supported by affidavits from both Cory and Curtis Biloki, summarized as follows:
1. The Bilokis have never lived, worked, or conducted business in Florida. Apart from a single trip to tour Majestic's facility, learn Majestic's order fulfillment procedures, and execute a one page purchase agreement, neither has ever traveled to Florida.
2. The Bilokis maintained their own office in North Dakota and received no training, direction, business, technical, or other support from Majestic.
3. The only daily contact the Bilokis had with Majestic was faxing orders to Majestic from the Biloki's Midwestern customers.
4. Neither of the Bilokis believe they signed the employment agreements dated March 1, 2008. The only document they admit to signing was the purchase agreement on February 18, 2008.
5. Neither of the Bilokis have been paid by Majestic for the work they have done.
After a hearing, the trial court found that Majestic met its burden to establish personal jurisdiction over the three defendants in Florida and denied the defendants' motion to dismiss. This appeal follows.
Two-Pronged Analysis to Determine If Personal Jurisdiction Exists Over Nonresidents
There is a two-step inquiry for determining whether a Florida court has *819 personal jurisdiction over a nonresident. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). First, it must be determined whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida's long arm statute, section 48.193. Id. If so, then secondly, it must be determined whether there are sufficient "minimum contacts" to satisfy due process requirements under Federal constitutional law. Id. "Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant." Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002). At the trial level
The initial burden falls on the plaintiff to plead the basis for service under the long-arm statute. The plaintiff may satisfy this initial burden either by alleging the language of the statute without pleading supporting facts, or by alleging specific facts that indicate that the defendant's actions fit within one of the sections of Florida's long arm statute, section 48.193.
Additionally, "a defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position." If a defendant submits such an affidavit, then the burden shifts back to plaintiff to submit affidavits establishing the basis for jurisdiction.
Becker v. Hooshmand, 841 So.2d 561, 562 (Fla. 4th DCA 2003) (citations omitted).
Step 1: Florida's Long Arm Statute
Majestic asserted jurisdiction on two long arm statutory grounds: section 48.193(1)(g) and section 48.193(2), Florida Statutes, (2009).
Section 48.193(1)(g), Fla. Stat., provides:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:....
(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.
Section 48.193(2), Fla. Stat., provides:
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
48.193(1)(g)Breach of Contract
Section 48.193(1)(g), Fla. Stat., provides for jurisdiction if a contract is breached by the failure to perform what is required by the contract in Florida. Majestic relies upon the forum selection clause and the breach of the non-compete clauses in the employment agreements in its attempt to establish jurisdiction under section 48.193(1)(g).
Florida courts have found that "a forum selection clause, designating Florida as the forum, cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant." McRae v. J.D./M.D., Inc., 511 So.2d 540, 542, (Fla.1987). The "availability of subsection (1)(g) to obtain jurisdiction requires that there be a breach of an act required to be performed in this state." Hamilton v. Alexander Proudfoot Co. *820 World Headquarters, 576 So.2d 1339, 1340 (Fla. 4th DCA 1991).
Majestic's amended verified complaint alleged only that the Bilokis breached the non-compete portion of their employment agreements by soliciting customers outside of Florida. Majestic did not allege nor did it establish record evidence that the Bilokis were to perform or failed to perform any acts in Florida, thereby constituting a breach of any of the agreements entered into between the parties. See KVAR Energy Sav., Inc. v. Tri-State Energy Solutions, LLP, No. 6:08-cv-85-Orl-19KRS, 2009 WL 103645, *13 (M.D.Fla. Jan. 15, 2009) (Delaware company signed contract in Florida to sell plaintiff's products in Delaware. Complaint filed for breach of non-competition provision where defendant Delaware company sold products under its own name in Delaware. Reviewing court found the argument foreclosed "by the statutory language [in section 48.193(1)(g)] explicitly requiring contractual performance in Florida.").
Subsection (1)(g) has no application in this matter.
48.193(2)General Jurisdiction/Substantial Activity
Section 48.193(2), Fla. Stat., is the general jurisdiction statute in Florida. That statute provides that a nonresident defendant who is "engaged in substantial and not isolated activity within this state... is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity." This standard has been interpreted by Florida courts to require a "showing of `continuous and systematic general business contacts' with the forum state." Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Florida courts have "found continuous and systematic general business contacts," Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868, "where a nonresident defendant's activities are extensive and pervasive, in that a significant portion of the defendant's business operations or revenue derived from established commercial relationships in the state. Such contacts have also been found where the defendant continuously solicits and procures substantial sales in Florida." Trs. of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788, 793 (Fla. 4th DCA 2009). "General jurisdiction requires far more wide-ranging contacts with the forum state than specific jurisdiction, and it is thus more difficult to establish." Canale v. Rubin, 20 So.3d 463, 466 (Fla. 2d DCA 2009). "One reason for requiring a more rigorous showing to establish general jurisdiction is because jurisdiction under section 48.193(2) does not require that a lawsuit's cause of action arise from activity within Florida, or that there be any connection between the claim and the defendant's Florida activities." Trs. of Columbia, 12 So.3d at 792.
Majestic maintains that the Bilokis engaged in a general course of business activity in Florida for pecuniary gain, pursuant to their several written contracts with Majestic, that was continuous and ongoing from December 2007 to June 2009. In support of that notion, Majestic asserts that there was daily contact with Majestic's Florida warehouse through the transmission of orders from the Biloki's Midwest customers. In fact, sales were completed through shipments from Majestic's Florida warehouse and payments for the goods shipped were received by Majestic in Florida. While all of these facts may be true, they are simply insufficient to establish "substantial activity" within the State of Florida such that the Bilokis and Brotts purposefully or knowingly *821 could reasonably anticipate being haled into a Florida court.
In determining general jurisdiction, "it must be the acts of the ... [party objecting to jurisdiction] described in the long-arm statute that confer the jurisdiction." Vaughn v. AAA Employment, Inc., 511 So.2d 1045, 1046 (Fla. 2d DCA 1987). There needs to be more than a contractual relationship for general jurisdiction to apply between an out-of-state employee and Florida employer. See Mold-Ex, Inc. v. Mich. Tech. Reps., Inc., No. 304CV307MCRMD, 2005 WL 2416824, *5 (N.D.Fla. Sept. 30, 2005) ("MTR's only contact with the State of Florida was its long-term contractual relationship (entered into out of state) with a Florida plaintiff which required it to find buyers for the plaintiff in markets other than Florida and to service those out of state relationships from Michigan. These contacts are far too attenuated to support a finding of continuous and systematic contacts with the State of Florida under § 48.193(2)."); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla. 4th DCA 1998) (general personal jurisdiction found over a defendant who had a three-year distribution relationship with a Florida Corporation, consistently ordered one or two cases of product per month, and became a distributor for another company located in Florida).
Here, the Bilokis' contact with Florida was limited to the submission of greeting card orders to Majestic's Florida warehouse for shipment to Midwestern customers. The only time the Bilokis had been to Florida was for three days to tour Majestic's facility, learn order fulfillment procedures, and execute documents related to the sale.
These facts do not provide evidence of "substantial" activity within Florida to satisfy jurisdiction pursuant to subsection (2).
Step 2: Sufficient Minimum Contacts
Under the due process clause, individuals may be haled into a jurisdiction in which they have "purposefully avail[ed]" themselves. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). This means that the defendant has deliberately engaged "in significant activities within a state or has created `continuing obligations' between himself and residents of the forum." Id. at 475-76 (citations omitted). The test for "minimum contacts" thus hinges on whether "defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
In order for a nonresident defendant to anticipate being haled into a Florida court, it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within Florida, thus invoking the benefits and protections of its laws. Burger King Corp., 471 U.S. at 474-75, 105 S.Ct. 2174.
Like the analysis required in connection with section 48.193(2), there simply was not enough participation within or with Florida by the appellants to constitute sufficient minimum contacts for jurisdiction. See SDM Corp. v. Kevco Fin. Corp., 540 So.2d 931, 932 (Fla. 2d DCA 1989) ("An out-of-state party's contract with a Florida resident alone ... is insufficient to establish minimum contacts.").
Conclusion
We reverse and remand with instructions to enter an order granting the motion to dismiss Majestic's complaint.
*822 Reversed and remanded with instructions.
GROSS, C.J., and FARMER, J., concur.
NOTES
[1] A "plan-o-gram" is a graphic representation of a retail greeting card sales rack and the cards and categories displayed for sale therein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585679/ | 321 N.W.2d 921 (1982)
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BISMARCK, Plaintiff and Appellant,
v.
COMPASS INVESTMENTS, INC., R. F. Schirber, A. F. Kosir and John C. Lindsay, Defendants and Appellees.
Civ. 10150.
Supreme Court of North Dakota.
July 12, 1982.
Rausch & Rausch, Bismarck, and Law Student Lauris Molbert, for plaintiff and appellant; argued by Richard P. Rausch, Bismarck.
Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for defendants and appellees; argued by Albert A. Wolf, Bismarck.
SAND, Justice.
First Federal Savings & Loan Association [Pl. S & L] appealed from a summary judgment of dismissal in an action it brought against Compass Investments, Inc., R. F. Schirber, A. F. Kosir, and John C. Lindsay [Df. guarantors].
On 6 April 1979 Compass Investments, Inc. executed and delivered to plaintiff S & L a promissory note in the amount of $2,812,500 bearing interest at eleven percent per annum and a mortgage on certain real property as security for the note. As part of the transaction, an assignment of rents was made to Plaintiff S & L. The proceeds of the note (loan) were to be used to construct an apartment project consisting of 152 living units with accompanying garages, a swimming pool and an athletic court. On 26 June 1979 a guaranty was executed by R. F. Schirber, A. F. Kosir, *922 Betty Lovgren and W. F. Bianco, Sr. Later, on 9 April 1980, Compass Investments, Inc., through its president, A. F. Kosir, and John C. Lindsay, individually and as secretary-treasurer of Compass Investments, Inc., were substituted as guarantor for and in place of Betty Lovgren and W. F. Bianco, Sr.
The pertinent provision of the guaranty states:
"NOW, THEREFORE, the undersigned, as guarantors, jointly and severally guaranty to the Merchants National Bank and Trust Company of Fargo and Myron H. Atkinson, Jr. as Co-trustees and for the use and benefit of all persons, firms and corporations interested including First Federal Savings and Loan Asosociation of Bismarck as the named mortgagee, the full completion of said apartment complex above noted pursuant to the plans and representations made; that the undersigned further covenants that the proceeds of the said loan will be disbursed according to the policy and procedure of said lending association and to be used in the construction of the said improvements; that in the event for any reason other than war, strikes, action of the government or circumstances clearly beyond the control of guarantors, the said project is not fully completed by mortgagor then and in that event the undersigned promise and agree to pay any and all costs, expenses, damages and all other expenditures which may be incurred by either the said Trust or the mortgagee in completing the project as above set forth.
"IT IS UNDERSTOOD that this shall be a continuing guaranty and remain in full force and effect until the said project shall be so completed and certified as completed by owner and its architect at which time, after inspection has been had by mortgagee and approved by this guaranty, shall then be deemed terminated and discharged."
After two years from its inception, the project is incomplete, with approximately one-half of the units finished. More than a year has elapsed since any work has been performed. The $2,812,500 obtained as a result of the promissory note and mortgage was fully expended on the project. The approximate sum needed to complete the project is $1,222,000. The plaintiff S & L brought an action against the guarantors for the sum required to complete the project. Discovery proceedings were commenced. Plaintiff S & L moved for summary judgment in its favor based on the pleadings, depositions, and exhibits or in the alternative to strike certain paragraphs from the answer on the grounds that they did not constitute a defense and were immaterial to the issue. A return to the motion for summary judgment was filed, together with counter affidavits of the defendant guarantors and W. F. Bianco, Sr.
After hearing arguments, the court issued its memorandum opinion in which it concluded the pleadings failed to state a cause of action upon which relief could be granted and accordingly dismissed the action of the plaintiff S & L. The plaintiff S & L petitioned for a rehearing which was denied by the court and the judgment of dismissal was issued and entered. Plaintiff appealed to this Court.
The plaintiff S & L on appeal contended that the trial court erroneously concluded that the only obligation of Compass Investments, Inc., was to repay the amount borrowed and mistakenly applied NDCC § 22-01-12, and erroneously concluded that the complaint failed to state a cause of action and, on that basis, dismissed the complaint.
Our primary responsibility is to determine if the complaint states a cause of action.
In Newman v. Hjelle, 133 N.W.2d 549, 555 (N.D.1965), this Court said:
"The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
In Gowin v. Hazen Memorial Hospital Ass'n, 311 N.W.2d 554, 556 (N.D.1981), we quoted with approval the above statement from Newman, supra, and separately stated:
*923 "When determining the sufficiency of a plaintiff's claim, the court should look at the substance of the claim alleged and not merely at the language used. The determination of a claim's sufficiency should be tempered with a liberal construction in favor of upholding the plaintiff's right to be heard."
Applying the above principles to the instant case, we conclude that the complaint states a cause of action and should not have been summarily dismissed.
We also note that Compass Investments, Inc., became a substitute guarantor in addition to being a mortgagor, and promissor of the note, which may have a bearing on the legal effect of the contract of guaranty. See, Mandan Security Bank v. Heinsohn, 320 N.W.2d 494 (N.D.1982).
In Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640, 643 (N.D.1980), we defined a contract of guaranty as follows:
"The contract of a guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and not merely an engagement jointly with the principal to do the thing... [Citations omitted.] A liability such as this, although it may result in requiring a guarantor to pay the note, is not predicated upon `the terms of the instrument,' but upon a contract entirely separate and distinct. Northern State Bank v. Bellamy, 19 N.D. 509, 125 N.W. 888, 890 (1910)."
See also NDCC § 22-01-01.
In determining the true meaning and effect of a guaranty the courts must necessarily apply the appropriate statutes, Ch. 22-01, NDCC, Guaranty, particularly §§ 22-01-01 through 22-01-06, and the applicable rules of law on contracts. In making these observations, we are not implying that these statutes or principles of law are the only ones that may apply. However, in full recognition of our adversary system in judicial matters, we hesitate to make any further suggestions or observations for fear we might inadvertently render unwarranted aid to one side or the other. Under our adversary system it is up to the parties to bring to the attention of the court the legal concepts and facts that should be considered. Furthermore, our primary function is to review actions taken and any suggestions or observations may well be the equivalent of an advisory opinion on our part, which is not the judicial function of this court. State v. Meier, 127 N.W.2d 665, 674 (N.D.1964); N.D.Const. Art. VI, § 10.
From our examination of the record, we doubt the case is appropriate for a summary judgment because findings of fact are necessary to determine the full and true meaning and effect of the action of the parties in relation to the guaranty. Roeders v. City of Washburn, 298 N.W.2d 779 (N.D.1980); Albers v. Nodak Racing Club, Inc., 256 N.W.2d 355 (N.D.1977).
The case is remanded for a trial on the merits and the holding of an evidentiary hearing for the purpose of receiving such appropriate and competent evidence as the parties may wish to present.
PAULSON and PEDERSON, JJ., and MUGGLI, Surrogate Judge[*], concur.
VANDE WALLE, Acting Chief Justice, concurring specially.
I agree there may be findings of fact necessary to determine the full and true meaning and effect of the action of the parties in relation to the guaranty which would make summary judgment inappropriate in this instance. The majority opinion refers to the decision in Mandan Security Bank v. Heinsohn as possibly having a bearing on the legal effect of the contract of guaranty. Insofar as that decision may be applicable, I adhere to my dissent in that case.
NOTES
[*] Muggli, Surrogate Judge, sitting in place of Erickstad, C. J., disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585942/ | 763 F.Supp. 772 (1991)
Karen L. GRUVER, Plaintiff,
v.
EZON PRODUCTS, INC., Defendant.
Civ. A. No. 1:CV-90-2078.
United States District Court, M.D. Pennsylvania.
March 22, 1991.
*773 Jonathan M. Crist and Arthur V. Diveglia, Arthur V. Diveglia, P.C., Harrisburg, Pa., for plaintiff.
Jason S. Shapiro, McNees, Wallace & Nurick; and Franklin A. Miles, Jr., Harrisburg, Pa., for defendant.
MEMORANDUM
RAMBO, District Judge.
Before the court is defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) counts III and IV of plaintiff's complaint. The issues raised have been fully briefed, and the matter is ripe for consideration.
Background
Plaintiff Karen L. Gruver had been a warehouse worker employed by defendant Ezon Products. In her complaint, the allegations of which must be taken as true for the purpose of this motion, plaintiff states that during the course of her employment with Ezon she was subjected to various forms of sexual harassment by her supervisor, which, though reported to the company, went unpunished. Gruver alleges that this conduct led to an intolerable work environment, resulting in her constructive discharge in April 1989.
In November 1990 Gruver brought suit against her former employer, alleging that the company's conduct violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter Title VII), and three pendent state law claims. Count II of the complaint, the first of the state law claims, posits that plaintiff's rights under the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. §§ 951-963 (Purdon 1964) (hereinafter "PHRA") were violated by the company's conduct. In Count III, plaintiff argues that defendant, by allowing the harassment to go unpunished, breached a provision of an employment contract established by an employee handbook. Count IV lists a claim for intentional infliction of emotional distress.
Defendant brought this motion to dismiss the latter two claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
Discussion
I. Breach of Employment Contract Claim
In her complaint, plaintiff appears to be asserting that an employee handbook circulated by defendant established an employment contract with her. She does not appear to claim that she was entitled to be discharged without just cause under the contract, but rather that the company had breached one of the contract's terms to plaintiff's detriment. The term in question, excerpted from the handbook, reads:
E. SEXUAL HARASSMENT
It is the policy of Ezon Products Company to provide a work environment free of sexual harassment. Sexual harassment is defined as "unwelcomed sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature" between any Ezon employees and extends to those with whom we conduct business, including outside vendors and customers.
Also, all management employees are strongly advised to avoid any social relationships with employees over whom they have supervisory control.
Sexual harassment will result in termination.
Employee Handbook at 23-24.
Plaintiff contends that the terms of the handbook, including the one cited above, became the guidelines for a unilateral employment contract when she accepted the job at Ezon. The clearest and most recent discussion of the standards for when a *774 handbook becomes part of an employment contract appears in Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 564 A.2d 151 (1989). Morosetti concerned a class action suit by employees of a company who, when their employer was sold, were given the option of accepting severance pay or positions with the purchasing company. After accepting positions with the new company, the plaintiff employees then claimed that they were entitled to severance pay as well. The defendant company admitted having a severance pay policy in place, but that it was not communicated to employees. The trial court directed a verdict for the plaintiffs, holding that a corporate handbook constituted the offer of severance pay, and the acceptance of employment the acceptance of the severance offer. Morosetti, 564 A.2d at 152.
The Pennsylvania Supreme Court disagreed, and held that there was no contract for severance pay. The court was swayed by the fact that, though the defendant company from time to time issued flyers announcing various employee benefits, it never made known the severance pay policy. The guidelines for the policy were outlined in a manual for the use of the personnel manager, but not put into general circulation.
This court is cognizant that nowhere in Morosetti does the Pennsylvania Supreme Court hold that a handbook distributed to employees after the commencement of employment becomes part of an employment contract. In fact, Justice Zappala, in his concurrence, takes pains to point out this distinction:
[T]his court has not yet addressed the issue as to whether an employee handbook unilaterally issued by an employer constitutes part of an employee's contract of employment, [nevertheless] the dicta in the majority's opinion may be construed prematurely as controlling.... Having concluded that the uncommunicated personnel manual could not be equated with a handbook, the majority's statement is of no precedential value. I write then only to emphasize that the issue of the effect of the distribution of an employee handbook has not been resolved by this Court....
Id. 564 A.2d at 153 (Zappala, J., concurring).
The majority opinion appears to narrowly circumscribe the situations where portions of a handbook may become, unilaterally, part of an employment contract. The court stated that an offer must be based on more than a general awareness of the existence of a policy the term must be "intended, definite [and] specific." The court went on to state that "[i]t is not sufficient to show they had a policy. It must be shown they offered it as binding terms of employment. A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require." Id. 564 A.2d at 152 (citation omitted).
In arguing that the Ezon handbook created a binding contract with her, plaintiff asserts that it was reasonable that she should interpret the language of the handbook as creating a contractual provision in her favor. She was a woman entering a male-dominated warehouse work environment, and the sexual harassment provision in the handbook states in no uncertain terms that employees who engage in sexual harassment will be terminated.
Plaintiff may be correct that this handbook section was sufficiently definite to create a term of her employment. However, Morosetti requires that, for a policy to become part of an employment contract, it must be part of the offer of employment an inducement to join the company. Nowhere in her complaint does plaintiff state that she accepted employment at Ezon because of the anti-harassment section of the handbook or that the definite terms of the policy were made known to her prior to her acceptance. All the court can glean from the complaint is that Gruver became aware of the provision at some point in the course of her employment and that the handbook was distributed to her "upon commencement of her employment." Complaint at ¶ 17.
*775 Gruver's situation is similar to the plaintiffs in Morosetti. Like them, she did not accept the benefit as a term of employment, but instead apparently became aware of the provision after commencing work. According to the facts specified in the complaint, a guaranteed harassment-free workplace was not an inducement to employment. Accordingly, Gruver has failed to plead that a contract for employment including an anti-sexual harassment term was in existence, and thus defendant's motion to dismiss count III must be granted.
II. Intentional Infliction of Emotional Distress Claim
Plaintiff appears to agree with defendant's assertion that plaintiff's claim for intentional infliction of emotional distress may be dismissed because § 303 of the Pennsylvania Workmen's Compensation Act, 77 Pa.Stat.Ann. § 481(a) (Purdon Supp.1990) presents the exclusive remedy for such a claim. Plaintiff, instead, urges the court to accept the theory that the complaint sets forth a claim for intentional infliction of emotional distress under retaliatory conduct standards discussed by this court in Bowersox v. P.H. Glatfelter Co., 677 F.Supp. 307 (M.D.Pa.1988). In Bowersox, however, the court used a "retaliatory conduct" analysis to move a supervisor's conduct from the realm of the insulting and annoying to the realm of "outrageous" within the definition of the tort, not as a means of creating an exception to preemption by the state workmen's compensation statute.
The court's inquiry does not stop here, however. As a launching point, the court notes that it has consistently held that the courts of Pennsylvania recognize the tort of intentional infliction of emotional distress. See Shoop v. Dauphin County, No. 3:CV-89-1498, slip op. at 7-9 (M.D.Pa. April 11, 1990); Bowersox, 677 F.Supp. at 309-10.
The preemption section of the Workmen's Compensation statute reads:
(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes ... on account of any injury or death as defined in section 301(c)(1) and (2)....
77 Pa.Stat.Ann. § 481(a) (Purdon Supp. 1990). The injuries covered exclusively by workmen's compensation include "an injury to an employe ... arising in the course of his employment and related thereto...." Id. at § 411(1). The statute does include some exceptions, though.
The term `injury arising in the course of employment' ... shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer....
Id.
In Schweitzer v. Rockwell International, 402 Pa.Super. 34, 586 A.2d 383 (1990), the Pennsylvania Superior Court considered the preclusive effect of the Workmen's Compensation statute on a claim for intentional infliction of emotional distress arising from a sexual harassment situation in a workplace. In Schweitzer, the plaintiff alleged that her supervisor had made lewd remarks to her and attempted to fondle her. When she refused, she was transferred to a different position. The Schweitzer court recognized that, under the Superior Court case Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980), a fellow employee may be considered a third person who intends to injure an employee for personal reasons within the dictates of the Workmen's Compensation Act. In holding that the plaintiff's injuries at the hands of her supervisor fit within that category, and that common law tort claims were thus not preempted, the court stated that "the alleged emotional distress arose from harassment personal in nature and not part of the proper employer/employee relationship."
This court finds the Superior Court's reasoning in Schweitzer convincing. Here, as in Schweitzer, plaintiff's claims arise from alleged harassment, including physical *776 harassment, by a superior. This court, like the Schweitzer court, believes that harassment of a sexual nature in the workplace has nothing to do with work, but rather stems from reasons personal to the party foisting his attentions on a co-worker.
Defendant's reliance on Poyser v. Newman & Company, 514 Pa. 32, 522 A.2d 548 (1987) is misplaced, as explained in Schweitzer. Poyser involved a suit against a company for deliberate derilictions by the company, not by a particular third person.
Therefore, as plaintiff's claim for intentional infliction of emotional distress stems from alleged harassment by a third person who is acting from purely personal motivations, the court will allow the claim to go forward.
ORDER
Pursuant to the accompanying memorandum, IT IS HEREBY ORDERED THAT defendant's motion to dismiss as it involves Count III of plaintiff's complaint is GRANTED; with regard to Count IV of the complaint, it is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1585948/ | 763 F.Supp. 622 (1991)
David H. FLECK and Carol L. Couchenour, Plaintiffs,
v.
CABLEVISION VII, INC., Heritage Communications, Inc., and Tele-Communications, Inc., Defendants.
Civ. A. No. 90-1041 SSH.
United States District Court, District of Columbia.
April 10, 1991.
*623 Douglas V. Rigler, Bruno A. Ristau, Joel E. Leising, Herbert E. Milstein, Andrew N. Friedman, Gary E. Mason, Washington, D.C., for plaintiffs.
Carter G. Phillips, Mark D. Hopson, Nancy A. Temple, Sidley & Austin, Washington, D.C., for defendants.
OPINION
STANLEY S. HARRIS, District Judge.
This matter is before the Court on three motions: plaintiffs' motion for class certification, defendants' motion to dismiss counts II and III of the amended complaint, and defendants' motion for an extension of time in which to respond to count I. Upon consideration of the motions, the parties' oppositions and replies, and the entire record herein, the Court denies plaintiffs' motion for class certification, denies defendants' motion to dismiss, and grants defendants' motion for an extension of time.
Background
This action arises out of the purchase of a limited partnership's assets by the general partner. Defendant Cablevision VII, Inc. (Cablevision or the General Partner), was the general partner in Cablevision Associates VII (the Partnership), an Iowa limited partnership that acquired and operated cable television systems. Cablevision VII is a wholly-owned subsidiary of defendant Heritage Communications (Heritage) which, in turn, is a wholly-owned subsidiary of defendant Tele-Communications, Inc. (TCI).
Plaintiffs David H. Fleck and Carol L. Couchenour jointly owned five interests in the Partnership which they inherited from their father, Harold J. Fleck. Harold Fleck purchased the interests during the initial limited partnership offering in 1983. The interests were offered through a prospectus for $1,000.00 each with a five-interest minimum per investor.[1] The prospectus indicated that the Partnership was established to "acquire, construct or improve, develop and operate cable television systems." The status of limited partner offered investors the opportunity to share in the Partnership's profits without participating in its management and with limited liability. The investment also offered potential tax advantages through passive activity losses. To ensure that the limited partners would qualify for the tax advantages, the Partnership required investors to warrant that they had sufficient income and net worth to make the investment appropriate.
The prospectus highlighted several aspects of the Partnership Agreement (Agreement) and included a copy of the Agreement as an attachment. The Agreement detailed the rights and obligations of the parties and authorized the General Partner to "exercise any and all other rights and powers of general partners of limited partnerships organized under the laws of the state of Iowa." The Agreement also included a general choice of law provision specifying Iowa law to govern the relationship of the parties.
*624 Section 9.5 of the Agreement provided two procedures by which the Partnership could sell its assets to the General Partner.[2] The first procedure required the approval of "the limited partners holding at least a majority of the Interests then outstanding." The second procedure did not require the limited partners' approval if the General Partner provided consideration "not less than the greater of (i) the highest acceptable bid in a public bidding process ... and (ii) the average of three separate independent appraisals of such Systems and Franchises." The Agreement did not provide a direct mechanism for the General Partner to purchase the limited partners' interests rather than the Partnership's assets. However, the Agreement did allow amendment "to the extent permissible under applicable partnership law" by the affirmative vote of the limited partners owning a majority of the interests. The amendment provision specifically anticipated amendment in the context of a sale of the Partnership's assets and reiterated that the limited partners' approval was necessary for such a transaction.
The Partnership began acquiring cable television systems in May 1984 and eventually owned and operated six cable systems in Iowa and one in Colorado. In 1987, Cablevision's parent corporation, Heritage, merged with TCI and became a wholly-owned subsidiary. Heritage then divested most of its non-cable television operations and began to explore ways to increase its ownership interest in the cable systems owned by its subsidiary limited partnerships. In the case of the Cablevision VII partnership, Heritage concluded that an offer to purchase the limited partners' interests would suit its objectives.[3] Accordingly, the General Partner sent the limited partners a consent statement on November 21, 1988, announcing a special meeting 21 days later on December 12, 1988. The consent statement proposed amending the Partnership Agreement to allow the General Partner to purchase the limited partners' interests. If a majority of the interests not affiliated with Heritage approved the amendment, the limited partners would then vote on the proposed terms of the sale.
The consent statement detailed the terms of the proposed sale and included 11 attachments: the Partnership Agreement, an appraisal of the value of the systems by Malarkey-Taylor Associates, a fairness opinion letter from Shearson Lehman Hutton, Inc., opinions of legal counsel, and the Partnership's most recent annual and quarterly reports. The General Partner estimated the cable systems to be worth $61,244,200.00. The proposal deducted from that amount the Partnership debts, adjustments to working capital, and the expenses of the sale, to reach the sale price for the limited partners' interests. In addition, the consent statement included disclosure provisions regarding the General Partner's fiduciary relationship to the limited partners, the conflicts of interest inherent in the sale, and the consequences of the sale to the limited partners and the General Partner. Finally, the General Partner specifically disclosed that it had not solicited offers to purchase the systems and that structuring the transaction as a tender offer might have produced a higher sale price for the limited partners.
At the meeting on December 12, 1988, 3,757 of the 5,078 non-Heritage limited partner interests voted on the proposed amendment. Approximately 97% of the interests that voted approved both the amendment and the transaction. Plaintiffs did not vote. The sale was consummated and the limited partners were paid $4,232.47 per interest, a return in excess of 400% in five years on their original investment of $1,000.00 per interest.
*625 Plaintiffs filed this action seeking a declaratory judgment that the General Partner violated the Securities Exchange Act and breached its fiduciary duty in connection with the sale. Count I of the complaint alleges violations of sections 10(b), 14(a), 14(e) and 20(a) of the Securities Exchange Act and Rules 10b-5 and 14a-9 thereunder. Counts II and III assert pendent state law claims for breach of fiduciary duty. In count II, plaintiffs claim that the General Partner breached its fiduciary obligation to obtain "the highest possible price a purchaser would pay" for the limited partners' interests. In Count III, plaintiffs claim that deducting the costs of the transaction from the purchase price constituted a breach of fiduciary duty. Defendants filed a motion to dismiss counts II and III for failure to state a claim and filed a motion to extend the time to respond to count I until the Court rules on the motion to dismiss.
Discussion
A. Plaintiffs' Motion for Class Certification
Plaintiffs have moved for an order under Fed.R.Civ.P. 23 certifying their claim as a class action on behalf of all the limited partners of Cablevision Associates VII as of November 21, 1988. A trial court may certify a class action only if it is satisfied "after a rigorous analysis, that the prerequisites of Rule 23(a) have been met." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). Rule 23(a) establishes four prerequisites: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). In addition, the claim must fall within one of three categories under Rule 23(b). Plaintiffs rely on Rule 23(b)(3), which provides that an action is appropriate for class certification if "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Defendants do not contest that plaintiffs' claim meets the numerousness requirement of Rule 23(a). Defendants argue that plaintiffs have failed to show that their claims are typical of the class and that common questions of law or fact predominate.[4] The typicality requirement "screen[s] out class actions when the legal or factual position of the representatives is markedly different from that of other members, even though common issues of law or fact are raised." Kas v. Financial General Bankshares, Inc., 105 F.R.D. 453 (D.D.C.1984), aff'd, 796 F.2d 508 (D.C.Cir. 1986);[5]see Pendleton v. Schlesinger, 73 F.R.D. 506 (D.D.C.1977), aff'd, Pendleton v. Rumsfeld, 628 F.2d 102 (D.C.Cir.1980). The requirement ensures that "the interests of the class members will be fairly and adequately protected in their absence."[6]General Telephone, 102 S.Ct. at 2370 n. 13. A claim is not typical when "the representative parties are subject to unique defenses" or when "it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff." Kas, 105 F.R.D. at 461 (citing McNichols v. Loeb Rhoades & Co., 97 F.R.D. 331, 334 *626 (N.D.Ill.1982)); see also Irvin E. Schermer Trust v. Sun Equities Corp., 116 F.R.D. 332, 336-37 (D.Minn.1987) (named plaintiffs subject to unique defense of unjustified reliance); Rodriguez v. Dep't of Treasury, 108 F.R.D. 360, 363-64 (D.D.C.1985) (plaintiff subject to unique defense of failure to exhaust administrative remedies in employment case); In re Nat'l Student Mktg. Litig., 445 F.Supp. 157, 162-63 (D.D.C. 1978) (plaintiffs' failure to act promptly raised unique defense to action for rescission of securities transaction), aff'd, 663 F.2d 178 (1980); Zenith Laboratories, Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir.) (named plaintiff subject to unique defenses including res judicata), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976).
Plaintiffs contend that their claims arise from a course of conduct directed at the entire class, and, therefore, that their claims are typical of all the class members' claims. Plaintiffs point out that all the class members received the identical consent statement and that the General Partner paid the same price for all the limited partnership interests. Therefore, plaintiffs reason, their claims are typical with regard to the issues of disclosure and the adequacy of the purchase price. Defendants argue that plaintiffs' securities claims are not typical of the class members' claims for two reasons. First, defendants note that plaintiffs obtained their interest through inheritance rather than buying it through the initial offering, as the vast majority of the purported class members did. Defendants argue that this distinction renders plaintiffs' claims atypical on the issue of the materiality of the alleged misstatements and omissions. Second, plaintiffs did not vote on the amendment to the Agreement or the sale, unlike 70% of the class members. For this reason, plaintiffs are subject to a unique defense on the issue of reliance.
The origin of plaintiffs' limited partnership interest may affect the issue of materiality. To prevail on a claim of securities fraud, a plaintiff must demonstrate a misstatement or omission concerning a material fact. See Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 983, 99 L.Ed.2d 194 (1988) (Rule 10b-5); TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 2132-33, 48 L.Ed.2d 757 (1976) (Rule 14a). The Supreme Court has applied a "reasonable investor" standard to determine what facts are material. Basic, 108 S.Ct. at 983; TSC, 96 S.Ct. at 2132-33. That standard is not completely objective in nature, as it takes into consideration the "total mix" of available information. Id. Plaintiffs did not purchase their interest pursuant to the offering prospectus, therefore, the total mix of information available to them may have differed from that available to the rest of the class. Id. Plaintiffs' unique position affects their ability to demonstrate the scope of disclosure. A material fact may have appeared in the prospectus but not in the consent statement. Because plaintiffs did not receive the prospectus, they cannot attest to the full scope of disclosure that the majority of the class received.[7]
Plaintiffs' claim also does not satisfy the typicality requirement, because plaintiffs face a unique defense on the issue of reliance.[8] The Supreme Court has held that there is a rebuttable presumption of reliance *627 on a material misstatement or omission under Rule 10b-5. Basic, 108 S.Ct. at 990-91.[9] Even if plaintiffs can show a material misstatement in the consent statement, defendants may be able to rebut the resulting presumption of reliance because plaintiffs did not vote on the transaction. Several courts have denied class certification in securities actions when the proposed class representatives were subject to special reliance issues. See, e.g., In re Bexar County Health Facility Dev. Corp. Sec. Litig., 130 F.R.D. 602, 611 (E.D.Pa.1990) (class certification denied because plaintiffs failed to read the challenged offering circular); Kas, 105 F.R.D. at 459 (class certification denied because plaintiffs did not vote on challenged transaction); Kline v. Wolf, 702 F.2d 400, 403 (2d Cir.1983) (class certification denied because evidence sufficient to rebut presumption of reliance as to plaintiffs in case involving "fraud on the market theory"). In Kas, this court denied class certification in light of facts similar to those presented in this case. See Kas, 105 F.R.D. at 461-62 (Judge Johnson). The plaintiffs in Kas did not vote in favor of the challenged merger, unlike a majority of the class members. The Kas court concluded that the plaintiffs' claims were not typical of the class members' claims because those plaintiffs faced a defense on the issue of reliance that would not apply to other members of the proposed class. Id. Plaintiffs' failure to have voted on the proposed amendment and transaction in this case (although they could have) poses a similar bar to class certification.
B. Defendants' Motion To Dismiss Counts II and III
Defendants have moved to dismiss counts II and III of plaintiffs' complaint pursuant to Rule 12(b)(6). Counts II and III set forth pendent claims for breach of fiduciary duty. Pursuant to the Partnership Agreement, Iowa law governs the relationship between the General Partner and the limited partners. See NRM Corp. v. Hercules, Inc., 758 F.2d 676, 681 n. 13 (1985) (contractual choice of law provision is enforceable provided choice bears a substantial relation to the parties and the transaction); Gray v. American Express Co., 743 F.2d 10, 16-17 (1984) (same). Defendants contend that the allegations in counts II and III, which are premised on defendants' failure to obtain "the highest possible price" for the limited partners' interests, do not state a claim for breach of fiduciary duty under Iowa law.
Dismissal for failure to state a claim is appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Baker v. Director, United States Parole Comm., 916 F.2d 725 (D.C.Cir.1990). To decide a motion to dismiss, the court must accept the factual allegations of the complaint as true. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 288, 50 L.Ed.2d 251 (1976). Rule 8 abolishes technical forms of pleading and calls for liberal construction of all pleadings. Thus, defendants' motion presents the question whether the facts alleged in plaintiffs' amended complaint set forth a claim for breach of fiduciary duty under Iowa law.
The Iowa Limited Partnership Act provides that a general partner in a limited partnership "has the rights and powers and is subject to the restrictions and liabilities of a general partner in a partnership without limited partners." Iowa Code § 545.403 (1990). A general partner in a partnership without limited partners is accountable to the partnership as a fiduciary. See id. § 544.21. Thus, a general partner in a limited partnership is accountable to the limited partners as a fiduciary. The Supreme Court of Iowa has stated:
A partnership involves fiduciary relations, and no partner may deceive his *628 copartners for his benefit and their injury by false representations or concealments, and this obligation of partners to exercise the utmost good faith toward one another applies not only during the life of the partnership, but extends to their settlements and transactions from the inception of the partnership to its dissolution, as well as for the purchase or sale of a partner's share in the business.
Gibson v. Deuth, 220 N.W.2d 893, 896 (Iowa 1974); Joseph v. Mangos, 192 Iowa 729, 185 N.W. 464, 465 (1921).
Iowa law recognizes that partners may supplement their statutory and common law rights and obligations in the partnership agreement. Porter v. Barnhouse, 354 N.W.2d 227 (Iowa 1984) (terms of partnership's dissolution agreement superseded general partner's common law rights and obligations); Wolf v. Murrane, 199 N.W.2d 90 (Iowa 1972) (partnership agreement is a contract between the parties); Anderson v. Dunnegan, 217 Iowa 672, 250 N.W. 115, 118 (1933) ("subject to the rights of third parties and the restraints of statutory law and general public policy, partners may create such relations as they see fit."). Furthermore, under Iowa law, the terms of a partnership agreement govern both a dissolution of the partnership, see Porter, 354 N.W.2d at 227, and a sale of the partnership's assets to one of the partners, see Greenberg v. Alter Co., 255 Iowa 899, 124 N.W.2d 438, 440-41 (1963).
Plaintiffs allege that the sale of the limited partnership interests did not comply with the partnership agreement. They contend that the consent of the limited partners was premised on inadequate disclosure and, therefore, was not valid. Iowa courts have not fully addressed the scope of general partner's duty in transactions with the partnership. At a minimum, a general partner in a limited partnership owes the partnership a duty of good faith and full disclosure. See Gibson, 220 N.W.2d at 896; Joseph, 185 N.W. at 465. In the analogous context of a corporate director's duty to corporate shareholders,[10] the Iowa Supreme Court has stated:
Corporate directors and officers may under proper circumstances transact business with the corporation including the purchase or sale of property, but it must be done in the strictest good faith and with full disclosure of the facts to, and consent of, all concerned.... Such transactions are scanned by the courts with skepticism and the closest scrutiny, and may be nullified on slight grounds. It is the policy of the courts to put such fiduciaries beyond the reach of temptation and the enticement of illicit profit.
Cookies Food Products, Inc. v. Lakes Warehouse Distrib., Inc., 430 N.W.2d 447, 452 (Iowa 1988); Des Moines Bank & Trust Co. v. George M. Bechtel & Co., 243 Iowa 1007, 51 N.W.2d 174, 217 (1952). Under this standard, counts II and III of plaintiffs' amended complaint do set forth a cognizable claim for relief. Plaintiffs allege that defendants offered to purchase the limited partners' interests without considering the best interests of the limited partners and without making adequate disclosures regarding the value of the partnership's assets. Accepting these allegations as true, the Court finds that plaintiffs have stated a claim for breach of fiduciary duty under Iowa law.[11]
Plaintiffs' assertion that the General Partner violated a duty to obtain the highest possible price for the limited partners' interests also states a claim under *629 the terms of the Partnership Agreement. The Partnership Agreement contained a provision governing the price of the Partnership's assets in the event of a sale without the approval of the limited partners. If plaintiffs can show that the limited partners' approval was not valid, that provision will govern plaintiffs' claim. Iowa law itself does not impose a duty to obtain the highest possible price for a limited partner's interest.[12] Whether Iowa law imposes a lesser duty to obtain an objectively fair price for a limited partner's interest is not important for this case because the Partnership Agreement supersedes any common law duties. See Porter, 354 N.W.2d at 227. If the limited partners' approval was not valid because the General Partner failed to make adequate disclosures, then the General Partner was obligated to pay the consideration that the Partnership Agreement required. For this reason, the Court denies defendants' motion to dismiss counts II and III of plaintiffs' amended complaint.
C. Defendants' Motion To Extend
Defendants have moved for an extension of time in which to respond to Count I of plaintiffs' complaint up to and including ten days after the Court rules on defendants' motion to dismiss. Plaintiffs have opposed the motion on the grounds that a motion under Rule 12(b) does not toll the time to respond to counts that the motion does not address. Plaintiffs have requested costs including attorneys' fees in relation to opposing defendants' motion. Defendants' request for an extension of time has not halted the progress of discovery or otherwise delayed the case. The Court, therefore, grants defendants' motion for an extension of time to respond to count I and denies plaintiffs' request for costs.
Conclusion
The Court finds that plaintiffs' claims are not typical of the proposed class members' claims. Plaintiffs did not purchase their limited partnership interest pursuant to the prospectus, and plaintiffs did not vote on the amendment and sale of the limited partnership. Plaintiffs' position is not typical as to the scope of disclosure, and plaintiffs are subject to a unique defense on the issue of reliance. The Court, therefore, denies plaintiffs' motion for class certification. The Court also denies defendants' motion to dismiss counts II and III of plaintiffs' amended complaint. Although Iowa law does not require a general partner to obtain the highest possible price for a limited partner's interest, plaintiffs' allegations set forth a claim for relief under Iowa law and the Partnership Agreement. The Court grants defendants' motion for an extension of time in which to respond to count I up to and including 10 days from the date of this Opinion.
NOTES
[1] The prospectus was part of a registration statement that the Partnership filed with the Securities and Exchange Commission (SEC) on June 23, 1983, pursuant to the Securities Act of 1933. Because the limited partnership interests were sold through a public offering, the Partnership was required to file annual and quarterly reports with the SEC.
[2] The Partnership's assets consisted of cable television franchises and systems.
[3] Defendants state in their motion to dismiss that Heritage felt that the sale also offered advantages to the limited partners. The 1986 Tax Reform Act had minimized tax credits for passive activity losses and, therefore, reduced the tax benefits of the limited partnership investments. The sale enabled the limited partners to realize the appreciation of their investments and to pay income taxes on the capital gains at a lower rate than the rate in effect when the investments had generated tax deductions.
[4] Although defendants specifically challenge the typicality of plaintiffs' claims, their arguments also go to the commonality requirement. See General Telephone, 102 S.Ct. at 2370 n. 13. ("The commonality and typicality requirements of Rule 23(a) tend to merge.")
[5] In affirming the district court's decision in Kas, the court of appeals expressly declined to reach the merits of the class certification portion of the case.
[6] The typicality requirement also bears upon Rule 23(a)'s fourth requirement, the adequate representation requirement. That requirement, however, also addresses the competency of the class counsel and possible conflicts of interest within the class. General Telephone, 102 S.Ct. at 2370 n. 13. Defendants do not challenge the competency of plaintiffs' counsel in any way, therefore, the Court does not address the adequate representation requirement.
[7] Plaintiffs argue that their claim challenges the consent statement and that earlier disclosures in the prospectus are not relevant. This simply underscores the fact that plaintiffs' position is not typical of the class. Plaintiffs did not have the prospectus, therefore, they cannot be charged with knowledge of its contents. However, the majority of the class members cannot claim nondisclosure of facts that the prospectus contained. Likewise, those that read the prospectus cannot claim reliance on any misstatements in the consent statement.
[8] In their reply, plaintiffs protest that the Court should not examine the merits of their claim at the class certification stage. In considering the elements of plaintiffs' claims and the likely defenses plaintiffs face, the Court is not prejudging the merits. The Court properly may compare plaintiffs' factual position with that of the other class members in the context of the law to determine whether plaintiffs satisfy the typicality requirement. Cf. Hoffman Electric, Inc. v. Emerson Electric Co., 754 F.Supp. 1070 (E.D.Pa. 1991) (district court may not consider nonreliance at the class certification stage because it is an affirmative defense bearing on the merits).
[9] The Supreme Court recently granted certiorari on the issue whether reliance is an element of a section 14(a) claim. Sandberg v. Virginia Bankshares, Inc., 891 F.2d 1112, 1119 (4th Cir.1989), cert. granted in part, ___ U.S. ___, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990); see Cowin v. Bresler, 741 F.2d 410, 426 (D.C.Cir.1984) (reliance is not an element of a claim under section 14(a)).
[10] The Court refers to the scope of a corporate director's fiduciary duty because the division of authority in a limited partnership is very similar to that in a corporation. A general partner in a limited partnership has the authority to manage the partnership's day-to-day business just as a corporate board of directors manages a corporation's day-to-day business. On the other hand, limited partners, like corporate shareholders, do not manage the limited partnership's everyday affairs. The limited partner's reliance on the general partner is comparable in scope to the shareholder's reliance on the directors. The general partner's fiduciary duty logically should be similar to a corporate director's.
[11] The Court makes no determination at this stage whether the General Partner's substantial disclosures in fact contained any material misstatements or omissions.
[12] Such a duty would be impossible to administer. Courts could not set standards to determine what the highest possible price for a partnership interest would be. As a consequence, realistically the limited partnership could never be sold. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455326/ | 260 P.3d 201 (2011)
245 Or. App. 300
STATE
v.
COZART.
A144266
Court of Appeals of Oregon.
August 31, 2011.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744642/ | 998 So. 2d 611 (2009)
LINN
v.
PANZARINO.
No. 2D08-3464.
District Court of Appeal of Florida, Second District.
January 9, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014932/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1056
In Re: E. LOWELL MASON,
Petitioner.
On Petition for Writ of Prohibition
(BK-02-334-58; CA-03-271-3; CA-03-234-3; AP-03-3026)
No. 04-1074
In Re: E. LOWELL MASON,
Petitioner.
On Petition for Writ of Mandamus
(CA-03-788; CA-03-1012)
Submitted: June 18, 2004 Decided: December 8, 2004
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
E. Lowell Mason, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
E. Lowell Mason filed a petition for writ of prohibition,
No. 04-1056, in which he asserts that the bankruptcy court for the
Western District of North Carolina improperly transferred to that
court a bankruptcy proceeding that was filed in the bankruptcy
court for the Middle District of North Carolina. He requests that
this court enjoin the bankruptcy court for the Western District of
North Carolina from acting in the proceeding transferred from the
Middle District.
A writ of prohibition will not issue unless it “clearly
appears that the inferior court is about to exceed its
jurisdiction.” Smith v. Whitney, 116 U.S. 167, 176 (1886).
Additionally, a writ of prohibition is a drastic remedy which
should be granted only where the petitioner’s right to the
requested relief is clear and indisputable. In re Vargas, 723 F.2d
1461, 1468 (10th Cir. 1983); In re Missouri, 664 F.2d 178, 180 (8th
Cir. 1981). Further, a writ of prohibition should be granted only
where the petitioner has no other adequate means of relief. In re
Banker’s Trust Co., 775 F.2d 545, 547 (3d Cir. 1985).
Here, we find that Mason has not established that he has
a clear right to the relief he seeks. Moreover, Mason has other
means by which to challenge the bankruptcy court’s order. Because
a writ of prohibition may not be used as a substitute for an
- 3 -
appeal, Missouri, 664 F.2d at 180, we deny Mason’s petition for
writ of prohibition.
In No. 04-1074, Mason seeks a writ of mandamus. In this
petition, Mason complains of the transfer of the bankruptcy
proceeding from the Middle District to the Western District of
North Carolina; he also asserts that he did not consent to trial
by a magistrate judge in the action he filed in the district court,
and that the district court did not act on his motion for entry of
default against Susan Sowell--a defendant in that action.
Mason has failed to show that he has a “clear right to
the relief sought,” as required for the granting of mandamus
relief. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980). To the extent that Mason asserts that the district court
delayed in acting on his motion for entry of default, we find no
unreasonable delay. Additionally, any challenge Mason has to the
transfer of the bankruptcy proceeding and to the order granting an
extension of time for Sowell to file an answer to his complaint may
be asserted in an appeal, and therefore mandamus relief is not
appropriate. See In re United Steelworkers of Am., 595 F.2d 958,
960 (4th Cir. 1979).
Mason has moved in this court for entry of default
against Susan Sowell in his district court case, and to strike a
document filed by Sowell in an appeal Mason previously filed in
this court. We deny these motions. Additionally, we deny Mason’s
- 4 -
directed motions in which he seeks from Sowell and from Anna Mills
Wagoner a response to his inquiries.
In conclusion, while we grant Mason’s motions for leave
to proceed in forma pauperis in both of these cases,* we deny
Mason’s petition for writ of prohibition and his petition for writ
of mandamus. We further deny his motions to strike a document
filed by Sowell in appeal No. 03-1909, motion for entry of default,
and his directed motions. 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.
PETITIONS DENIED
*
Mason’s motions for an extension of time to either pay the
filing fee or file an application to proceed in forma pauperis are
denied as moot.
- 5 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1014936/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6988
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALPHELIOUS ANTOINE ROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-99-312; CA-03-356)
Submitted: October 29, 2004 Decided: December 7, 2004
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Alphelious Antoine Rooks, Appellant Pro Se. David John Novak,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In this case, the district court denied relief on
Alphelious Antoine Rooks’ 28 U.S.C. § 2255 (2000) motion and denied
Rooks’ motion to alter or amend the judgment. After noting his
appeal, Rooks requested that the district court issue a certificate
of appealability on five issues. The district court granted a
certificate of appealability on two issues: (1) whether counsel was
ineffective for failure to investigate Rooks’ criminal history and
for stipulating to a factually erroneous history; and (2) whether
Rooks’ Sixth Amendment rights were violated because the judge, not
the jury, made determinations relating to drug quantity and first
degree murder. The court denied a certificate of appealability on
the following issues: (3) whether counsel was ineffective for not
calling Rooks to the stand; (4) whether counsel was ineffective for
not investigating Kermic Williams as a potential defense witness;
and (5) whether counsel’s cumulative errors constituted ineffective
assistance of counsel.
Rooks seeks to appeal the district court’s order denying
relief on claims (1) and (2) and denying his motion to alter or
amend. He also moves to expand the certificate of appealability to
include claims (3) and (4). With regard to the denial of relief on
claims (1) and (2), we have reviewed the record and find no
reversible error. We therefore affirm on the reasoning of the
- 2 -
district court. Nos. CR-99-312; CA-03-356 (E.D. Va. May 7, 2004
and June 22, 2004).
With regard to the district court’s denial of relief on
claims (3) and (4), an appeal may not be taken from the final order
in a § 2255 proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue for claims addressed by
a district court 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 both 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 Rooks has not made the
requisite showing. Accordingly, we deny the motion to expand the
certificate of appealability, deny a certificate of appealability,
and dismiss the appeal. We deny as moot the motion to place the
case in abeyance pending the district court’s ruling on the motion
for a certificate of appealability. 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 IN PART;
DISMISSED IN PART | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645190/ | 40 So.3d 789 (2010)
Lynnia COHEN, Appellant,
v.
Edward COHEN, Appellee.
No. 3D09-776.
District Court of Appeal of Florida, Third District.
June 30, 2010.
Rehearing Denied August 16, 2010.
Amy D. Shield, Boca Raton, for appellant.
Leinoff & Lemos and Andrew Leinoff, South Miami; Greene Smith & Associates, and Cynthia L. Greene, Miami, for appellee.
Before GERSTEN, SHEPHERD and SALTER, JJ.
PER CURIAM.
Affirmed. See Weisfeld-Ladd v. Estate of Ladd, 920 So.2d 1148 (Fla. 3d DCA 2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918918/ | 218 A.2d 366 (1966)
BATES MANUFACTURING COMPANY
v.
FRANKLIN COMPANY et al.
Supreme Judicial Court of Maine.
March 25, 1966.
Pierce, Atwood, Scribner, Allen & McKusick, by Gerald M. Amero, and Vincent L. McKusick, Portland, for plaintiff.
Linnell, Choate & Webber, by G. Curtis Webber, Auburn, for defendants.
Before WILLIAMSON, C. J., and MARDEN, RUDMAN and DUFRESNE, JJ.
WILLIAMSON, Chief Justice.
The plaintiff Bates Manufacturing Company (hereinafter called Bates) sought and obtained a judgment forever barring certain restrictions on the Triangle Lot, so-called, as a cloud on title. Of the three defendants only Franklin Company (hereinafter called Franklin) appeals.
The facts are not in dispute. By indenture in 1862 Franklin conveyed to Androscoggin Mills, predecessor in title to Bates, the Triangle Lot, so-called, being part of a larger lot, in Lewiston, subject to the following restriction:
"* * * that so much of the said lot as is southerly of said street last mentioned (now Locust Street) shall be kept open as a Park and no buildings be erected thereon without the consent of the party of the first part (Franklin * * *) and said party of the first part also reserving the right to construct a canal or feeder through such Park to any mills or buildings hereafter to be erected on their lands, lying easterly of Lisbon Street provided and on condition that such canal or feeder *367 be constructed so far beneath the surface of the land and so effectually and properly covered as to admit of cultivation of the soil over and above and along such canal or feeder."
The Triangle Lot is bounded on the north by Locust Street, on the east by Lisbon Street running at right angles to Locust Street, on the west by Canal Street, and is approximately 127 feet by 223 feet by 256 feet. The remainder of the lot lies northerly of the Triangle Lot and is bounded on the south by Locust Street and on the east by Lisbon Street.
In 1862 when the conveyance was made, Franklin owned open and undeveloped land bounded on the west by Lisbon Street, across from the Triangle Lot, and extending easterly to Bates Street. Franklin over the years and before December 1, 1950 conveyed all of this land with the exception of one lot on Bates Street with the westerly lot line about 600 feet from Lisbon Street. There were no reservations upon the Triangle Lot in the deeds given by Franklin over the years.
Franklin in 1862 was engaged in the development and sale of mill properties and in the construction of mills and canals. On the land immediately north of Locust Street "in 1862 were certain boarding houses intended to be occupied by 500 to 600 boarders and which houses were subsequently so occupied. Presently this block is occupied by commercial establishments including a drive-in restaurant and a service station." The area east of Lisbon Street "today * * * is heavily commercialized and occupied by such establishments as a branch bank, supermarket and parking lot, theater, trucking company and variety store." [The quotations are from admitted allegations of the complaint].
On December 1, 1950 Franklin and Bates entered into an agreement under which the Triangle Lot was leased in part for use as a gasoline station for a term ending November 30, 1953. A new agreement dated December 1, 1953 reads in part:
"1. Franklin agrees to join as a lessor in the proposed leases to Socony-Vacuum Oil Company, Incorporated and Androscoggin Diner Co., respectively, and to waive its rights under the restriction contained in the deed above described (the 1862 deed) and to consent that buildings may be erected and/or maintained on the restricted premises as provided in said proposed leases, provided that such waiver and consent shall be effective only so long as said leases or either of them shall remain in full force and effect, including the period of any extension or renewal of the term of either lease if the same shall be extended or renewed by mutual consent of the parties hereto; and Bates agrees that, upon and after termination of said leases for any reason whatsoever, Franklin shall again be entitled to require that the portion of the lot described in the aforesaid deed which is southerly of said Locust Street be kept open as a park and that no buildings shall be erected thereon without consent of Franklin, and Franklin shall have the right to construct a canal or feeder through such park, all as set forth in the aforesaid restriction, as if this Agreement and said leases had never been executed."
* * * * * *
"4. Bates agrees that it will not act without the concurrence of Franklin in negotiating with any person relative to the renewal or the extension of the term of either of the proposed leases or relative to any other matter involving either lease or the occupancy of said premises.
"5. Franklin agrees that, if at the conclusion of the term of either of said proposed leases, including any extension thereof, Franklin requires that the demised premises be kept open as a park and that the filling station erected thereon be removed therefrom, it will pay *368 one-half (½) of the cost of such removal."
The parties are in agreement that "Since 1862, technological advances, such as the advent of electricity, have made the construction and use of canals as a means of transmitting motive power uneconomical and extremely impractical." The easement for the construction of a canal through the Triangle Lot no longer serves any useful purpose and has come to an end. It is sufficient to say that the easement has been abandoned by Franklin.
The controversy centers about the park. The Justice below gave sentence of death on two grounds: First, that the park restriction was incidental to the easement for a canal, and hence ended with it; and second, that if not incidental, then the application of the change of neighborhood doctrine destroyed the restriction. Further, the Justice considered the 1953 agreement conferred no more rights on Franklin than it had under the original restriction, and did not preclude or estop Bates from gaining the desired equitable relief.
In our view the restriction with reference to the use of the Triangle Lot as a park is not incidental to the reservation with reference to the canal. The 1862 deed carefully provided for construction of a canal without interference with the use of the Triangle Lot as a park. The "park" and "canal" provisions are separate and distinct. The use for the one purpose does not prevent the use for the other. The Triangle Lot as a park plainly held value in 1862, in no way related to its use as a right of way for a canal.
As a second ground of decision the Justice held the park restriction, assuming it was not incidental to the canal provision, ended by reason of changes in the neighborhood. Our problem arises not in the law but in its application to the facts.
The governing principle of law was well stated by the Rhode Island Court in Hill v. Ogrodnik, 83 R.I. 138, 113 A.2d 734, 737, 114 A.2d 398, as follows:
"Although expressed by different courts in varying language the rule supported by the great weight of authority now is substantially to the same effect, namely, that equity will grant affirmative relief against restrictive covenants by way of removal as a cloud on title only when it clearly appears that the change in the character of the neighborhood in the immediate vicinity of the restricted land has been so radical and permanent as to render perpetuation of the restriction plainly unjust because its original purpose can no longer be accomplished."
Caron v. Margolin, 128 Me. 339, 147 A. 419; McArthur v. Hood Rubber Co., 221 Mass. 372, 109 N.E. 162; 2 American Law of Property § 9.22; Restatement, Property § 564.
We find no evidence in the record of a change in the character of the neighborhood sufficient to warrant the destruction by the court of the park restriction.
In 1862 the Franklin property east of Lisbon Street to which the restrictions in the deed were appurtenant was open land. The anticipated use of the area for mills did not materialize over the years and by 1950 the use was commercial.
There is nothing in the record to suggest that the Triangle Lot was used for any purpose other than as a park or that buildings were built thereon during the 88 years from 1862 to 1950. The change from open land to a commercial area thus brought no change in the use of the Triangle Lot.
Franklin, as we have seen, now owns only one lot in the area owned in 1862 east of Lisbon Street. The money value to Franklin of the park restriction may have been small in 1862 for the entire tract and in 1965 for the lot owned. This, however, is not a sufficient reason to destroy the restriction on the ground of change in neighborhood.
*369 The Triangle Lot is indeed small in size as we ordinarily measure parks. It was, however, considered useful for park purposes in 1862. Who can say that it has not retained value for such purposes today in a commercial area? There has been no change in space requirements for a small city park analogous to the change from water power through canals to electric power for the mills.
The 1953 agreement between Bates and Franklin strengthens the position of the latter. No change in the character of the neighborhood has taken place since 1950. The agreement was thus made under present conditions of use of the area.
Under the agreement at the expiration of certain proposed leases Franklin shall again be entitled to require that the Triangle Lot "be kept open as a park and that no buildings shall be erected thereon without its [Franklin] consent." If this provision is said to be no more than a reference to a dead restriction by reason of the inclusion of the canal reservation, we turn to paragraph 5, supra. The parties there make plain beyond doubt that the park restriction has force and life by agreeing to share the cost of removal of any building under certain conditions.
The parties thus in 1953 recognized the existence of the park restriction and modified its terms. We do not breathe life into the 1862 park restriction through estoppel based on the 1953 agreement. We do no more than say that a restriction in existence in 1953 remains alive today as thus modified. Under the circumstances therefore Bates is not entitled to a judgment and injunction which would effectively destroy the 1862 park restriction as so modified as a cloud on title. There is no objection to removal of the canal reservation.
We are not here concerned with, and we express no opinion upon, the rights, if any, of the present owners, other than the defendants, of the land owned by Franklin in 1862 to which the Triangle Lot restrictions were applicable.
The entry will be
Appeal sustained.
WEBBER and TAPLEY, JJ., did not sit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3011021/ | Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
7-8-1999
USA v. McGlory
Precedential or Non-Precedential:
Docket 97-3057
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
Recommended Citation
"USA v. McGlory" (1999). 1999 Decisions. Paper 195.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/195
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed July 8, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 97-3057
UNITED STATES OF AMERICA
v.
REGINALD MCGLORY,
Appellant
(D.C. Crim. No. 89-cr-00144)
Before: BECKER, Chief Judge, SLOVITER, MANSMANN
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
McKEE, and RENDELL, Circuit Judges.
O R D E R FOR REHEARING EN BANC
A majority of the active judges having voted for rehearing
en banc in the above appeal, it is
ORDERED that the Clerk of this Court list the above for
rehearing en banc at the convenience of the Court.
BY THE COURT:
/s/Edward R. Becker
CHIEF JUDGE
DATED: July 8, 1999
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3755432/ | {¶ 44} I agree that we should grant the writ and order the records unsealed but for a different reason than the principle opinion. I cannot agree that the trial court lacked personal jurisdiction over the applicant for an expungement because procedural errors, including failure to serve the prosecutor, occurred. Rather, it appears to me that the records "never lost their public status and are hereby open to the public(.)" because the trial court failed to comply with the statutory requirements set forth in R.C. 2953.32 and/or R.C. 2953.52. See, TheState ex rel. Beacon Journal Publishing Co. v. Radel, Clerk et al.
(1993), 82 Ohio App.3d 193. Thus, I concur in judgment only. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2319142/ | 29 A.3d 840 (2011)
MOUSOIS
v.
MARSHALL.
No. 1584 EDA 2010.
Superior Court of Pennsylvania.
April 20, 2011.
Affirmed, Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1015024/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1162
BRENDA HENSLEY, an individual,
Plaintiff- Appellee,
versus
INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New York Corporation; METROPOLITAN LIFE
INSURANCE COMPANY, a Delaware Corporation,
Defendants - Appellants,
and
DOES 1 THROUGH 10, inclusive,
Defendant.
No. 04-1728
BRENDA HENSLEY, an individual,
Plaintiff - Appellee,
versus
INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New York Corporation; METROPOLITAN LIFE
INSURANCE COMPANY, a Delaware Corporation,
Defendants - Appellants,
and
DOES 1 THROUGH 10, inclusive,
Defendant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CA-03-233-3; CA-03-223-3)
Argued: September 29, 2004 Decided: December 13, 2004
Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Reversed by unpublished opinion. Judge Luttig wrote the opinion,
in which Judge Wilkinson and Judge Hudson joined.
ARGUED: Beth Ann Oliak, METROPOLITAN LIFE INSURANCE COMPANY, New
York, New York, for Appellants. Mark F. Underwood, Huntington,
West Virginia, for Appellee. ON BRIEF: Scott A. Damron, DAMRON &
TAYLOR, Huntington, West Virginia; C. J. Schmidt, WOOD & LAMPING,
Cincinnati, Ohio, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
LUTTIG, Circuit Judge:
Defendants-appellants International Business Machines Corp.
(“IBM”) and Metropolitan Life Insurance Co. (“MetLife”) appeal from
an order of the United States District Court for the Southern
District of West Virginia granting summary judgment to plaintiff-
appellee Brenda Hensley. The district court held that MetLife
abused its discretion in terminating Hensley’s long-term disability
benefits under an ERISA-governed employee benefits plan. Because
we conclude that MetLife did not abuse its discretion, we reverse
the judgment of the district court.
I
Appellee Hensley was employed by IBM in a sedentary capacity
as an “accounts specialist” prior to August 1999. During that
time, she participated in a group long-term disability plan (“the
Plan”) administered by MetLife on behalf of IBM. The Plan is an
employee welfare benefit plan within the meaning of the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.
According to the terms of the Plan, a “totally disabled” employee
is entitled to long-term disability (“LTD”) benefits. J.A. 191.
“Totally disabled” is defined as follows:
[T]otally disabled means that during the first 12 months
after you complete the waiting period, you cannot perform
the important duties of your regular occupation with IBM
because of a sickness or injury. After expiration of
that 12 month period, totally disabled means that,
because of a sickness or injury, you cannot perform the
3
important duties of your occupation or of any other
gainful occupation for which you are reasonably fit by
your education, training or experience.
J.A. 193. The Plan also provides that the Plan’s administrator
“shall have discretionary authority to interpret the terms of the
Plan and to determine eligibility for and entitlement to Plan
benefits in accordance with the terms of the Plan.” J.A. 213.
On August 9, 1999, Hensley applied for LTD benefits under the
Plan, submitting a statement of her attending physician diagnosing
her with osteoarthritis and rotator cuff syndrome. J.A. 726.
MetLife initially granted her application for LTD benefits on
November 9, 1999, but sought further information regarding her
disability in January and March of 2000. A second attending
physician submitted a letter to MetLife in April 2000 in response
to these requests. He listed Hensley’s diagnoses as morbid
obesity, osteoarthritis, rotator cuff tendinitis, wrist tendon
inflammation, carpal tunnel syndrome, and lower back pain, but he
did not include objective tests or x-ray reports to substantiate
these diagnoses. J.A. 463. An independent physician consultant
reviewed Hensley’s medical records on behalf of MetLife in August
2000 and concluded that the records showed no objective impairment
that would prevent Hensley from returning to work. J.A. 425. On
the consultant’s recommendation, a functional capacity exam (“FCE”)
was performed on Hensley in March 2001 to assess her physical
capabilities, but the physical therapist reported that Hensley did
4
not put forth a consistent effort during the tests and that Hensley
exaggerated her pain complaints. J.A. 400-02. After the
independent consultant concluded in a second review that Hensley
had not produced medical evidence of incapacity for work, J.A. 390-
91, MetLife terminated her benefits in November 2001.
In support of two subsequent appeals to MetLife, Hensley
submitted another diagnosis letter from a third attending physician
and the report from a second FCE. J.A. 115, 167. But the third
doctor did not provide additional objective evidence to support
Hensley’s diagnoses, see J.A. 115-16, and the physical therapist
again concluded that Hensley exaggerated her symptoms and engaged
in self-limiting behavior, J.A. 168. MetLife denied Hensley’s
appeals.
Hensley sued IBM and MetLife for restoration of her benefits
under the Plan in the district court in March 2003. J.A. 6. On
cross-motions for summary judgment,1 the district court granted
summary judgment for Hensley, holding that MetLife abused its
discretion as administrator of the Plan in terminating Hensley’s
LTD benefits. J.A. 31. The district court also awarded Hensley
costs and fees. Order Granting Plaintiff’s Motion for Attorney’s
Fees, Costs and Prejudgment and Postjudgment Interest at 1. IBM
and MetLife appeal from both orders.
1
The parties did not dispute any material fact in the record.
J.A. 22.
5
II
We review the district court’s grant of summary judgment de
novo, applying the same standards employed by the district court.
Gallagher v. Reliance Std. Life Ins. Co., 305 F.3d 264, 268 (4th
Cir. 2002). Where, as here, an ERISA plan gives the administrator
discretionary authority to interpret the terms of the plan, the
district court reviews the administrator’s decisions for abuse of
discretion. Booth v. Wal-Mart Stores, Inc., 201 F.3d 335, 341 (4th
Cir. 2000). Under the abuse of discretion standard, the court may
not overturn the administrator’s denial of benefits if the denial
“is the result of a deliberate, principled reasoning process and if
it is supported by substantial evidence.” Elliott v. Sara Lee
Corp., 190 F.3d 601, 605 (4th Cir. 1999) (quoting Brogan v.
Holland, 105 F.3d 158, 161 (4th Cir. 1997)). Substantial evidence
is more than a scintilla, but less than a preponderance. Newport
News Shipbuilding and Dry Dock Co. v. Cherry, 326 F.3d 449, 452
(4th Cir. 2003).
Because MetLife both administers and funds the plan, however,
we adjust the standard of review by decreasing our deference to
MetLife in proportion to the degree of MetLife’s conflict of
interest. In such circumstances, we must determine whether the
denial of benefits would constitute an abuse of discretion by a
disinterested fiduciary. See, e.g., Bailey v. Blue Cross & Blue
Shield of Virginia, 67 F.3d 53, 56 (4th Cir. 1995) (“[W]e will
6
review the merits of the [funding fiduciary’s] interpretation to
determine whether it is consistent with an exercise of discretion
by a fiduciary acting free of the interests that conflict with
those of the beneficiaries.”). Even on this adjusted scale of
deference, we conclude that MetLife did not abuse its discretion
because its decision to terminate Hensley’s benefits was the result
of a deliberate, principled reasoning process and supported by
substantial evidence.
A
It is apparent from the record that MetLife’s decision to
terminate benefits was the result of a “deliberate, principled
reasoning process.” The decision followed MetLife’s multiple
requests for information from Hensley’s physicians, repeated
reviews of her medical records by the independent consultant, and
two appeals of the initial termination during which Hensley was
permitted to provide supplemental medical evidence.
MetLife’s decision to terminate Hensley’s benefits might
appear inconsistent with its prior determination in November 1999
that she was “totally disabled” under a functionally identical
standard.2 But the fact that MetLife initially awarded benefits to
2
The Plan’s “regular occupation” definition of total
disability applied to the April 1999 decision, while the “any
occupation” definition applied to the November 2001 termination.
But because this dispute focuses on Hensley’s ability to perform
any sort of sedentary labor at all, there is no practical
7
Hensley does not mean that its subsequent termination of those
benefits was the result of unprincipled reasoning. The termination
of benefits was based on further investigation and review,3 during
which Hensley’s physicians failed to provide objective support for
their diagnoses and Hensley failed to put forth credible efforts in
two functional capacity exams. And, as the district court
correctly noted, the Fourth Circuit has held that no vested right
to benefits accrues under an employee welfare benefits plan, see
Gable v. Sweetheart Cup Co., 35 F.3d 851, 855 (4th Cir. 1994), so
that “the decision to grant benefits initially cannot create an
obligation by which a plan fiduciary is estopped from later
terminating benefits.” J.A. 26.
B
We also conclude that MetLife’s decision was supported by
substantial evidence. As MetLife’s consultant twice concluded, the
record is largely devoid of objective medical evidence of total
difference between the two standards for the purposes of this
appeal.
3
This factor, among others, distinguishes the case upon which
Hensley principally relies, Norris v. Citibank Disability Plan, 308
F.3d 880 (8th Cir. 2002). The Norris court emphasized that the
plan administrator’s denial of benefits came “a few months later,
and on the basis of no new medical evidence,” after a prior
determination that the claimant was totally disabled. Id. at 885
(emphasis added).
8
disability, such as x-rays, test results or MRI reports.4 J.A.
391, 425. Instead of objective evidence, Hensley relies
principally on the diagnosis letters of her three treating
physicians, Dr. Wazulak, Dr. Harvey, and Dr. Martin. But none of
these doctors provided objective evidence of disability to support
his conclusions. Dr. Wazulak’s report of August 1999 listed
nothing under “objective findings,” but listed only subjective pain
symptoms to support his diagnoses. J.A. 726. Likewise, Dr.
Harvey’s letter of April 2000 reported several pain-related
diagnoses for Hensley, but admitted that Dr. Harvey did not have
actual x-ray reports or reports from specialists substantiating
these diagnoses. J.A. 463. And Dr. Martin’s letter of December
2001 merely recited the same diagnoses as Dr. Harvey’s, without
providing additional objective medical evidence. J.A. 115-16.
In the absence of objective evidence of Hensley’s disability,
it was reasonable for MetLife to conclude that the diagnoses of her
treating physicians rested primarily or exclusively upon Hensley’s
subjective pain complaints. But the results from her subsequent
FCEs substantially undercut the credibility of those pain
complaints. Both physical therapists concluded that Hensley
4
One exception is that a spine MRI performed on Hensley in
April 2000 confirmed that she had degenerative disc disease. That
MRI, however, found no disc herniation. J.A. 453. A doctor
examining Hensley and the MRI report at that time described her as
“a middle-aged female in no acute distress” and noted that she had
refused to undergo nerve conduction studies that might confirm the
diagnosis of her carpal tunnel syndrome. J.A. 455.
9
engaged in self-limiting behavior and symptom magnification during
the FCEs. J.A. 167, 402. The report from the second FCE, which
was performed upon the referral of her treating physician,
emphasized Hensley’s self-limitation:
The results of this FCE do not represent a valid measure
of Brenda’s maximum functional capacities as she
significantly limited her performance due to pain and, at
the same time, demonstrated maximum signs of magnified
illness behavior. . . . Her requests to terminate testing
due to pain were made in conjunction with the lack of
objective pain behavior and a pleasant, even jovial
demeanor while rating her pain at a ‘9 out of 10.’
J.A. 168. Despite his inability to assess her full physical
capacities, the therapist nevertheless concluded that Hensley was
capable of “SEDENTARY” work under Department of Labor Standards.
J.A. 167. Given that the Plan placed upon Hensley the burden of
producing evidence of total disability, J.A. 193, and given her
non-cooperation in both FCEs, it was reasonable for MetLife to
conclude that Hensley was capable of sedentary occupation.
The district court reasoned that it was unreasonable for
MetLife to credit the opinion of an independent consultant who had
never treated Hensley, over the contrary conclusions of her
treating physicians. J.A. 27 (“To rely solely on the opinion of an
independent consultant physician who examined only medical records
-- as opposed to examining the claimant -- in the face of the
unanimity of the physicians who had examined the claimant . . . is
arbitrary and capricious.”). But the Supreme Court has explicitly
held that ERISA plan administrators are not required to accord any
10
special deference to the opinions of treating physicians over those
of non-treating consultants. Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 834 (2003) (“[C]ourts have no warrant to
require administrators automatically to accord special weight to
the opinions of a claimant’s physician . . . .”). As noted above,
MetLife had reason to believe that the treating physicians’
diagnoses rested on subjective pain complaints whose credibility
was undermined by the FCE tests, which were designed to assess
actual functional capacities and to detect pain magnification. See
J.A. 401 (evaluating Hensley’s pain behavior during testing). In
light of this evidence, it was reasonable for MetLife to discount
the conclusions of Hensley’s treating physicians.
The district court also emphasized that subjective pain
complaints can often constitute a medically sound basis for
diagnosis. J.A. 28 (“Merely because we cannot see pain or fatigue
on an x-ray, or measure it in a laboratory, does not mean that it
is not real.” (quoting Palmer v. Univ. Med. Group, 994 F. Supp.
1221, 1233 (D. Or. 1998))). But the Fourth Circuit has held that
denials of benefits are permissible where the claimant provides
only subjective pain complaints and not objective evidence. See,
e.g., Lown v. Continental Casualty Co., 238 F.3d 543, 546 (4th Cir.
2001) (upholding, on de novo review, the denial of benefits against
the opinions of three treating physicians where the insurer
“determined that [the claimant’s] documentation was inadequate to
11
prove a total disability because of the lack of test results or
other objective evidence to support the disability”); Ellis v.
Metropolitan Life Ins. Co., 126 F.3d 228, 231 (4th Cir. 1997)
(approving MetLife’s reliance on a board of non-treating
consultants over the opinions of treating doctors who credited the
claimant’s pain complaints but could not pinpoint their
“etiology”). This preference for objective verification is all the
more reasonable in light of the evidence of symptom magnification
present in this case.
In sum, MetLife’s decision to terminate Hensley’s LTD benefits
was the result of a deliberate, principled reasoning process. And
the record clearly contains substantial evidence to support
MetLife’s conclusion. MetLife’s decision thus did not constitute
an abuse of discretion, even under the adjusted standard of review.
III
MetLife and IBM also appeal from the district court’s award of
pre- and postjudgment interest, costs, and attorney’s fees. We
review the district court’s award for abuse of discretion.
Metropolitan Life Ins. Co. v. Petitt, 164 F.3d 857, 865 (4th Cir.
1998). In awarding attorney’s fees, the district court applied the
five factors of Quesinberry v. Life Ins. Co. of North Am., 987 F.2d
12
1017, 1029 (4th Cir. 1993) (en banc).5 Here the district court
relied primarily on (1) the degree of opposing parties’ culpability
or bad faith, and (5) the relative merits of the parties’
positions. Order Granting Plaintiff’s Motion for Attorney’s Fees,
Costs and Prejudgment and Postjudgment Interest at 4. In light of
our conclusion that MetLife did not abuse its discretion, neither
of these factors favors Hensley. Therefore the district court’s
order granting fees, costs, and interest is also reversed.
CONCLUSION
The judgment of the district court is reversed and the case is
remanded with instructions to enter judgment for appellants.
REVERSED
5
The five factors are: (1) degree of the opposing parties’
culpability or bad faith, (2) the ability of opposing parties to
pay fees, (3) whether the fee award would deter others similarly
situated, (4) whether the parties requesting fees sought to benefit
other claimants or to resolve a significant ERISA-related legal
question, and (5) the relative merits of the parties’ positions.
Quesinberry, 987 F.2d at 1029.
13 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547072/ | 13 F.2d 781 (1926)
ATLANTIC REFINING CO.
v.
HODGMAN et al.
SUPERIOR OIL CORPORATION
v.
SAME.
Nos. 3443, 3444.
Circuit Court of Appeals, Third Circuit.
July 9, 1926.
No. 3443:
Yale L. Schekter, of Philadelphia, Pa., Robert H. Richards, of Wilmington, Del., Ira Jewell Williams and Francis Shunk Brown, both of Philadelphia, Pa., and Charles Evans Hughes, of New York City (Ira Jewwell Williams, Jr., Carlos Berguido, Jr., and Brown & Williams, all of Philadephia, Pa., of counsel), for appellant Atlantic Refining Co.
Lawrence Berenson, of New York City, Andrew C. Gray, of Wilmington, Del., Arthur Berenson, of Boston, Mass., and Herbert H. Ward, of Wilmington, Del. (Ward, Gray & Ward and E. Ennalls Berl, all of Wilmington, Del., of counsel), for appellees Hodgman and others.
No. 3444:
Willard Saulsbury and Charles F. Curley, both of Wilmington, Del. (Saulsbury, Curley & Davis, of Wilmington, Del., of counsel), for appellant.
Herbert H. Ward, Andrew C. Gray, and E. Ennalls Berl, all of Wilmington, Del., for appellees.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
This bill was brought by individual stockholders of the Superior Oil Corporation, hereafter called Superior, against the Atlantic Refining Company, hereafter called Atlantic, to enforce rights of the former company against the latter. The majority stockholders of Superior and the officers of Superior having declined to seek such relief, the bill was brought by the plaintiff stockholders against Atlantic, and Superior also was made a defendant.
*782 Aligning the parties according to interest, the real plaintiff before us and the party whose rights are to be proven and established is the Superior Oil Corporation and the real right of action here involved is the right, if any, of that company against the Atlantic Company. Viewing the action, then, as that of Superior against Atlantic, what are the rights of Superior against Atlantic, and what are the responsibilities of Atlantic to Superior? If we correctly determine the rights and obligations of these two corporations to each other, we have the foundation on which this case must properly be adjudged.
Superior was a corporation of the state of Delaware, and by virtue of its corporate powers was engaged in the production and sale of petroleum. Atlantic was a corporation of the state of Pennsylvania, and, in addition to producing oil, was engaged in manufacturing illuminating and lubricating oils and other products of petroleum. Contemplating an expansion of its business by buying additional oil properties, Superior, on March 4, 1920, secured from Atlantic a loan of $2,750,000. This was effected by a contract of that date between Superior, Atlantic, and the former's president, Robert M. Catts, designated trustee, "for the sole purpose of carrying out the terms and conditions of this contract duly authorized by the board of directors" of Superior.
Confining ourselves to such provisions of this lengthy document as are here pertinent, we note that Superior was about to acquire from Robert M. Catts, trustee, certain described oil properties in the state of Kentucky, "which properties are all to be acquired from Robert M. Catts, trustee, subject to an indebtedness of $2,750,000 to Company B, which sum represents a loan made by Company B to said trustee to enable him to acquire said properties, which loan, with interest at the rate of 6 per cent. per annum, is to be repaid as hereinafter more specifically set forth, and in no event not later than 1,000 days from date hereof." It was also recited that Atlantic wished to buy the entire oil produce of Superior "from all its present properties and its said properties so about to be acquired during a period of five years, commencing March 4, 1920, and for such longer period as said loan or any part thereof and interest shall remain unpaid."
To carry out these purposes the contract provided that Atlantic should loan to Catts, trustee, to enable him to acquire the scheduled property, "an amount up to $2,750,000, * * * which loan the trustee, or any one assuming said obligation, and Superior hereby agree to repay, with interest, * * * within 1,000 days from date hereof, and at the same time same shall be payable at the rate of not less than one-third of the net daily production from the said combined properties." Provision was also made that, of the 150,000 shares of stock issued by Superior to Catts, trustee, to pay for the newly acquired property, 86,667 shares were to be deposited with Atlantic as collateral. It was agreed a contract should be made for the Atlantic to buy, and Superior to sell, all its oil production of its owned and now acquired property at the current prices of the Seep Purchasing Agency for five years, "and so much longer as any part of said loan with interest, shall remain unpaid," with the understanding that, in paying for such oil, Atlantic could retain and apply to the note the price of one-third the oil, which sum Superior guaranteed should be at least $2,750 daily. And Superior and Catts agreed that another one-third of the oil income was to "be set apart and employed by Superior for maintenance of production, drilling, and betterments, for the purpose of maintaining and increasing the production of said combined properties."
By the contract, Superior had a right to anticipate payment of the entire loan, but, until the loan was paid, Superior could not increase its stock, and "with the express understanding that this is only for the purpose of further protecting said company [Atlantic] in the event that said company [Superior] shall, at any time prior to the repayment of said loan, fail to carry out the terms of this contract," Superior was to keep in Atlantic's hands the resignations of a majority of its directors, and, in case of default, Atlantic was empowered to elect a majority of Superior's directors, "so that all property owned or controlled by Superior shall be operated or liquidated for the repayment of said loan." Provision was further made by Superior and Catts, trustee, that one share of the stock held as collateral by Atlantic should issue to a person named by Atlantic, who should serve as a director "for the purpose of protecting said loan and its repayment, with interest," and also that Catts should serve as a director until the loan was paid.
At the date of this contract the authorized stock of Superior was 300,000 shares. It left the parties occupying the relation of lender and borrower. There is nothing whatever *783 in the record to show anything other than the law would presume from such a situation, namely, that both companies acted in good faith and for their own best interests. Tersely stated, the gist of the contract was that Superior was acquiring further oil properties, and was taking them in the name of its president, Catts, as trustee; that Atlantic was advancing the funds to Catts to acquire such properties; that Superior was assuming the debt; that to pay it Superior was setting aside one-third of its production at the prices set by the Seep Agency; that in case of default it was turning over its property and management to Atlantic until its debt was paid; and that, pending the loan, Superior was, for the purpose of Atlantic's protecting its loan, allowing on its board a director nominated by Atlantic, who had no financial interest in Superior. Meanwhile one-third of Superior's income was by contract allocated to the loan, another one-third to specific work heretofore noted, leaving but one-third free for Superior control. But that Superior was, from the start, falling behind in its daily payment of $2,750 required by the contract is evidenced by the settlement memorandum, later made and hereafter referred to, which shows that for the 118-day period from March 4th to July 1st, while the daily production payment guaranteed by the contract was $322,500, the actual production was only sufficient to pay $233,299.74. Moreover, it will be noted that, if this deficit continued, the 5-year production contract would be automatically extended until the loan was finally paid.
With this contract in force, which left Superior with a limited working capital, without power to increase its capital stock or to finance the acquisition of additional properties, Superior found itself in a condition which it outlined in a letter of May 29, 1920, wherein the facts are stated, viz.: (1) That its "early operations were comparatively limited in scope, and it was deemed wise to increase the area of its producing properties"; (2) in view of its "pipe line capacity, which is now materially in excess of present production"; and (3) that it should have "additional working capital provided through sale or exchange of 1,118,478 shares of new stock."
These considerations evidently led to Superior undertaking, through Catts, its president, negotiations with four prominent banking firms which it endeavored to enlist in its refinancing plan. Its letter to them, dated May 29, 1920, and accompanied with a proposed prospectus to the public, marked "confidential," dated June 5, 1920, in substance provided: That Superior increase its shares from 300,000 to 2,500,000, of which 1,018,478 shares will be presently issued for the purpose of acquiring the additional production and for working capital. At the conclusion of this operation there will be outstanding 1,231,811 shares, and there will be in the treasury of the corporation 1,268,189 additional shares. The plan also contemplated the Atlantic purchasing a substantial block of the stock for its own investment; the Atlantic purchasing for 10 years the entire output of Superior; the Atlantic undertaking the management of Superior for 3 years, by selecting a majority of the board of directors, and the offer to the syndicate of the stock at $19 per share.
While this plan of Superior was never carried through, yet, evidently with a view to its being carried through as outlined, a conditional contract, dated June 24, 1920, covering Superior's production for 10 years, by Atlantic, was entered into. We say "conditional contract," for it will be seen that the substitution of this contemplated 10-year contract for the 5-year one in force was, as the contract stated, conditioned that "it is agreed that said existing contracts between the parties remain in full force and effect until said buyer's loan to seller and interest shall be paid in full, and that this agreement shall not become operative and effective until said loan has been paid, all as aforesaid." In effect, this contract provided that, if Superior paid off its debt to Atlantic, then Atlantic's contract to take Superior's product for 10 years then, and then only, came into effect. This provisional contract, it will be noted, fixed prices according to the Seep Agency provision of the former contract, and in that connection it will be observed that both contracts had the same equitable provision, namely, that in case the agency posted no price for Somerset oil, the price should be fixed by three arbitrators, "one a refiner selected by Atlantic, one a producer selected by Superior, and the third to be selected by these two."
That it and other provisions were desired by Superior as a means of inducing the bankers to underwrite Superior's new issue of stock is shown by the testimony hereafter referred to. Indeed, it is clear that, to enable Superior to finance its plan and thus acquire the additional oil property needed to pay off its daily loan requirement and obtain *784 new capital, four things were necessary: (1) To induce Atlantic to exchange its indebtedness for stock; (2) to tie up its stock so acquired for two years; (3) to take Superior's entire product for 10 years instead of 5; and (4) to assume the management of Superior's properties. That these were the bankers' requirements during the negotiations between them and Superior is shown by the testimony of Francis M. Weld, their syndicate manager, who was called as a witness by the plaintiff, viz.:
"We also felt that it was of considerable importance to have the Atlantic stock tied up as it was for two years, so it could not come out on the market. In other words, they were getting only receipts; they were not getting actual stock. Naturally, we were very much influenced by the fact that the Atlantic Refining Company were to be the management of the Superior Oil Corporation; and we considered it important that this oil contract should be extended and kept in force for, I think it was, 10 years, because it meant a steady, sure market for the oil that was produced by the Superior Oil Corporation. It would keep them from having to shut down in bad times.
"XQ. Will you tell the court whether or not the bankers would have purchased the stock of the Superior Oil Corporation had it not been for the assumption and management by the Atlantic Refining Company and the 10-year oil contract that you have referred to? A. No; I do not think that they would have."
And, further, it will be noted, when this contract for 10 years' oil production was being considered by Superior at the directors' meeting of June 24, 1920, the minutes show that Director Henry, who, as we have seen, was the representative of Atlantic on Superior's board to safeguard its loan, stated that his company, "provided that so to do in any instance would not work to its own disadvantage, would at any time be glad to waive its right so to purchase under the terms of the contract, if the Superior Company deemed it advantageous to sell that oil elsewhere."
Whatever may have been the conduct of Catts, the president of Superior, during these negotiations, whatever the representations he made, no contract between Atlantic and Superior other than the 10-year oil provisional contract based on the bankers' requirement, had resulted therefrom when, on August 5, 1920, the corporate written contract between Atlantic and Superior here involved was made. On that day, as shown by Superior's minutes, a letter of Atlantic to Superior was presented at the directors' meeting, as follows:
"New York, August 5, 1920.
"Superior Oil Corporation, 32 Nassau Street, New York City Gentlemen: The undersigned company, under agreements with your company, to which we refer, has loaned and advanced moneys for the purchase of properties by your corporation and the charges and expenses incident thereto incurred by your corporation and ourselves. We are informed that Messrs. Brown Brothers, White, Weld & Co., Graham, Parsons & Co., and Frazier & Co., propose to loan your corporation the sum of $2,910,000, and to accept in payment thereof, under certain contingencies, 181,875 shares of stock of the Superior Oil Corporation.
"We hereby offer to accept 325,000 shares of the stock of your corporation, issued full-paid and nonassessable in full payment of the principal sum of all your indebtedness to us, including charges and expenses, and for interest accruing on said principal sum from June 1, 1920 (all evidence of such indebtedness to be canceled by us and surrendered to your corporation). Our acceptance is conditional upon your delivery to the aforementioned firms of 181,875 shares of your stock in payment of their loan to you, and furthermore conditional upon the aforementioned firms' purchase from your corporation 81,500 shares at $16 per share. Subject to the approval of your board of directors, we will accept from R. M. Catts, trustee, 86,666 shares of your capital stock now held by us as part payment of the 325,000 shares we offer to accept, leaving certificates for 238,334 shares of your stock to be delivered to us. We suggest that such delivery, coincident with delivery of 181,875 shares plus said 81,500 shares to bankers be made at the office of the Guaranty Trust Company in the city of New York on or before August 19, 1920.
"This offer is made subject to the resolution of your board of directors of June 24, 1920, and without in any way affecting our contract of June 24, 1920, with your corporation for the purchase of crude petroleum for the period of ten years.
"The Atlantic Refining Company,
"By [signed] W. M. Irish, Vice President."
"Thereupon, on motion duly made and seconded, it was unanimously resolved, that the board of directors hereby accept the offer *785 of the Atlantic Refining Company dated August 5, 1920, upon the terms thereof; and
"Further resolved, that the proper officers of this company be and they hereby are authorized and directed to deliver to the Atlantic Refining Company, or their nominee, in full payment of all indebtedness of this company to the Atlantic Refining Company (as per schedule to be agreed upon between the officers of this company and the Atlantic Refining Company, setting forth in detail the items of such indebtedness) 325,000 shares of the common stock of this company, delivery to be made by assignment to the Atlantic Refining Company by Robert M. Catts, trustee, of a certificate or certificates for 86,666 shares standing in the name of Robert M. Catts, trustee, and indorsed in blank, and a certificate or certificates for 238,334 shares standing in the name of the Atlantic Refining Company, or its nominee; and
"Further resolved, that the proper officers of this company be and they hereby are authorized and directed to execute and deliver to the Atlantic Refining Company, or its nominee, in pursuance of the preceding resolution, and the transfer agents and registrars to countersign and register, respectively, stock certificates in the forms to be approved at this meeting for 238,334 shares of the common stock of this company."
In pursuance of this resolution an account was stated which showed Superior was entitled to credits on its indebtedness of $295,787.78. This sum, deducted from its indebtedness to Atlantic, which Atlantic paid to Superior by check dated September 1, 1920, left Superior's indebtedness to Atlantic $2,750,000, which made the cost to Atlantic of the 325,000 shares of stock about $8.54 per share. Inasmuch as this contract obtained for Superior from Atlantic additional funds, and enabled it to pay off its debt to Atlantic, and thereby make the conditional 10-year contract an absolute one, it follows that the two contracts, one for the sale of the stock and the other for the sale of oil production, were so interrelated and indeed fused into one indivisible contract whole that a court of equity could not, in justice, hold the parties to one without holding them to both, nor annul one without annulling both.
Noting the happenings of events following the carrying out of the provisions of the contract, which was done the same month, it appears that very shortly trouble arose in the newly constituted management, which, on November 20, 1920, resulted in Catts, the president of Superior, writing a letter to the executive committee of the latter, objecting to a continuation of what he termed dual management, namely, the executive committee and himself. Thereupon the Atlantic Company, which was advised of such situation, notified Superior of its willingness to rescind the new contract, the 10-year oil contract, surrender its stock, and restore the status of debtor and creditor as they had existed. This offer, which was not accepted by Superior, was embodied in a letter which read as follows:
"We shall pass all reference to the conversion of our loan to the Superior into stock of that company, as referred to on the seventh and eighth pages of Mr. Catts' letter, with the simple statement that the conversion was most vigorously urged by Mr. Catts, and that the Atlantic deferred decision a very long time to dispose of numerous grave doubts which arose as to the propriety of the conversion. In fact, when the step was taken, there was still some doubt in the minds of some of us, and the overbearing element of our decision was our desire to assure for our refineries for a long period of time the appreciable and staple quantity of crude oil which Mr. Catts so specifically promised. This is probably as good an occasion as any to in all sincerity say that we are willing, and under the circumstances anxious, to be restored to our former position, whereby we would surrender our stock to the corporation, would be relieved from its management, would reinstate our advance to the Superior under the loan agreement of March 4, 1920, as amended March 9, 1920, cancel the 10-year crude oil contract of June 24, 1920, and reinstate the 5-year contract of March 10, 1920, and we hereby present this proposition for serious consideration by the executive committee and the board of directors of the Superior Oil Corporation, for action at any time prior to the next annual meeting."
The proofs show that oil was then selling between $4.25 and $4.50 per barrel, and the stock of Superior was selling at from $11 to $12 per share. On February 18, 1921, certain stockholders of Superior notified that company that this acquisition of stock of Superior by Atlantic at $8 per share, when the company was realizing $16 from others, was "unlawful and invalid, that a great injustice was done to the Superior Oil Corporation, and that a large loss was suffered by it. It is the imperative duty of the directors and officers of the Superior Company to see *786 that this injustice is righted, that the transaction is rescinded, and that the resultant loss to the Superior Oil Corporation shall be recovered, and toward that end I demand of the officers and directors of the Superior Oil Corporation that proper actions be promptly instituted by them in the courts to right this injustice and to recover the large losses to the Superior Oil Corporation." The notice also alleged that the 10-year oil contract was unlawful, in that it was procured by Atlantic when a majority of Superior's directors were agents of Atlantic, and when Superior's board of directors were dominated by Atlantic. On Superior's failing to bring suit, the present action was brought by such shareholders in behalf of Superior.
A vast amount of testimony was taken, but in the final analysis the trial court held the case narrowed to two questions, which it thus stated: "The vices of the transaction, as plaintiffs assert, are actual fraud in its accomplishment and legal inability of the Superior to issue the stock for one-half of its value." Addressing itself to those questions, the trial court found both questions against the Atlantic, holding in effect that Superior had no legal power to sell the stock in question at $8 per share and that Atlantic, in paying $8 a share for such stock, perpetrated a fraud on Superior. After a full argument of the case and due consideration, we are of opinion the court, in so doing, fell into error, and that it should have dismissed the bill.
Turning our attention first to the legal question as stated by the court below, namely, the asserted "legal inability of the Superior to issue stock for one-half its value," we note that this does not represent the real question. The question is not one of the power of a Delaware corporation to issue stock, but one of such corporation's power to sell stock. No attempt is here made to cancel or annul the stock issue as such. Indeed, it is here asserted that part of the issue properly passed into the hands of others; that Superior's sale of such other stock created a criterion of lawful value, and is the test of the legality of a sale made of the same issue to the Atlantic Company, which stock Superior, as noted above, declined to receive back when Atlantic tendered its return, and which the court, by its decree, compels Atlantic to hold. It will thus be seen that the question before us is not one of stock issue, but of stock sale. Turning to the proofs, was there such a difference in price between Atlantic buying at $8 when the bankers' syndicate paid $16, as made the Atlantic's purchase a fraud on Superior?
Now, if fraud were committed by the Atlantic, it is clear that the parties wronged were, first, the bankers' syndicate, who paid $16 a share for the same stock for which Atlantic was paying $8 a share; second, the Old Dominion Company, which was selling its property on the basis of $16 a share when the Atlantic was buying the same stock at $8 per share; third, stockholders in the company, who were, to the extent of their proportionate holdings, defrauded by the Superior only obtaining $8 per share on its Atlantic stock, when it should have received $16. Now, what are the proofs and the facts in that regard? There is no doubt that Catts, Superior's president, who, it seems, was the only person representing Superior, both in its proposed sales to the Atlantic and in its dealings with the bankers' syndicate, did request Irish, the vice president of Atlantic, to keep secret the $8 price he was making for them, and that Irish complied with Catts' request, and that the bankers' syndicate at first supposed the Atlantic was paying the same price they were paying. But, before the contract of sale of August, noted above, was made, the testimony is explicit that the bankers' syndicate knew the Atlantic was paying only $8. This is made clear by the testimony of F. M. Weld, the manager of the bankers' syndicate, as follows:
"XQ. Mr. Weld, at one stage of the transaction, you appear, by the letters that have been offered here by Mr. Berenson and produced on call by you, to have misinterpreted the position of the Atlantic Refining Company, and, to the extent which you did, will you testify whether or not the Atlantic Refining Company undertook to correct any misapprehension you may have had with respect to its part in the purchase of stock of the Superior? A. Mr. Catts corrected our misunderstandings. * * *
"XQ. Did you at any time, Mr. Weld, represent to anybody that the Atlantic Refining Company had agreed to pay $16 a share for each share of stock of the Superior Oil Corporation to be acquired by it? A. We may have, at the very beginning of our negotiations with Mr. Catts, before we were corrected in our misunderstanding. * * *
"RDQ. So that you knew that the debt was to be canceled and the stock, 325,000 shares of stock, was to be taken over by the Atlantic Refining Company, some time prior to August 5, 1920; is that the way you want *787 to leave it? A. Yes, that is what I told you."
In that connection it will be noted that the bankers' syndicate have not, and do not, now complain or join in the present bill, but, on the contrary, four of the bankers' syndicate, to wit, S. C. Brown, of Brown Bros. & Co., Howard S. Graham, of Graham, Parsons & Co., Howard F. Hansell, Jr., of Frazier & Co., and F. M. Weld, of White, Weld & Co., who were members of the board of directors of Superior, and on March 10, 1921, attended a regular meeting of the board of directors of Superior, when the matter of the present bill was brought up, and these four directors each voted and joined with all the other directors present in a resolution which stated the bill was "a false, malicious, and unwarranted attack upon the Atlantic Refining Company and the Superior Oil Corporation, and without foundation in law or in equity," and authorized counsel to take "action in court against said suit," and to take such action as was deemed essential "for the protection of the corporation against such action."
Moreover, the proofs show that the two provisions of the contract, to wit, the 10-year oil contract and directorate control of Superior by Atlantic, which are now alleged to constitute fraud and corporate domination on the part of Atlantic, were matters insisted on by the bankers' syndicate, and without which they would not underwrite the new issue and finance the company. In that regard the testimony of Weld, the bankers' syndicate manager, quoted above, is that there were three requirements on the part of the bankers' syndicate.
Moreover, it will be noted that the bankers' syndicate requirement that the stock acquired by Atlantic should be tied up for two years was of the highest importance to the syndicate, in enabling them to sell the $16 underwritten stock at a profit of $3 per share to themselves. This was pointedly called to the attention of Superior's directors on August 5th, when the contract was concluded; it being stated in the minutes that "the president stated that the carrying out of the proposed deposit agreement would be of material benefit to the company, in that the withholding of the stock so deposited from the market would enable the company to obtain a higher value for its stock in the event of the acquisition of future properties in exchange for stock." Indeed, had they not tied up Atlantic's $8 stock, Atlantic, as any one familiar with underwriting will realize, could have demoralized the market the bankers were creating for Superior's stock. The bankers very properly insisted on this tie-up of Atlantic's stock for their own protection. Second, it goes without saying that what benefited the bankers benefited Superior, and that unless that concession had been made the underwriting would not have been undertaken. The advantage of the underwriting was that thereby Superior was able to obtain from the underwriters $16 per share for such stock. Third. The two-year tie-up of the stock by the Atlantic was not only a substantial concession on its part, because it deprived that company of the exercise of all powers of ownership of its stock for two years, but the outcome of it was disastrous, for at the end of that time the tied-up stock of 325,000 shares had fallen to $6.12 per share, so that, apart from all other considerations given, the stock for which Atlantic paid in money $2,750,000 had a market value of $1,990,625, a loss of $759,375, due to the two-year tie-up requirement of the bankers. Summing up, then, the relation of the bankers to the contract here involved, the proofs show that the Atlantic was not guilty of any unfair dealing toward them, and that their very proper insistence on their requirement has resulted in very substantial loss by Atlantic.
We turn next to the charge of alleged fraud on the Old Dominion Company, of which it suffices to say that Old Dominion makes no complaint. Old Dominion had no dealings with, or relations to, Atlantic. Old Dominion's only relation was with Superior, and such relation was that of buyer and seller. As seller of its property, Old Dominion set its own price on such property; as seller of its own stock, Superior fixed its own price. On that basis, the minds of the two companies met, and from the fact that Old Dominion has not complained, has not joined in this bill or voted its stock to rescind, its silence would indicate its standing by the transaction as carried out.
We turn next to the alleged wrong done to the stockholders of Superior. The outstanding stock of Superior was over 900,000 shares. What is their attitude towards this alleged fraud? The holders of some 10,000 shares of the stock bring this bill, alleging fraud in this contract, while, leaving entirely out the 325,000 shares owned by Atlantic, which took no part in such action, the holders of 137,161 shares of the stock, in person or by proxy, attended a stockholders' meeting held on March 28, 1922, and voted unanimously *788 in approval of the action of Superior in declining the offer of Atlantic of December 20, 1920, to return the stock purchased by Atlantic, to rescind the 10-year production contract, and restore the pre-August, 1920, status.
Deferring, for a later consideration, the alleged misrepresentations, fraudulent concealments, and other acts which are said to have brought about this contract, and confining ourselves to the contract as a contract to sell stock of the same issue to different persons at different prices, we address ourselves to the charge of the bill, viz.: "Your orators are informed and believe, and therefore allege, that the transaction by which the refining company acquired said 325,000 shares of the capital stock of the Superior was in violation of the statutes of Delaware in such case made and provided, and it was therefore illegal and ultra vires."
Since the decree was entered below, the case of Bodell v. General Gas & Electric Corporation, 132 A. 442, in which the Court of Chancery of Delaware considered the action of a Delaware corporation in selling stock of the same issue at different prices to different persons, has been decided. It is therefore due to the court below to say that this court has the benefit of an enlightening and authoritative pronouncement which the lower court did not have. Without quoting at length from the exhaustive opinion there delivered, we confine ourselves to such references as particularly apply to our case. To our mind, the basic principle of that case, which permits such different stock prices to different persons, is summed up by the chancery court in these words:
"The mere showing of the two prices would, without satisfactory explanation, undoubtedly entitle the complainants to relief. But, if these two prices are justified by a showing of fairness in the light of all the circumstances, so that what appears to be an injury turns out to be a benefit to those complaining, there can be no ground for interference. If the directors, in the course they are pursuing, are acting in the genuine and beneficial interest of the corporation, and are thereby promoting the interests of all stockholders in a very tangible way, and especially the interests of the class of stockholders who are complaining, why should not the general principles applicable to persons standing in trust relationships come to their supporting aid?"
In that case, as in this, there was the element of the requirement of bankers marketing the stock and also the sale of some stock to certain persons at $25, which factors enabled the bankers to market the residue of the stock at $45. Of this situation, the chancery court says:
"This policy, it is claimed, made the sale of the additional stock an easy matter, for, in addition to the regular dividend of $1.50 a year which the stock was paying, the announced policy held out to purchasers the prospect, just referred to, of making a profit on the stock they might take at $25 for their regular dividends. Thus, to use an old expression, the stock lifted itself by its own boot straps. If the value of $45 per share is thus created by the combined action of the announced policy and the creation of market prices by the sustaining operations of the bankers on the exchange, it is manifest that $45, the price which was concurrently obtained by the corporation when it was announced that class A dividends would be allowed to buy it at $25 per share, does not represent a sales price which the directors can in fairness be held to. It would be highly unreasonable to point to sales at $45 as showing the inadequacy of sales at $25, if the latter was what in fact made the former possible."
It will thus be seen that, while an arbitrary sale of the same issue of stock at different prices to different persons would not be sanctioned, such differential sales will be sustained, if based on business and commercial facts which, in the exercise of fair business judgment, lead directors to follow such a course.
Under the proofs in this case, we think the situation was one that necessarily gave the directors of Superior a zone of discretion as to this proposed issue of stock. Superior was in debt, and its oil production was not sufficient to make the stipulated payments on its debt to Atlantic, and consequently Atlantic had the right, in case of default, at the dates stipulated in the contract, to take possession of its property and manage it until its debt was paid. Superior felt the need of buying more oil property to increase its production and to increase its working capital. Nor could Superior increase its stock to accomplish these objects, for the contract provided "that, so long as any part of said loan of $2,750,000 and interest remains unpaid, the capital stock of Superior shall not be increased." The only way it could pay off its creditor was to induce Atlantic to convert its debt into stock. On the other hand, the bankers who would underwrite the stock *789 would not do so unless Atlantic did three things: First, undertake the management of Superior; second, agree to take for 10 years, at market prices, Superior's entire present and to be acquired oil production; and, third, tie up the bought Superior stock for two years. Under such circumstances, and in view of the fact that the bankers would not underwrite the issue unless these conditions were complied with, it is clear that the sale of stock to Atlantic at $8 secured for Superior the $16 from the bankers, and that the making of such sales at different prices was within the field of business discretion vested in the board of Superior's directors, under the quoted decisions of the Court of Chancery, provided, of course, they acted in good faith.
This brings us to the basic question of the case: Whether Atlantic perpetrated a fraud on Superior in the purchase of the stock, or, as stated by the court: "The question of fraud turns upon whether or not proper disclosures were made to the Superior with respect to what the refining company was to pay for the 325,000 shares acquired by it, or whether the Superior and the Old Dominion, which accepted 150,000 shares in part payment for its property, were deceived by false statements, and led to believe that the refining company was to pay and was paying $16 per share therefor."
In taking up that question, we note certain basic facts, among which are: First, that in carrying out its plan of financing, through stock increase, Superior acted wholly and solely through Robert M. Catts, its president; that whatever may have been the derelictions of Catts, and however he may have abused his trust by gaining a personal profit to himself in the sale of property to Superior or otherwise, during this financing, his acts were in no way connected with, participated in, or even known to, Atlantic; second, that Catts was not called by either side as a witness, and the court is without the benefit and light of the inner story of this financing which Catts carried out for his company, nor of his dealings for Superior with the bankers' syndicate, nor his account of his dealing with Atlantic; third, that the proof that, subsequent to the financing, Catts disagreed with, and was hostile to, Atlantic in its management of Superior's affairs, explains why Atlantic would naturally not call him as a witness; and, lastly, the failure of the plaintiffs to call Catts, who was presumably hostile to Atlantic, is not explained.
Turning, then, to the question of fraud on the part of Atlantic, we address ourselves to the elements of fraud assembled in the court's opinion. We here note that, if the June plans for this financing, which miscarried and were never carried out, had in fact never been proposed, and if the only plan proposed had been the August plan, which went through, there would have been nothing to litigate, and this case would not have been brought. As we read that opinion, the several elements of alleged fraud recited therein group themselves under these heads: First, that the acquisition of stock by Atlantic at $8 per share, when the bankers were paying $16, was a violation of the law of Delaware; second, that when the third, or August, contract was made, Catts and Atlantic had a secret agreement, which was not disclosed to Superior; third, that in making the second, or 10-year oil production contract, Catts was unfaithful to Superior, with the knowledge of Atlantic; fourth, the conduct of E. J. Henry, an officer of Atlantic, who was a director on Superior's board; fifth, by the third, or August, contract, Atlantic fraudulently secured a contract for Superior's production for 10 years; sixth, Catts was wrongfully receiving 45,000 shares for his services; seventh, that proper disclosures were not made by Atlantic to Superior that Atlantic was buying its shares at $8.
Taking up seriatim these alleged elements of fraud, we are clear that the issue or sale of this $8 stock by Superior was legal under the Delaware law. The stock was no-par stock; it was not a sale or issue under par, for example, not the case of a sale at $8 for a stock of a greater par value; and under Delaware corporate law $8 was a legal basis which justified its issue. Its sale at $8 being justified, the further question arises: Was the $8 stock illegal, because stock of the same issue was, by the same general transaction, sold at the same time to others at $16? As we have seen elsewhere, sales made at different prices are lawful under Delaware law, if made by the company for fair and adequate business and administrative reasons. Such being the fact in this case, the first alleged ground of fraud fails, unless Superior was deceived and misled into the belief that, by its contract of August, Atlantic was paying $16 a share for its stock; in other words, that, instead of being paid by Atlantic $2,750,000 for its stock, it was being paid $5,500,000.
This brings us to the alleged ground of fraud that, when the third, or August, contract *790 was made between Superior and Atlantic, Catts and Atlantic had a secret agreement, which was not disclosed to Superior. Addressing ourselves to that question, it appears that, when Catts first brought to the attention of Irish, the vice president of Atlantic, the suggestion of Atlantic changing Superior's debt, $2,750,000, into Superior stock on the basis of $8 per share, he requested Irish not to tell what price he was paying. We see no evidence of fraud in Catts simply making such request and in Irish complying with it. Both men were acting as sole representatives of their respective companies, and were both administrative officers of high rank. Irish had no reason to doubt Catts' integrity, or his loyalty to his company, and he had substantial grounds for accrediting him in every respect. Superior had already, in a wholly different transaction, constituted Catts its trustee to acquire extensive and valuable oil properties; Irish's company had advanced to Catts, as the trustee and representative of Superior, $2,750,000; Catts had bought the properties; Superior had recognized the integrity of Catts by taking over the properties, issuing stock to him in payment, and assuming as its own the loan of $2,750,000, which Catts had made from Atlantic, and had, as security for such loan, provided for a 5-year sale of its production at stipulated prices, and all these acts of Catts had been embodied in a contract between the parties, dated March 4, 1920, a contract which has never been questioned or assailed.
It is quite clear, then, that when later Catts came again to Irish with another plan, one providing for Superior increasing its stock and a bankers' syndicate underwriting part of the stock increase, and Atlantic changing its loan into stock, that Irish had every reason to trust, and none to distrust, Catts. He might well assume that the man who had theretofore been intrusted with, and successfully accomplished, the securing of the Atlantic loan of $2,750,000 and its expenditures, would be called on to carry out Superior's new plan of getting Atlantic to exchange that loan for Superior stock. Irish was presumed to know the law of Delaware, that Superior's stock could properly and legally be sold at $8, and that under the law of Delaware such stock could be issued at different prices to different persons. Under those circumstances, and while Catts' efforts were being made, we see nothing sinister or fraudulent in the president and vice president of these companies keeping their own counsel, and of each assuming that each of them was acting with the knowledge and acquiescence of their respective companies. Subsequent events may indicate that Catts may have had some fraudulent purpose of further personal gain at the expense of his company in carrying out the financing; but, if he had, there is no proof that Irish knew of such purpose, or that there was anything to put him on notice of Catts' disloyalty to Superior. That in these intricate and involved operations Catts, during the negotiations, did not tell the bankers' syndicate what price Atlantic was paying for its stock, or that he even led them to believe Atlantic was paying $16, may, for present purposes, be assumed; but there is no proof that Irish, or his company, knew that such was the case, or were in any way a party to what Catts did, and, if such deception was practiced on the bankers, it was the act of Superior's president and sole representative, and not that of Atlantic.
But, without imputing bad faith to any one, we can well understand that, in carrying through a financing plan which, by its own record declaration, as heretofore noted, Superior desired in order to acquire larger fields of production and also working capital for oil development, Catts had a delicate problem before him, which involved several distinct angles, viz. to pay off Atlantic's debt, which was an absolute bar to Superior's issue of stock; to induce Atlantic to convert its debt, with assured interest payments and the safe position of a creditor, into the hazard of a stockholder with uncertain dividends; to make the new issue of stock one that would sell to the bankers and one the bankers could market. It was a situation where there were proposed buyers with different objects in view, and where each buyer would act from his own standpoint, and not from the others, and where Catts, who was dealing with three separate parties, to wit, Atlantic, bankers, and Old Dominion, might well keep his negotiations with each wholly within his own, or their, knowledge; for, to instance the latter alone, it might well be that Old Dominion might well refuse to base its sale on a $16 price for the stock it took for its exchange of property, when Atlantic was basing its exchange of debt for stock on an $8 basis, and this, too, although it was advised that the different prices were lawful under Delaware law.
But, in justice to Irish, it should here be noted that, while Irish complied with Catts' request as to not revealing the $8 price, he *791 did, when asked by the bankers as to the price, state that his company was not paying $16, viz.: "I had started to say, in answer to the last question, that the price the Atlantic Refining Company was to pay for its stock was raised specifically. My recollection is that the question was put to me by Mr. Weld, and that I replied to him that, inasmuch as Mr. Catts had requested a meeting, our negotiations be with him. I was not at liberty to state specifically the consideration that the Atlantic Refining Company would give for their stock, but that, inasmuch as the figure of $16 a share had been mentioned, I would say that the Atlantic Refining Company would not pay $16." And, as we have said, whatever may have been Catts' conduct, motive, or success in leading the bankers, in the earlier negotiations, to believe that Atlantic was paying $16 for its stock, it is unquestioned that, when the final contract was made on August 5th, they then knew the $8 price Atlantic was paying. In that regard note the testimony of Weld, the manager of the bankers' syndicate, as quoted above.
Indeed, that both bankers and Catts felt it wise not to mention the price Atlantic paid for its stock is indicated by the fact that, in the prospectus of June 5, 1920, which Catts proposed to the bankers for issue to the public, and also in that of August 9, 1920, which the bankers issued, while the price of sale was fixed at $19, and the statement made that Atlantic had "purchased a substantial block of these shares for its own investment," no statement was made to the public of the price paid. It would therefore seem that, if Irish and Atlantic are to be adjudged guilty of fraud for not disclosing to the bankers the price of $8 they were paying for their stock, the bankers were equally guilty of fraud in failing to inform the public in this prospectus that Atlantic had paid but $8 for the stock the prospectus stated that company had bought an inference of fraud wholly unwarranted.
As we have seen, the transaction was finally consummated by the written offer of Atlantic and the written acceptance of Superior, at the meeting of Superior's directors held August 5th. At this meeting there were present Messrs. Evalenko, Catts, West, Fisk, and Davis, who had been members of the board and were present at the directors' meeting of March 4th, when the loan of $2,750,000, made by Atlantic to Catts, had been taken over by Superior when Superior's and Atlantic's relations were solely those of debtor and creditor. Four of them, Evalenko, Catts, Fisk, and Davis, were present at the meeting of June 24th, when the provisional 10-year oil production contract was made, which, as we have seen, came into force when, and only when, Atlantic's loan was paid. Four of them, Evalenko, West, Fisk, and Davis, were present at a meeting held July 14, where the four, together with Schleter, another director, as the minutes show, "in the absence of Mr. Catts and Mr. Henry, who were in attendance upon a meeting of the bankers, where a general discussion of the existing situation was indulged in for half an hour." An examination of the minutes shows the presence of Evalenko, Fisk, and Davis at the directors' meetings of May 24, June 7, June 24, and July 14, while West was present at all these except March 9 and June 24.
Moreover, the Superior board declared two dividends, one May 13, 1920, the other August 5, 1920, and it may be assumed that, before the board declared these dividends, it knew the assets and liabilities of the company. Superior's balance sheet, under date of July 1, 1920, showed "bills payable" in the sum of $2,516,700.26, "to be paid out of oil production in 1,000 days from March 4, 1920," manifestly its debt to Atlantic, as reduced by daily payments. It is quite clear that they knew of the $2,750,000 loan from Atlantic, and the absence from the minutes of any further loans or advances made, or to be made, by that company during April, May, June, and July, must, in the nature of things, have made them cognizant of the fact that Superior's indebtedness to Atlantic was the $2,750,000 which they had taken part in securing. When, therefore, Atlantic's offer was made, which recited, "The undersigned company, under agreements with your company, to which we refer, has loaned and advanced money for the purchase of properties by your corporation and the charges and expenses incident thereto incurred by your corporation and ourselves," it is clear that this specific reference to agreements under which loans were made and moneys advanced for the specific purpose of Superior buying properties, aptly described the $2,750,000 advanced and secured, and could have referred to no other indebtedness. And then Atlantic's offer was "to accept 325,000 shares of the stock of your corporation, issued full-paid and nonassessable, in full payment of the principal sum of all your indebtedness to us, including charges and expenses, and for interest accruing on said indebtedness from *792 June 1, 1920 (all evidence of such indebtedness to be canceled by us and surrendered to your corporation)," it is equally clear that the price of such stock was fixed by the $2,750,000 debt. In view of the fact that there had been minor expenses, and that there were credits for oil to be adjusted, and that payments had been made on account, these were facts that, in themselves, prevented an immediate determination of the price this would net on the stock; but all of these factors were ascertainable from Superior's books, and the statement subsequently prepared by Suender, the treasurer of Superior, under the prior unchallenged management, and a member of its board, and on which settlement was made, shows that Atlantic had no other loan than the $2,750,000 to Superior. On that basis, 325,000 shares for $2,750,000 made the price to Atlantic about $8.54.
In view of these actual facts, as shown to exist, it is now contended that the directors of Superior believed, and had been led to believe, that the indebtedness of their company was of such size that, in this trade of debt for stock, the price Atlantic was to pay was $16 per share. Reduced to figures, this means 325,000 shares at $16 per share was $5,200,000, and the Superior directors supposed the indebtedness of their company to Atlantic was $2,450,000 more than it actually was. No ground is shown to make possible such a situation; they had attended the meetings in the preceding three months; they knew that in the loan-securing agreement of March 4, 1920, in the entering into of which they had taken part, it was stipulated that Superior could not "mortgage or create any lien on, or otherwise incumber, any of its said oil and gas properties"; they knew that at the intervening meetings no action to increase their indebtedness had been taken; and they knew that the whole financing Superior had intrusted to Catts had, as one of its objects, the obtaining of working capital.
In view of these facts and of such knowledge on the part of Superior's directors, the contention now made that they supposed the indebtedness of their company to Atlantic was $2,450,000 more than it was; that they were resting under the impression that this indebtedness had been increased in three months by $2,450,000, and had swollen to over $5,000,000, and without any action by the board of directors, is such a draft on credulity that it may be dismissed without a discussion of other proofs, documents, and minutes tending to strengthen our conclusion; for, if we were to believe that these directors were so helplessly ignorant of the affairs of their company as this contention would assume, we might well feel the bankers' syndicate were wiser than they knew in making one of their underwriting requirements that Atlantic should undertake management of Superior's affairs. Moreover, as bearing on the question of Superior being indebted to Atlantic by some $2,750,000 in excess of its $2,750,000 loan, it will be noted that it was not until June 19, 1920, that Superior had drawn upon Atlantic for, and exhausted, the said $2,750,000 loan, for on that day the several drafts made thereon by Superior during March, April, May, and June ended in the draft of $180,802.60, which totaled the advances to said $2,750,000, which was in accordance with the agreement of March 4, 1920, which provided for the loan by Atlantic of "an amount up to $2,750,000, of which amount $1,500,000 shall be available on or before March 15, 1920, and the balance as required thereafter," an agreement made by these supposedly deceived directors.
We pass, now, to the third alleged ground of fraud, namely, that in making the second, or 10-year oil production, contract, Catts was unfaithful to Superior with the knowledge of Atlantic. Such contention, to our mind, is based on false assumptions. It assumes that Catts was the creator of this contract; it assumes Atlantic was responsible for Catts' acts; it assumes that the contract overreached Superior; it assumes that Atlantic fraudulently procured it. The good faith and business discretion of two companies making such a contract is to be judged from the standpoint of experienced oil men Superior a producer; Atlantic a refiner. In the first place, the bankers who were to float this proposed stock issue of Superior required Superior to obtain such a contract from Atlantic, and the proof, as quoted above, is that unless it, together with other requirements of the bankers, had been complied with, they would not have underwritten the issue. And not only was this a requirement of the bankers, as set forth in testimony already quoted, but to any one at all familiar with the oil business the contract was so evidently desirable for the oil producer to have, and so undesirable for the refiner to be burdened with, that the statement made by the Atlantic's representative, as recorded in Superior's directors' minutes of June 24, evidences the actual situation, viz.: "Mr. Henry presented and read to the meeting the proposed *793 contract between the Superior Oil Corporation and the Atlantic Refining Company for the sale and purchase of crude oil, which was read at length. At the conclusion of the reading he stated that the Atlantic Company was not particularly anxious to purchase the production of the properties outside of the state of Kentucky, and that, provided that so to do in any instance would not work to its own disadvantage, it would at any time be glad to waive its rights so to purchase under the terms of the contract, if the Superior Company deemed it advantageous to sell that oil elsewhere," and properly shows the real status of Atlantic toward this contract.
The marketing of oil production, especially in fields remote from refiners, is the most serious problem confronting a producer. The building of pipe lines for transportation; the construction of tanks for storage; evaporation and leaking during storage; insurance; lightning strikage; the fact that his oil is a drug in times of low prices and his tanks are full, while his production still goes on all these and many other factors make it very desirable for the producer to sell his product for a long term for he is a forced seller. On the other hand, all these elements become burdens to a refiner, who, when he makes such a contract, gives up his position as a free buyer for that of a bound buyer. It will be noted, also, that this 10-year contract which is alleged to have been fraudulently exacted by Atlantic, and which was annulled by the court's decree, embodied, save in years, nothing the two companies had not placed in their 5-year contract, when both companies were dealing independently and for their own interests; but even that 5-year contract was not the ordinary contract of buyers and sellers, but was exceptional, in that it was made by Superior to pay its debt and by Atlantic to secure its debt. And it will be noted, also, that the 10-year contract was provisional, that it was not to become operative until the $2,750,000 debt was paid, and that it was not made as an independent buyer and seller contract, without other consideration, but was an integral, dependent, and interwoven part of the financing and stock sale contract which was entered into on August 5th. It will also be noted that, as already stated, the 5-year contract already in existence might itself have extended long beyond its 5-year limit in case the $2,750,000 debt was not paid in toto. After a study of the proofs, and in light of the situation of the contracting parties, we find no fraud was practiced by Atlantic on Superior in the making of such 10-year contract, and that Superior has shown no equity to a decree annulling it.
This brings us to the alleged fraudulent conduct of E. J. Henry, an officer of Atlantic, who was a director on Superior's board. It will be noted that Mr. Henry did not occupy the position ordinarily held by a director. He was not placed on the board by the stockholders of Superior; they reposed no trust in him; he was not their representative; he was not empowered to manage Superior's affairs; he was placed there by Atlantic to safeguard its loan, and for no other purpose, and his status was defined in writing by Superior and Atlantic as follows: "That one share of stock held by Atlantic shall be issued in the name of the nominee of Atlantic, and that one director of said board of directors of Superior shall during the continuance of said loan be and remain a nominee of Atlantic, for the purpose of protecting said loan and its repayment with interest."
Of course, he was bound to act in good faith toward all parties in this dual position; but we can well understand that, so long as the internal affairs of Superior did not jeopardize Atlantic's loan, the standard of his duty was to co-operate with the directors of Superior, who were chosen by its stockholders. When Superior's directors, at a meeting of June 24th, entered into the 10-year contract, the minutes show Henry distinctly acted as Atlantic's representative, presented the offer, stated Atlantic's relation to it, and abstained from voting when the board accepted it. At the meeting of August 5th, when the final contract was adopted, Henry but followed the unanimous vote of Superior's directors and concurred in their action and wishes.
It is said, however, that on occasions Henry remained silent when the statement was made that Atlantic was paying $16 for its stock. This is sharply denied by Henry, and in that he is supported by the testimony of others, who united in saying no such statements were made in Henry's presence. But, assuming for present purposes such statements were made, and that Henry, who knew that Atlantic was only paying $8, remained silent, such silence is not necessarily fraudulent in purpose, for Henry might well have assumed that, as Superior had intrusted the financing plant to Catts, its president, as Catts was its sole representative in dealing *794 with the bankers and Atlantic, and as Catts had requested Atlantic not to disclose its price, we may as well attribute Henry's silence to his feeling he was complying with Superior's wishes, expressed by its president, about a sale at different prices, which was lawful, as to evidence a purpose to mislead and defraud.
In conclusion, we may add that, when the burdens and benefits accruing to Atlantic and Superior are summarized, especially in the light of after events, it would seem that there was equal, if not stronger, ground for stockholders of Atlantic criticizing their company's management for entering into these contracts than for Superior's blaming their management.
On the part of Atlantic, that company burdened itself by contracting to handle the entire product of Superior for 10 years; by contracting to buy and handle that product when oil was at low figures and a drug on the market, and in point of fact oil which was at a peak price of over $4 per barrel when the August, 1920, contract was made had fallen to somewhat over $2 just before this bill was filed; by assuming the whole management of Superior when it only owned one-third of its stock; by changing its position of creditor with assured periodic interest payments for that of stockholder with uncertain dividends; by tying up its stock for 2 years as that stock which others, during the tie-up period, sold for $16, and indeed as high as $20.75 had only a value of some $6 when the tie-up expired. On the other hand, by these contracts, Superior got the money to pay off all its indebtedness, enabled the bankers to sell its stock, and obtained working capital and funds to buy additional property.
In closing, I deem it proper to say that, after the thorough and protracted hearing of the case on argument, in view of the size of the record and the important issues involved, we were, of course, not prepared to discuss the case before the members of the court separated. Following our usual custom in such cases, the judges separated without any discussion of it whatever. When later we met for conference, each one of us, after a thorough and individual study of the record and briefs, reported his conclusions substantially as they are embodied in this opinion. I make this statement for the double purpose of acknowledging the helpful aid given me by the laborious conference memoranda of my associates, and because, in announcing this opinion, I feel the fact that each of us, on a separate, independent study of the case, arrived at the same conclusion, greatly strengthens the joint opinion which is herewith rendered, which reverses the decree below and remands the record, with directions to dismiss the bill. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586203/ | 33 So.3d 42 (2010)
MUNIZ
v.
STATE.
No. 2D08-5135.
District Court of Appeal of Florida, Second District.
April 16, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586308/ | 176 So.2d 138 (1965)
247 La. 1067
Mrs. Lillian Holloway DIXON et al.
v.
J. Howell FLOURNOY, ex-officio Tax Collector for Caddo Parish, Louisiana.
No. 47656.
Supreme Court of Louisiana.
June 7, 1965.
Henry Politz, J., Bennett Johnston, Jr., Johnston & Johnston, Shreveport, for plaintiffs-appellants.
Cook, Clark, Egan, Yancey & King, Sidney E. Cook, Shreveport, Jack P. F. Gremillion, Atty. Gen., Carroll Buck, First Asst. Atty. Gen., Ferdinand A. Cashio, Asst. Atty. Gen., for appellee.
HAWTHORNE, Justice.
Eight persons, all residents and property taxpayers of Caddo Parish, instituted this suit against the ex officio tax collector of *139 that parish,[1] individually and in behalf of all taxpayers in Caddo Parish similarly situated. They prayed for recovery of the 1964 state ad valorem tax assessed under R.S. 47:1701, which they paid under protest, and for judgment declaring the tax to be unconstitutional, null, and void as applied to them and to all other persons in Caddo Parish similarly situated, and relieving them from all future payment of such tax. The defendant excepted, alleging among other things non-compliance with certain prerequisites to the filing of such a suit. The exception was maintained without written reasons, the suit was dismissed, and plaintiffs have appealed.
R.S. 47:1701 imposes for state purposes a statewide ad valorem tax of 5¾ mills, which is levied under the authority of Article 10, Section 3, of the Louisiana Constitution of 1921.[2]
Plaintiffs' petition alleges that each owns his own home, which is urban improved residential real estate, and that they represent all persons owning such real estate in the parish; that they have each been assessed with the 5¾-mill statewide ad valorem tax levied by R.S. 47:1701; that each plaintiff paid the tax under protest pursuant to R.S. 47:2110, and that they timely instituted this suit under that statute for the refund of the taxes; that their properties are being assessed at percentages which vary between a low of 31.4 per cent and a high of 42 per cent of actual value; that the average assessment ratio[3] for urban improved residential real estate in Caddo Parish is 32.8 per cent; that in all Louisiana parishes taken as a whole the average assessment ratio for urban improved residential property is 17.6 per cent; that in some parishes the average assessment for such property is below 10 per cent, whereas in Caddo it is 32.8 per cent; that the average assessment ratio for all classes of property varies throughout the parishes of the state from 31.5 per cent in Caddo to 7.1 per cent in Lafayette Parish; that because of these facts petitioners are being discriminated againstthat is, their property is being assessed at a higher percentage of actual value for ad valorem taxes than is that of the owners of similar property in any of the other 63 parishes of the State of Louisiana, and that accordingly they are being required to pay a higher effective tax rate on their property than are the owners of similar property in any of the other 63 parishes; that there is no legal reason for petitioners' being discriminated against in their property assessments; that the Louisiana Tax Commission is charged under the law with the duty of equalizing property tax assessments between the various parishes, and that this commission either cannot, will not, or in any event has not made any attempt to equalize property assessments within the various parishes of the state, and no plan is being considered by the commission which would bring about the equalization of assessments.
Paragraph 10-A of their amended petition recites: "That the discrepancy in the assessment ratios for the various parishes of Louisiana have [sic] existed in Louisiana for many years; that the Louisiana Tax Commission, the body charged by law with the duty of equalizing taxes, has had knowledge of the great variation between the assessment ratios of the various parishes, *140 and in spite of this knowledge the Louisiana Tax Commission has altogether failed to take any action to equalize taxes; that this failure to act on the part of the Louisiana Tax Commission constitutes purposeful discrimination, which results in systematic lack of equality in payment of taxes; that this lack of equality is not in any way accidental, or the result of errors in judgment, but rather amounts to a purposeful failure to discharge the duty of the Tax Commission to equalize taxes."
Plaintiffs further allege that by reason of the alleged discrimination the collection of the 5¾-mill statewide ad valorem tax is unconstitutional as applied to them and to all others similarly situated in Caddo Parish; that this tax violates the due process and the equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, and also violates the due process clause of Article 1, Section 2, of the Louisiana Constitution and the uniformity clause of Article 10, Section 1, of the Louisiana Constitution.
Plaintiffs in support of their contention that their petition states a cause of action call our attention to constitutional and statutory provisions as well as principles of law established by jurisprudence. They rely especially on the provision in Article 10, Section 1, of the Louisiana Constitution that all taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax, and on the provision in Article 10, Section 12, that all real estate shall be valued at actual cash value, listed on the assessment rolls, and submitted to the Louisiana Tax Commission.
The statutes relied on are R.S. 47:1957, 1988, and 1989. R.S. 47:1957 provides that all taxable property in the state shall be assessed by the Louisiana Tax Commission, that the property shall be listed and assessed at actual cash value, and that the actual cash value of all property fixed by the tax commission shall be the actual cash value for all purposes. R.S. 47:1988 makes it the mandatory duty of the tax commission to equalize the value of all taxable property. R.S. 47:1989 provides that the value of all taxable property in the state shall be fixed by the tax commission.[4]
Cases are cited for the proposition that the systematic irregularity of the assessment of property of the same class is an unconstitutional discrimination against one who is compelled by such a system to pay more than his fair share of the aggregate tax,[5] and also for the proposition that the courts have recognized that a statute though fair on its face may be rendered unconstitutional by the manner in which it is administered.[6]
The principles of law relied upon by the plaintiffs are well recognized; but before one can file such a suit relying on these principles, he must first comply with certain conditions required by our law.
R.S. 47:1998 deals with the right of a taxpayer to seek judicial review when he is dissatisfied with the action of the parish board of review in refusing to make a recommendation in respect to actual cash valuation *141 to the tax commission, or with the tax commission's refusal to comply with such recommendation, or in regard to the actual cash valuation fixed by the tax commission (paragraph 1); or when the taxpayer is dissatisfied and contests the correctness or legality of any assessment made against his property (paragraph 2). The first paragraph of this section, which authorizes the taxpayer to seek judicial review after he has sought and been denied administrative relief, is not applicable to the instant case.
The second paragraph of this section reads as follows:
"Any taxpayer in the state, the parish of Orleans excepted, who has filed a sworn list or return of his property for taxation on or before the first day of April of any year, shall have the right to institute suit in the court having jurisdiction of the cause of action, for the purpose of contesting the correctness or legality of any assessment made against the property listed on such return. Any such suit or legal proceeding shall not be instituted before the assessment rolls are filed in the office of the clerk of court of the parish in which the property is situated as now provided by law, nor later than thirty days following the date of filing of the rolls. * * * No other condition precedent than those specified herein shall be required of the taxpayer in order to permit him to exercise the right of action hereby granted." (Italics ours.)
Act 97 of 1924, which is now the second paragraph of R.S. 47:1998, was discussed by this court in Bowman-Hicks Lumber Co. v. Reid, 169 La. 905, 126 So. 232. We said:
"* * * The assessment as finally determined by the assessing authorities is presumed to be correct. This assessment called for no action on the part of the parish board in the absence of a complaint brought before it by the plaintiff. The revision of the assessment must be obtained, if at all, at the hands of the court. The latest legislative authority for a taxpayer to contest the correctness or legality of any assessment for purposes of taxation appears in Act No. 97 of 1924. * * *
"* * *
"If the legislative intention in adopting the quoted statute was to require the return of all taxpayers to be examined by the board of reviewers to serve as an objection or complaint by the taxpayers as a condition precedent for judicial action, such intention would be specifically set forth. The contrary is the case. It would seem to be too plain for dispute that the object of the Legislature in enacting the statute in question was to simplify the procedure whereby a taxpayer might judicially contest the correctness or legality of his assessment by requiring only the filing of a sworn return, dispensing with all subsequent proceedings involved in the objections and complaints of the taxpayer before the assessing authorities as a condition precedent for his right of action in the courts." (Italics ours.)
Under paragraph 2 of Section 1998 certain conditions are required of the taxpayer in order for him to seek judicial relief. First, he must file a sworn list or return of his property on or before the first day of April of the year.[7] Second, such a suit shall not be instituted before the assessment rolls are filed in the office of the clerk of court of the parish in which the property is situated, or later than 30 days following the date of the filing of the rolls.[8] These are conditions *142 for the institution of a suit in which the taxpayer contests the legality of any assessment made against his property.
Plaintiffs' suit alleging the unconstitutionality of the tax as applied to them and all other persons in Caddo Parish similarly situated has for its basis allegations of fact that their properties in Caddo Parish are being assessed at a higher percentage of actual value for the statewide ad valorem tax than are those of the owners of similar properties in the other 63 parishes. They say that the assessment of their property in this way constitutes discrimination as to them, that the Louisiana Tax Commission has not discharged its duty imposed by law to equalize property assessments, that this failure to perform that duty constitutes purposeful discrimination which results in systematic lack of equality in payment of taxes, and that because of these facts they are required to pay a higher tax on their property than the owners of similar property in any of the other parishes of Louisiana.
While the ultimate object of plaintiffs' suit is to have the property tax as applied to them declared unconstitutional, this object is dependent upon their being able to prove that the assessment upon which the tax is based is incorrect and illegal. Their real complaint therefore is not of the tax as distinguished from the assessment, but is that their assessments are incorrect and illegal; and a suit which has as one of its objects to contest the correctness or legality of an assessment must satisfy the conditions of the second paragraph of R.S. 47:1998.[9]
There is no allegation in plaintiffs' petition that any of them filed the sworn list or return of his property for taxation before April 1, and their suit, which was filed on December 28, 1964, was filed more than 30 days after November 15, the date the law requires the filing of the assessment rolls in the office of the clerk of court.
Since plaintiffs in the instant case have failed to comply with the conditions prescribed for the exercise of their right, that is, have failed to file the sworn list or return of their property and have failed to institute their suit within the time specified, the judgment of the district court maintaining the exception and dismissing their suit was correct.
For the reasons assigned the judgment appealed from is affirmed; appellants are to pay all costs.
HAMITER, J., concurs in the result.
NOTES
[1] Plaintiffs, having alleged the statute levying the statewide ad valorem tax to be unconstitutional, caused the attorney general of the State of Louisiana to be cited and served with a copy of the petition, pursuant to Article 1880 of the Code of Civil Procedure.
[2] Article 10, Section 3, reads: "The rate of State taxation of property for all purposes shall not exceed, in any one year, five and one-quarter mills on the dollar of its assessed value; provided, the Legislature may, by a vote of two-thirds of the members elected to each house, increase such rate to not more than five and three-quarter mills on the dollar."
[3] Assessment ratio is the percentage which the amount of an assessment carried on the parish tax rolls bears to the actual value of the property.
[4] Under this section is it the duty of the tax commission to "fix the percentage of the actual cash valuation upon which the state taxes must be collected after the actual cash valuation for the whole state has been fixed in order to realize necessary revenues, according to legislative appropriation."
[5] Sioux City Bridge Company v. Dakota County, Nebraska, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340; Cumberland Coal Co. v. Board of Revision, etc., 284 U.S. 23, 52 S.Ct. 48, 76 L.Ed. 146; Township of Hillsborough, Somerset County v. Cromwell, 326 U.S. 620, 66 S.Ct. 445. 90 L.Ed. 358; Moses Lake Homes, Inc. v. Grant County, 365 U.S. 744, 81 S.Ct. 870, 6 L.Ed.2d 66; State v. Alabama Power Co., 254 Ala. 327, 48 So.2d 445.
[6] Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Simmons v. City of Shreveport, 221 La. 902, 60 So. 2d 867; City of New Orleans v. Levy, 233 La. 844, 98 So.2d 210
[7] R.S. 47:1956, among other things, makes it the duty of each property owner to file a sworn list of his property with the assessor on or before April 1, and this is the sworn list which must be filed as one of the conditions precedent to the institution of suit.
[8] Under R.S. 47:1993 it is made one of the duties of each tax assessor (the Parish of Orleans excepted) to file with the recorder of mortgages the completed tax roll of his parish on or before the 15th day of November in each calendar year. It will thus be seen that where the taxpayer is contesting the legality of any assessment, he shall not institute his suit before the assessment rolls are filed in the office of the clerk of court (ex officio recorder of mortgages) of the parish in which the property is situated, or later than 30 days following the date of the filing, which under the law is on or before November 15.
[9] Plaintiffs' contention that they may bring this suit under R.S. 47:2110 without regard to R.S. 47:1998 would obtain if they were contesting the constitutionality of the tax alone without regard to the assessment, and the conditions required by the second paragraph of R.S. 47:1998 would not apply. See Tremont Lumber Co. v. Bond, 166 La. 125, 116 So. 723; see also Tremont Lumber Co. v. Police Jury of Winn Parish, 164 La. 257, 113 So. 839. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3032084/ | FILED
NOT FOR PUBLICATION JAN 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SARBJIT SINGH, No. 06-72388
Petitioner, Agency No. A097-588-755
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Sarbjit Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying Singh’s applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review an adverse credibility
determination for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.
2002). We deny the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination
because Singh’s asylum application, which included a declaration, is materially
inconsistent with his testimony regarding alleged incidents of past persecution.
Singh failed to provide a reasonable explanation for these inconsistencies, and the
inconsistencies go to the heart of his claim. See Li v. Ashcroft, 378 F.3d 959, 964
(9th Cir. 2004). In the absence of credible testimony, Singh failed to demonstrate
eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Because Singh’s CAT claim is based on the same evidence that the IJ and
BIA found not credible, and he fails to cite to specific evidence in the record to
show it is more likely than not he would be tortured if returned to India, his CAT
claim fails. See id. at 1157.
Singh’s motion to strike his original opening brief is granted.
PETITION FOR REVIEW DENIED.
JBG 2 06-72388 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/464960/ | 783 F.2d 1132
19 Fed. R. Serv. 1679
UNITED STATES of America, Appellee,v.Frederick Martin PRICE, Appellant.
No. 84-5141.
United States Court of Appeals,Fourth Circuit.
Argued May 10, 1985.Decided Feb. 21, 1986.
Martha F. Rasin (Bruce C. Bereano, Annapolis, Md., on brief) for appellant.
Barbara Sale (J. Frederick Motz, U.S. Atty., Wendy P. Arnell, Asst. U.S. Atty., Baltimore, Md., on brief), for appellee.
Before MURNAGHAN, ERVIN and SNEEDEN, Circuit Judges.
ERVIN, Circuit Judge:
1
This is an appeal from a conviction for conversion of the property of a common carrier used in interstate commerce in violation of 18 U.S.C. Sec. 660. Frederick Martin Price was charged in a three count indictment with theft from an interstate shipment, converting the property of a common carrier, and breaking and entering carrier facilities following an alleged attempted sale of a truckload of meat in August of 1983. A confidential informant of the Drug Enforcement Administration played a role in the events leading to Price's arrest. Prior to trial, Price sought disclosure of the identity of the informant. The district court denied Price's motion without a hearing. A bench trial was held in March 1983, and Price was found guilty of conversion on count two. Price now appeals arguing (1) that the district court erred in refusing to compel the disclosure of the identity of the confidential informant, (2) that insufficient evidence was presented at trial to establish that the trailer and its contents belonged to Apple Lines, a common carrier, to support a conviction under 18 U.S.C. Sec. 660, and (3) that there was insufficient evidence of conversion. Finding merit to Price's first argument, we reverse and remand the case for a new trial.
I.
2
At the time of his arrest, Price was a truck driver for Apple Lines, Inc. of South Dakota. On August 1, 1983, on orders from Apple Lines, Price picked up a load of meat from Val-Agri, a meat company in Garden City, Kansas. After Price's truck was loaded, a wire seal was placed on the doors of the truck. It was to be broken only when the load was delivered to the purchaser, Safeway Stores, Inc., in Landover, Maryland, under Safeway's supervision. Price drove to Maryland and arrived at the Safeway depot at approximately 4:30 or 5:00 p.m. on August 3. Price had been delayed due to freeway construction on his route, and consequently had missed his scheduled time to unload the meat. Price telephoned Apple Lines to inform them of this development, and the company instructed him to find a truck stop and lay over for the night. Safeway personnel recommended that Price go to a truck stop in Jessup, Maryland. Price was instructed to return to the Safeway depot at 6:00 a.m. the following morning to unload the meat.
3
Price proceeded to the Jessup truck stop, but was unable to secure a vacant room. He slept that night in his truck. The following morning he left Jessup at 4:30 or 4:45 a.m. and arrived at the Safeway depot at approximately 5:45 a.m., only to learn that there had apparently been a misunderstanding between the Apple Lines dispatcher and Safeway personnel regarding the unloading time. Safeway told Price that they had expected him at 4:00 a.m., not 6:00 a.m. As a result, Price was again unable to deliver his load. He called the Apple Lines dispatcher, who contacted Safeway. Although Safeway agreed to try to work Price in before they closed that day, Price was not allowed to unload that day. He again contacted Apple Lines. The company agreed to put Price up for the night in a hotel.
4
Price asked around to locate a reasonably priced hotel that could accommodate his rig in the parking lot. Someone recommended a Holiday Inn in Bowie, Maryland. Price drove to the hotel only to be informed that it would not accept the Apple Line's credit system. A Holiday Inn employee referred Price to "Rip's" motel, which was frequented by truckers. Price drove to Rip's, but that motel also refused to honor the form of credit Price had available to him.
5
It was now approximately 1:00 p.m. on the afternoon of August 5. Price, quite frustrated by this point, again telephoned Apple Lines. He told the company that he had been "driving around in circles" all day and that he "just wanted to get some rest and be able to relax." (JA 219). Apple Lines agreed to compensate Price for staying with the rig another night. After making sure that the truck was parked in a safe place, Price went to Rip's Restaurant for lunch and then Rip's Bar for drinks. Price spent most of the rest of August 5 at the bar, leaving once to purchase low price beer and a second time to play pool with another Rip's patron at a different bar in the vicinity. On at least one of these occasions, Price did not drive because he had been drinking.
6
Also passing the day at Rip's bar was a confidential informant of the Drug Enforcement Administration ("DEA") and a companion of the informant. These men identified themselves as Maryland crabbers and were simply referred to at trial as "the crabbers" because their identity remains undisclosed. Price met the crabbers at Rip's and talked about crabbing with them. In the course of the conversation, Price related the facts that he was a trucker and had a truck load of meat, and told them of the difficulties he had encountered trying to get rid of his load.
7
There are two versions of what transpired after Price met the crabbers and disclosed his predicament to them. DEA Special Agent William R. Nelson testified at trial that at about 4:00 p.m. on August 5 he received a telephone call from the informant crabber indicating that the informant was at Rip's and in the company of a truck driver who had offered to sell a tractor-trailer full of meat. Nelson told the informant to remain with the trucker and to call him back. At approximately 4:30 p.m., the informant called Nelson and indicated that the trucker's rig had the name Apple on it. During this phone call Nelson was able to overhear a conversation between the informant and an unidentified third person. Nelson engaged in a three-way conversation with the two of them. He asked the informant where the meat came from. The unidentified person responded to the informant that it was from Garden City. Nelson next asked how old it was; the unidentified person indicated that it was two days old. Nelson then asked "how much for the truck trailer and beef meaning how much money. The overheard response was it is worth more but $10,000 cash will do." (JA 271). Nelson testified that he then "overheard a portion of a conversation between the informant and this unknown individual ... [who said that] the beef was going to go to Safeway but it was refused and it would be accepted tomorrow. After delivery take me 30 miles up the road or to an airport. And that was the conversation I overheard between the informant and this unknown individual." (JA 272). According to the government, this "unknown individual" involved in the 4:30 p.m. phone call was Price.1
8
In contrast, Price testified that he left Rip's to play pool at approximately 4:00 p.m. and headed back to Rip's at approximately 6:45 p.m. Defense witness Donald R. Weaver corroborated Price's testimony in part. Weaver testified that he and Price left Rip's at approximately 4:00 p.m. to play pool, and that the two were at the pool hall until approximately 5:00 p.m. At that time Weaver left the pool hall, but Price did not.2 Consequently, the testimony of Price and Weaver suggest that Price was not at Rip's at the time of the 4:30 p.m. phone call to Agent Nelson.
9
Price testified that he telephoned Apple Lines at 7:30 and 7:52 p.m. to check in and tell the dispatcher how he could be reached. According to Price, after he got off the phone he was approached by the crabbers. They allegedly led him out of sight of other Rip's patrons, and then proceeded to threaten him. Price testified that the informant said to him:
10
You are not going anywhere with that truck. He says that's ours now and he said you try to do anything or anything he says your life will be in jeopardy and he went like this and showed me that he had something stuck down in his pants which resembled a gun to me.
11
Q. Then, what happened?
12
A. He told me to walk out the door to my truck.
13
Q. Then, go ahead?
14
A. I walked out the door in the company of these two gentlemen. Upon reaching outside walked me over to a car and he said there was another gentlemen standing there. He said this is the gentleman that's going to take your truck and I said whatever you say, man, it's yours, you know, I don't argue with somebody that messes with my life. So--
15
Q. At this point, did you feel that your life was in danger?
16
A. Yes, sir, I did, because I was somewhat intoxicated and this gentleman apparently had a gun.
17
(JA 228-29).
18
According to the testimony of FBI Special Agent David M. Zacur, the DEA informant and Zacur drove to Rip's in the informant's truck. Zacur had with him $10,000 in cash. When they arrived at Rip's, the informant went into Rip's while Zacur remained outside. About five minutes later the informant came back outside along with Price and an unidentified individual. The informant approached Zacur to tell him that Price had "some business." The informant then introduced Price to Zacur. Zacur testified that Price asked him whether he was interested in purchasing the load of meat. Zacur indicated an interest, but said that he wanted to inspect what he was purchasing. In the presence of the informant and the unidentified person, Price handed Zacur a portfolio containing documents describing the load and a Polaroid photograph of the load. Zacur then indicated that he wished to examine the contents of the rig and proposed that they proceed to the Holiday Inn parking lot to complete the transaction. Price drove Zacur in the Apple Lines truck to the Holiday Inn. The informant drove over separately and parked in a section of the lot out of view of the truck. On the way, Price allegedly asked Zacur if he had the money with him. Zacur replied that he did and displayed a stack of fifty-dollar bills. Subsequently, Price asked if, after the deal was completed, Zacur would drop him four to eight miles down the road so that Price could call his employer and indicate that he had been hijacked.
19
Zacur further testified that after he and Price arrived at the Holiday Inn, he asked Price if he had anything with which to break the wire seal on the load. Zacur testified that Price said he did not. (JA 97). In fact, Price had tools in the truck which could have been used for that purpose. (JA 234). Zacur then walked over to where the informant was parked and obtained a pair of channel locks from him. According to Zacur, he returned along with FBI Special Agent John Friel, and introduced Friel to Price as his partner. Zacur gave the channel locks to Price and told him to open the truck. Price apparently tried to break the seal but claimed that he could not. Zacur then broke the seal with no difficulty. He entered the truck and inspected the load. He then placed Price under arrest. (JA 73-101).
20
Agent Friel testified regarding the circumstances of his meeting Price at the Holiday Inn. Friel was in the Holiday Inn bar when Zacur, Price and the informant arrived at the motel. According to Friel, the informant and the informant's unidentified companion came into the bar, sat down with Friel and told him that Price and Zacur were parking the truck. The informant left the bar and, a short while later, the unidentified companion left as well. The informant then returned with Price and introduced him to Friel. At some point the informant again left the bar. Friel testified that he and Price then engaged in a conversation in which Price indicated that he wished to sell his load for $10,000. Friel informed Price that he wanted to have the load dropped off in New Jersey. Friel and Price then went into the parking lot where Zacur was waiting with the truck. (JA 110-12, 117-121).
21
Price's testimony differs somewhat from that of the agents. He claims that after his conversation with the crabbers, during which they allegedly threatened him, the crabbers escorted him out to his truck and directed him to get inside. Zacur, who had been outside with the truck, got in on the passenger side. The crabbers instructed Price to do what Zacur said. Price testified that Zacur told him to drive to the Holiday Inn and that on the way Zacur asked to see the truck's portfolio. He testified that after they arrived at the Holiday Inn, Zacur, not the informant, escorted him into the bar to meet Friel.3
22
Price was indicted on August 16, 1983 by a federal grand jury for the alleged attempted sale. The three count indictment charged him with theft from an interstate shipment, in violation of 18 U.S.C. Sec. 659; converting the property of a common carrier used in interstate commerce, in violation of 18 U.S.C. Sec. 660; and breaking and entering carrier facilities, in violation of 18 U.S.C. Sec. 2117. Price was arraigned on August 30, 1983; he entered a plea of not guilty on all counts.
23
On September 12, 1983, Price filed a motion to compel disclosure of the identity of the DEA informant. The government opposed the motion, and on February 17, 1984, the district court denied the motion without a hearing. Under this circuit's rule that disclosure of an informant is required when the informant is a "participant" in the event and not required when the informant is a "mere tipster," McLawhorn v. North Carolina, 484 F.2d 1, 5 (4th Cir.1973), the district court found that "[d]isclosure is not required in this instance because [the] informant ... was merely a tipster who led to the eventual contact between the FBI agents and the defendant." (JA 13).
24
On March 6, 1984, Price waived his right to a jury and the case proceeded to trial. At the request of the government, count three of the indictment alleging breaking and entering was dismissed. At the close of the government's case, Price moved for judgment of acquittal. The district court granted the motion as to count one alleging theft from an interstate shipment, and denied the motion as to count two alleging conversion of the property of a common carrier. At the close of all the evidence, the court found Price guilty of conversion on count two.
25
Price subsequently filed a motion for a new trial and to set aside the guilty verdict, which was denied by the district court. The court then sentenced him to two years, with all but ninety days suspended.
26
Price now appeals his conviction. He argues that the district court erred in refusing to compel disclosure of the identity of the informant and that the denial of his motion to compel disclosure was prejudicial to his case because his defense was based on duress and entrapment. He further argues that there was insufficient evidence presented at trial to establish that the trailer and its contents belonged to Apple Lines and that there was insufficient evidence of conversion of the truck, trailer and meat to support a conviction on count two.
II.
27
In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the Supreme Court recognized the "informer's privilege." According to the Court:
28
What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
29
Id. at 60, 77 S.Ct. at 627 (citations omitted). While an informant's identity will often be privileged from disclosure, there are limits to the scope of that privilege arising from
30
fundamental requirements of fairness. Where the disclosure of an informer's identity or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
31
Id. at 60-61, 77 S.Ct. at 627-628 (footnotes omitted). The Court determined that "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. Rather,
32
the problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.
33
Id.
34
The role played by the informant in Roviaro is somewhat analogous to the role played by the informant in this case. In Roviaro, the defendant was convicted of the sale of heroin and of knowing concealment and transportation after importation of heroin. An informant was involved in the events leading to Roviaro's arrest. During a material part of the criminal enterprise, a police officer hid in the trunk of a car while Roviaro and the informant engaged in a conversation about the drug deal and the informant drove to the pick-up point. The officer testified at trial regarding the conversation between Rovario and the informant, which the officer overheard.4 At trial, the informant's part in the transaction was described by government witnesses. Rovario sought disclosure of the informant's identity, and when the government refused, the district court did not compel disclosure. The Supreme Court found that the district court
35
committed reversible error when it allowed the Government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.
36
Id. The Court found that the charge against Roviaro, "when viewed in connection with the evidence introduced at the trial, is so closely related to [the informant] as to make his identity and testimony highly material." As the Court explained, "[t]he circumstances of this case demonstrate that [the informant's] possible testimony was highly relevant and might have been helpful to the defense." Id. at 63-64, 77 S.Ct. at 629. The defendant's ability to cross-examine the police officers involved was
37
hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. [The informant] had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner's identity or on the identity of the package. He was the only witness who might have testified to petitioner's possible lack of knowledge of the contents of the package that he "transported" from the tree to [the informant's] car. The desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.
38
Id. at 64, 77 S.Ct. at 629. The Court believed that the government's use at trial of the defendant's conversation with the informant
39
particularly emphasizes the unfairness of the nondisclosure in this case. The only person, other than petitioner himself, who could controvert, explain or amplify [the officer's] report of this important conversation was [the informant]. Contradiction or amplification might have borne upon petitioner's knowledge of the contents of the package or might have tended to show an entrapment.
40
Id. The Court reversed the conviction and remanded the case to the district court. Id. at 66, 77 S.Ct. at 630.
41
In applying Roviaro, this court has drawn a distinction between informants who are "participants" in a criminal transaction, and those who are "mere tipsters." United States v. Brinkman, 739 F.2d 977, 981 (4th Cir.1984); McLawhorn v. State of North Carolina, 484 F.2d 1 (4th Cir.1973). In McLawhorn we held that
42
disclosure of the informant's identity is required where the informant is an actual participant, particularly where he helps set up the criminal occurrence.... Therefore, one of the factors tending to show that the prosecution is not entitled to withhold from the accused information as to the identity of an informant is the qualification of the informant to testify directly concerning the very transaction constituting the crime.
43
On the other hand, the privilege of nondisclosure ordinarily applies where the informant is neither a participant in the offenses, nor helps set up its commission, but is a mere tipster who only supplies a lead to law investigating and enforcement officers.
44
Id. at 5 (citations omitted); accord United States v. Barnes, 486 F.2d 776, 778-79 (8th Cir.1973). We emphasized that
45
[o]rdinarily, knowledge of the identity of a tipster would not be essential in preparing the defense of the accused and the public interest in protecting such informants should weigh heavily in favor of nondisclosure. However, where the informant is an actual participant, and thus a witness to material and relevant events, fundamental fairness dictates that the accused have access to him as a potential witness. In such instances disclosure of identity should be required.
46
Id.
47
In McLawhorn, the informant set up the criminal transaction and participated in its execution. The court found that the informant was a "material witness who could testify directly from personal knowledge" regarding the crimes with which the defendant was charged. Consequently, "his testimony was mandated in order to accomplish the purpose of a criminal trial-- finding the truth." Id. at 7. The court held that where an informant is a participant in a criminal enterprise, a defendant is not required to present proof of his or her need for the informant's testimony. Such a requirement would "place an unjustifiable burden on the defense," particularly where alleged entrapment is contrived and perpetrated by the informant. Id. McLawhorn also recognized that informants often have a pecuniary interest in the arrest of the defendant, which increases the risk of entrapment.5 Id. at 7 n. 18. The informant in McLawhorn "participated" in the criminal incident through attempting to arrange a sale of drugs by the defendant, meeting with him in private, introducing him to the federal agent, riding in a car with the agent and the defendant and participating in the sale. Id. at 6.6 The court concluded that under these circumstances, the trial court had erred in refusing to compel disclosure of the informant's identity. Id.7
48
In the case at bar, the government argues that disclosure of the informant's identity was not required because the informant was "barely more than a mere tipster." Appellees' Brief at 12. However, the informant in this case did much more than tip off the government regarding Price's alleged desire to sell his rig. The informant set up the deal. He was a necessary party to the telephone negotiations which led to the attempted sale. It was in the course of the phone call that the informant communicated the alleged offer of sale to the agent, an unidentified person alleged to be Price named his price and both sides, through the informant, agreed. The informant was clearly an "active participant" in this episode under McLawhorn. Further, because agent Nelson did not know the identity of the alleged trucker during the phone conversation, the informant and his partner8 are the only witnesses who can testify as to whether Price was, in fact, the party to the negotiations. Cf. Rovario, 353 U.S. at 54, 77 S.Ct. at 624. The government's failure to present evidence linking Price to the telephone negotiations is particularly troublesome in light of the fact that Weaver, a disinterested witness, corroborated Price's testimony that he could not have been at Rip's at the time the call was made.
49
The informant's involvement did not cease after the sale had been arranged. The informant introduced Price to agent Zacur, drove to the Holiday Inn and supplied Zacur with channel locks to break the seal on the truck. According to Agent Friel, the informant also brought Price into the Holiday Inn bar to introduce him to Friel. Further, as in McLawhorn, Price wished to present a defense premised on duress or entrapment contrived and perpetrated by the informant. Under these circumstances, as in Roviaro and McLawhorn, the district court's refusal to compel disclosure of the informant's identity denied Price a fair trial.
III.
50
Having concluded that the district court erred in refusing to compel disclosure of the informant's identity, we turn to the question of whether to reverse the conviction, or simply remand the case to the district court for an evidentiary hearing. In Rovario and McLawhorn, it was apparent from the record that the informants were so closely connected with the criminal transactions in those cases that failure to disclose their identity was reversible error. Neither court ordered a remand for an evidentiary hearing. In some cases involving confidential informants, however, courts have remanded the cases for a hearing, either to engage in the Rovario balancing test or to assess the harm to the defendant's case of a wrongful failure to disclose an informant's identity.
51
In Gaines v. Hess, 662 F.2d 1364 (10th Cir.1981), for example, the court found that the trial court's refusal to compel disclosure of the identity of an informant who set up a drug sale and was a material witness to the sale would violate the defendant's due process rights "if in fact the informant could provide potentially significant exculpatory testimony." Id. at 1368. The Tenth Circuit remanded Gaines for an in camera hearing to determine "whether the informant's testimony would lend significant credence to [the defendant's] defense." Id. at 1369. If the district court found that the informant would make an exculpatory witness, the state would be required to retry the defendant with the informant present or release the defendant from custody. Id. See also United States v. Freund, 525 F.2d 873, 877-78 (5th Cir.1976) (remanding case for an evidentiary hearing to determine whether Rovario required disclosure where the informant was simply a witness to an alleged improper search). In United States v. Barnes, supra, the Eighth Circuit remanded the case to the district court for an evidentiary hearing on the question of whether the defendant had been prejudiced by the government's refusal to disclose the informant's identity. Having determined from the record that the failure to disclose was in error, the Barnes court did not suggest that the district court conduct an in camera hearing. Rather, the informant was to be examined with the defendant and counsel present. 486 F.2d at 780-81.
52
As the Fifth Circuit recognized in Freund, the propriety of remanding a case for an evidentiary hearing depends on the particular circumstances of the case. "[T]here will be circumstances in which an in camera hearing is either unnecessary or insufficient to protect the defendant's rights." 525 F.2d at 878; see also Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968) (conviction reversed without remand for a hearing where trial court refused to allow defense counsel to question informant as to his real name and address). The case at bar bears important similarities to Rovario and McLawhorn, making remand for an evidentiary hearing both unnecessary and inappropriate in light of those authorities. In this case, as in Rovario and McLawhorn, the informant set up the criminal transaction. In all three cases, the informant was a material witness who could testify to the defendant's knowing participation in the crime. In Rovario, as here, a government agent overheard a conversation between the informant and a person alleged to be the defendant, and testified about the conversation at trial. The Supreme Court found that such testimony "particularly emphasiz[ed] the unfairness of nondisclosure" in Rovario. 153 U.S. at 64, 77 S. Ct. at 629.9 In McLawhorn, as in this case, the defendant wished to present evidence of entrapment perpetrated by the informant.
53
Due to the similarities in these cases, it is clear from the record before this court that disclosure in this case was required as a matter of law.10 Accordingly, Price's conviction is reversed and the case remanded for a new trial.11
54
REVERSED AND REMANDED.
SNEEDEN, Circuit Judge, dissenting:
55
I respectfully dissent from the majority's decision to reverse the trial court and compel disclosure of the confidential informant's name. Although he was more than a mere "tipster," the informant in this case did not participate in the unlawful conversion of property, nor did he help to set up the criminal occurrence. Furthermore, since Price did not legitimately allege entrapment or duress, disclosure of the informant's identity would not have significantly assisted him in his defense. Thus, I believe the majority erred in concluding that Price's interest in learning the informant's identity outweighed the public's interest in guarding this confidential information.
56
The cornerstone of the majority's opinion is Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), in which the Supreme Court held that, based on the facts of that case, disclosure of an informer's identity was required by fundamental notions of fairness. In reaching its conclusion, the majority also relies heavily on McLawhorn v. State of North Carolina, 484 F.2d 1 (4th Cir.1973), a decision by this court requiring disclosure of an informant's identity "where the informant is an actual participant (in the crime), particularly where he helps set up the criminal occurrence...." Id. at 5. Roviaro and McLawhorn are, however, distinguishable from the case at hand.
57
In Roviaro, the Supreme Court noted that the purpose behind the privilege of nondisclosure is the furtherance and protection of the public interest in effective law enforcement. 353 U.S. at 59, 77 S.Ct. at 627. The Court noted that this privilege is limited. Id. at 60, 77 S.Ct. at 627. However, the Court refused to articulate a fixed rule defining when disclosure is justifiable. Id. at 62, 77 S.Ct. at 629. Instead, the Court stated that a balancing test must be performed--the public interest in protecting the flow of information balanced against an individual's right to prepare his defense. Id. Factors to be weighed included consideration of the crime charged, possible defenses, the possible significance of the informer's testimony and "other relevant factors." Id.
58
The facts of Roviaro compelled the tipping of the scales in favor of disclosure. The defendant in that case was accused of knowingly and fraudulently receiving, concealing, buying and facilitating the transportation and concealment of heroin with the knowledge that the drug was unlawfully imported into the United States. 353 U.S. at 54, 77 S. Ct. at 624. The testimony of the confidential informant in Roviaro would be directly related to these charges because the informant had helped to set up the criminal occurrence and played a prominent part in it. 353 U.S. at 64, 77 S. Ct. at 629. The informant's testimony might have cast doubt upon the identity of the defendant or the package of drugs he was accused of transporting. Furthermore, the informant was the only witness who might have testified to the defendant's possible lack of knowledge of the contents of the drug package he transported to the informer's car. Id. Finally, the informant was the only person, other than the defendant himself, who could controvert, explain or amplify the report of a police officer who eavesdropped on a conversation between the defendant and the informant in which the accused directed the informant to the site of the drug pickup. Id. The officer, hidden in the trunk of the informant's car, reported that he had observed the defendant exit from the car, walk to a tree, pick up a package, return to the car, deposit the package and had heard the defendant advise the informant that he would call him in a couple of days. 353 U.S. at 57, 77 S.Ct. at 626. The informant's testimony in Roviaro was thus material and highly relevant.
59
The facts of the McLawhorn case also indicate that the testimony of the confidential informant was critically important to the defendant. The informant in McLawhorn was working with a police detective in an undercover drug investigation. 484 F.2d at 3. The informant told the detective that the defendant McLawhorn was involved in drug trafficking and offered to arrange a cocaine sale. Id. The informant later spotted McLawhorn driving a car and signaled him to stop. Following a brief conversation, the informant introduced the detective to McLawhorn as a potential customer. Id. The informant negotiated a sale of one gram of cocaine. Then, according to the detective's testimony, McLawhorn sold the drug to both he and the informant. Id. McLawhorn was later charged with illegal transportation, possession and sale of a narcotic drug. Id.
60
The informant's role in McLawhorn thus made his testimony highly relevant. The informant set up the drug deal, negotiated a price and actually participated in the sale of the cocaine. The informant's role in the present case was far more limited. The confidential informant's involvement here consisted of alerting federal authorities to the fact that a truck driver in a bar announced he would sell his shipment, introducing the driver to federal agents and traveling to the location at which the truck and its contents were to be sold. The informant did not participate in negotiations for the actual sale. Instead, defendant Price identified himself to F.B.I. Agent Zacur as the driver of a truck loaded with meat. The defendant inquired whether Zacur wanted to buy the truck, trailer and contents for $10,000. Responding, Zacur indicated that if an inspection verified Price's description of the truck's cargo, a purchase price of $10,000 would be agreeable. The agent told Price, however, the sale must occur at a nearby hotel.
61
The confidential informant traveled to the hotel and introduced Price to another federal agent whom he described as Zacur's associate. The informant did not ride to the hotel with Price or Zacur. The informant's involvement, for all practical purposes, ended at this point. Although he was on the hotel premises, the confidential informant was not present when Price opened the truck trailer's door to display the cargo to Zacur. Nor was the informant present when the agents arrested Price. In fact, the informant did not even witness the crime. He was positioned in front of the hotel restaurant while Price, Zacur and the truck were located behind the restaurant. Thus, since the confidential informant did not play a material role in the consummation of the crime of conversion and was not present when the crime was committed, this case is clearly distinguishable from Roviaro and McLawhorn.
62
The facts in this case are much more analogous to those found in our recent decision of United States v. Brinkman, 739 F.2d 977 (4th Cir.1984). In Brinkman we held that the district court did not abuse its discretion in denying the disclosure of the identity and location of a government informant. Id. at 981. Brinkman was convicted of violating the Extortionate Credit Transaction Act,1 and the Interstate Travel Act.2 His problems with the law stemmed from an unhappy business venture with Manual Kane. Id. The F.B.I. learned that Brinkman wished to hire a hit man to beat up Kane. Id. at 979. Agents arranged for a confidential informant to meet Brinkman. The informant introduced Brinkman to an undercover agent who was described as a hitman. Id. Brinkman told the agent where to find Kane and how to beat him to ensure payment of an alleged $5,000 debt. The agent later notified Brinkman that he had collected the debt. Brinkman was arrested after attempting to pay the "hitman" for his services. Id.
63
In assessing the role of the confidential informant in Brinkman, this court concluded that the informant's participation in the case did not warrant disclosure of his identity:
64
We face, however, a situation in which Nails, the informant, falls somewhere in between the role of a mere tipster and that of a participant in the offense. That Nails was more than a "mere tipster" is clear from the fact that he had two important discussions with Brinkman, established that Brinkman wanted a hit man, and introduced Brinkman to Hartman. On the other hand, it is equally inappropriate to label Nails a "participant" in the offense; the crux of the government's case came from the later, recorded discussions between Hartman and Brinkman, to which Nails was not a party.
65
739 F.2d at 981. In the case at hand, the confidential informant was also more than a tipster yet less than a participant in the offense. The informant alerted the F.B.I. to the defendant's public announcement that he wished to sell his rig and its cargo. Furthermore, the informant introduced Price to government agents posing as buyers. However, the key negotiations for the sale of the truck and its contents were solely between the defendant and agent Zacur. Moreover, the informant could hardly be labeled a participant in the illegal conversion since he was not present and did not witness the actual criminal occurrence. Following Brinkman then, this court should decline to require release of the informant's name.
66
Price does not cite Brinkman in his brief. The majority acknowledges the existence of the decision in footnote six but does not attempt to distinguish the case. I believe Brinkman is on point and controlling. Critics may assert that the present case is distinguishable because entrapment and duress are alleged here but were not issues in the Brinkman case. However, this is a distinction without a difference. Price has merely baldly asserted that he was entrapped. More than mere allegations must be forthcoming to force the release of a confidential informant's name. See United States v. Smith, 780 F.2d 1102, 1107 (4th Cir.1985) (en banc) (court requires more than mere speculation on usefulness of disclosure of informant's identity). Otherwise, the privilege of confidentiality would be lost automatically upon the inclusion of certain statements in a complaint.
67
Furthermore, although he articulated more facts to support his defense of duress, Price failed to convince the trial court that he was forced into the illegal sale. The defendant's testimony on the issue was inherently suspicious. He admitted that he never saw a weapon displayed by men who allegedly threatened him. Price never mentioned threats to his trucking dispatcher and gave inconsistent testimony over whether the threats came before or after his last call to the dispatcher.3 Furthermore, although he stated that he was threatened there earlier, Price returned to Rip's bar after traveling to another bar to play pool and shoot darts. This behavior is inconsistent with the assertion that Price felt his life was threatened at Rip's.
68
The district court had the opportunity to judge the credibility of all the witnesses including the defendant. Judge Ramsey chose not to believe Price's allegations of duress and entrapment. The informant's testimony on these issues was therefore not required. This court, working from a cold record, should not attempt to second guess the trier of fact. Clearly, the record demonstrates that the district court did not abuse its discretion in refusing to require disclosure of the informant's identity following bald allegations or allegations supported by conflicting testimony and behavior that belies the defendant's assertions.4
69
In conclusion, I restate my belief that Roviaro and McLawhorn are distinguishable and do not compel disclosure of the informant's identity when he does not set up or participate in the crime. Instead, Brinkman dictates that when an informant's involvement does not rise to the level of participating in a crime, his name need not be revealed. I believe the majority thus erred in reversing the trial court's decision to keep this information confidential. I therefore respectfully dissent.
1
As discussed infra, no government witness testified from personal knowledge that Price was, in fact, the unidentified person involved in the telephone conversation
2
Weaver also testified that after he returned to Rip's he saw Price in his truck at approximately 5:15 p.m. Price testified that he could not have been in his truck at 5:15 p.m. because he remained at the pool hall until approximately 6:45 p.m
3
It is not possible to tell from the record whether some inconsistencies in the testimony of Price, Zacur and Friel are due to lapses of memory, lapses of credibility, or some other factor such as Price's admitted intoxication at the time these events occurred
4
As they drove, Rovario asked the informant about money the latter owed him and told the informant he had brought "three pieces this time." Rovario directed the informant where to drive, and told him where to stop. Once the car stopped, the officer watched from the trunk as Rovario walked to a tree and picked up a package. Rovario gave the package to the informant, saying "Here it is, "and "I'll call you in a couple of days." Id. at 56-57, 77 S.Ct. at 625-626
5
In the case at bar, the crabbers were allegedly paid $1200 for their participation in Price's arrest. Brief of Appellant at 11
6
In Brinkman, we found that the informant in that case was "somewhere in between the role of a mere tipster and that of a participant in the offense." 739 F.2d at 981. The informant ha[d] had two important conversations with the defendant, had "established that [the defendant] wanted a hit man," and had introduced the defendant to government agents. However, the informant was not a party to the discussions which formed the "crux of the government's case." He "was not a witness or a participant in the crime with which the Defendant ha[d] been charged." Id. The district court found that under these circumstances, the government's interest in maintaining the informant's anonymity outweighed the defendant's interest in disclosure of the informant's identity. This court held that the district court did not abuse its discretion. Id
7
McLawhorn involved a federal habeas corpus challenge to a state criminal conviction. The court reversed the district court's denial of relief and remanded the case to the district court with instructions that the defendant should be released from custody unless the state chose to retry him within a reasonable period of time. Id. at 8
8
The identity of the informant's partner has also been shielded from disclosure
9
This is especially true in this case where the informant and his undisclosed companion are the only witnesses who can testify as to whether Price was involved in the telephone conversation overheard by Agent Nelson, and where Price and a disinterested witness testified that Price could not have been at Rip's at the time the call was made
10
In light of our disposition of this issue, we need not reach the question of whether sufficient evidence was presented at trial to sustain a conviction under 18 U.S.C. Sec. 660. We simply note, to aid the parties and the district court upon retrial, that the statute concerns conversion of the "moneys, funds, credits, securities, property, or assets" of a common carrier. To the extent the government wishes to establish conversion of the meat, as opposed to conversion of the tractor-trailer, the government must present evidence to show that the meat falls within the terms of the statute
11
Because the trial in this case was not a jury trial and retrial will therefore most likely be before the same trier of fact--the original district judge--a full retrial may not be necessary. The district judge may, in his discretion, limit the scope of evidence presented on retrial in a manner which allows the defendant to fully pursue the significance of the informant's role in the incident and at the same time does not engage the court in needless repetition of matters fully developed during the first trial
It may, however, be the case that the unavailability of the informant as a witness was a material factor in Price's decision not to exercise his right to a jury trial. If so, Price must be afforded the option to exercise that right upon retrial.
1
18 U.S.C. Sec. 894(a)(1)
2
18 U.S.C. Sec. 1952
3
Joint Appendix at 143-44
4
It is within a trial court's discretion to determine whether the testimony of an informer is likely to be relevant to the trial of an accused. Roviaro, 353 U.S. at 61 n. 9, 77 S. Ct. at 628 n. 9; Brinkman, 739 F.2d at 980-81; United States v. Soles, 482 F.2d 105, 109 (2nd Cir.1973). Furthermore, disclosure is not required unless the trial court determines that an informer's testimony is highly relevant. Smith, 780 F.2d 1102, 1107 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1586072/ | 33 So.3d 44 (2010)
TODD
v.
BEARDSLEY.
No. 2D09-1828.
District Court of Appeal of Florida, Second District.
April 30, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586099/ | 176 So.2d 94 (1965)
BOULEVARD NATIONAL BANK OF MIAMI, a national banking corporation, Petitioner,
v.
AIR METAL INDUSTRIES, INC., a Florida corporation, Rosalie A. Fink, Morris Sobel, and Tompkins-Beckwith, Inc., a Florida corporation, Respondents.
No. 34158.
Supreme Court of Florida.
June 9, 1965.
*95 Joseph M. Fitzgerald and Thomas A. Horkan, Jr., Miami, for petitioner.
Moore & Moore and R. Earl Welbaum, Miami, for respondents.
WILLIS, Circuit Judge.
The petitioner bank was plaintiff in the trial court where it sustained an adverse summary judgment, and was appellant in the District Court of Appeal, Third District, which affirmed. Case No. 64-448, opinion filed Feb. 2, 1965. The District Court of Appeal has certified to this Court, pursuant to Art. V, Sec. 4(2), Constitution of Florida, F.S.A., that its decision in this case "`passes upon a question of great public interest' because it affects the rights of many members of the public in an important field of the commercial law of this State".
The issuance of this certificate serves to give this court jurisdiction to review the decision.[1] Accordingly, we have granted certiorari.
The facts involved are not in material dispute and both contending parties moved for summary judgment in the trial court. The suit commenced as an action at law by the plaintiff bank against several defendants, including the respondent Tompkins-Beckwith, Inc., in whose favor the summary final judgment involved here was rendered.
Tompkins-Beckwith was the contractor on a construction project which had entered into a subcontract with a division of Air Metal Industries, Inc. Air Metal procured American Fire and Casualty Company to be surety on certain bonds in connection with contracts it was performing for Tompkins-Beckwith and others. As security for such bonds, Air Metal executed, on January 3, 1962, a "Contractor's General Agreement of Indemnity" which contains an assignment to American Fire of "all monthly, final or other estimates and retained percentages; pertaining to or arising out of or in connection with any contracts performed or being performed or to be performed, such assignment to be in full force and effect as of the *96 date hereof, in the event of default in the performance of any contract as to which the surety has issued, or shall issue, any [surety bonds or undertakings]".
On November 26, 1962, the petitioner bank lent money to Air Metal and to secure the loans Air Metal purported to assign to the bank certain accounts receivable it had with Tompkins-Beckwith which arose out of subcontracts being done for that contractor.
In June, 1963 Air Metal defaulted on various contracts bonded by American Fire. On July 1, 1963 American Fire served formal notice on Tompkins-Beckwith of Air Metal's assignment. Tompkins-Beckwith acknowledged the assignment and agreed to pay. On August 12, 1963, the petitioner bank notified Tompkins-Beckwith of its assignment and claim thereunder. The claim was not recognized and on September 26, 1963, this action was filed in the trial court. On October 9, 1963 Tompkins-Beckwith paid all remaining funds which had accrued to Air Metal to American Fire.
The trial judge concluded that the proper rule to be applied is that as between assignees of accounts receivable the assignee who first gives notice of his claim to the debtor is preferred and has prior rights. Summary judgment in favor of Tompkins-Beckwith was thus based on the notice given by American Fire to Tompkins-Beckwith on July 1, 1963 which was held to render that claim superior to that of the bank which did not give notice until August 12, 1963.
The District Court of Appeal affirmed, approving the rule adopted by the trial court, referred to as the "English rule", in preference to that urged by the appellant bank and called the "American rule". The latter rule may be stated as holding that as between assignees of the same accounts receivable and in the absence of facts giving rise to an estoppel, the earlier assignment has priority, even without notice to the debtor.
The District Court of Appeal stated that it was "not aware of any appellate court decision in the State of Florida adopting [the rule applied by the trial court]". Since this is a case of first impression, the court deemed it a proper one for certification as passing on a question of great public interest.
It based its affirmance partly upon the announcement of such rule in a Florida case[2] decided by a federal court of appeals. Also it found that the existence of the English rule is historically sustainable, and that "its application is justified from the fact that the legislature of this State has seen fit to make use, although of a different nature, of notice as a basis for the priority of assignments of accounts receivable."[3] In addition to being in keeping with the expressed policy of the State, it was said that the approved rule "approaches more nearly the principle of fair play inherent in our law than would a rule which allows secret or unknown assignments to have priority."
The "question" which was passed upon by the certifying court is whether the law of Florida requires recognition of the so-called "English" rule or "American" rule of priority between assignees of successive assignments of an account receivable or other similar chose in action. Stated in its simplest form, the American rule would give priority to the assignee first in point of time of assignment, while the English rule would give preference to the assignment of which the debtor was first given notice. Both rules presuppose the absence of any estoppel or other special equities in favor of or against either assignee. The *97 English rule giving priority to the assignee first giving notice to the debtor is specifically qualified as applying "unless he takes a later assignment with notice of a previous one or without a valuable consideration". 31 A.L.R. 876; 110 A.L.R. 774; 6 Am.Jur. (2d) 297 (Assignments, Sec. 114). The American rule giving the first assignee in point of time the preference is applicable only when the equities are equal between the contending assignees, and if a subsequent assignee has a stronger equity than an earlier one, he would prevail. State ex rel. Crane Co. v. Stokke, 65 S.D. 207, (1937) 272 N.W. 811, 110 A.L.R. 761; and annotation at p. 777 of 110 A.L.R.
In the case here there are no special equities and no rights, such as subrogation, which would arise outside of the assignments. Also we regard that any conditions precedent to the assignments, which the parties had expressly or impliedly stipulated, have occurred.[4] In this posture, we are thus free to adjudicate which of these two rules, described as being "clearly defined and irreconcilable"[5] is in harmony with our jurisprudence.
The American rule for which petitioner contends is based upon the reasoning that an account or other chose in action may be assigned at will by the owner; that notice to the debtor is not essential to complete the assignment; and that when such assignment is made the property rights become vested in the assignee so that the assignor no longer has any interest in the account or chose which he may subsequently assign to another. Salem Trust Co. v. Manufacturers Finance Co., 1924, 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628, 31 A.L.R. 867; see also cases digested 31 A.L.R. 879-882 and 110 A.L.R. 775-778.
The English rule has its origin in pronouncements made in Dearle v. Hall (1823) 3 Russ. Ch. 1, 38 Eng. Reprint, 486, 10 Eng. Rul.Cas. 478. Subsequent cases in England considered the question and it seems to have become the settled rule in England. See discussion of the English treatment of question in Justice Butler's opinion in Salem Trust Co. v. Manufacturer's Finance Co., supra. In the Dearle v. Hall case Sir Thomas Plumer, master of the rolls, cited the 1749 case of Ryall v. Rowles, 1 Ves. Sr. 348, 27 Eng. Reprint, 1074, in which it had been held that in the case of a chose in action an assignee must do everything toward having possession which the subject admits and must do that which is tantamount to obtaining possession by placing every person who has an equitable or legal interest in the matter under an obligation to treat it as the assignee's property. It was stated:
"For this purpose you must give notice to the legal holder of the fund; in the case of a debt, for instance, notice tantamount to possession. If you omit to the debtor is, for many purposes, to give that notice you are guilty of the same degree and species of neglect as he who leaves a personal chattel, to which he has acquired a title, in the actual possession, and, under the absolute control, of another person."
It is undoubted that the creditor of an account receivable or other similar chose in action arising out of contract may assign it to another so that the assignee may sue on it in his own name and make recovery.[6] Formal requisites of such an assignment are not prescribed by statute and it may be accomplished by parol, by instrument in *98 writing, or other mode, such as delivery of evidences of the debt, as may demonstrate an intent to transfer and an acceptance of it.[7] In an early Florida case[8] it was held that notice to the debtor was not essential to effect an assignment of an open account. In that case the owners of the account in question made an assignment of all of their properties, including accounts receivable, to a trustee for the benefit of creditors. The debtor, Whitlock, was not notified of the assignment before writs of garnishment and attachment were served on him by one of the assignor's creditors. In a suit by the trustee against Whitlock he defended on the ground that the writs prevailed over the trustee's rights. The trial judge directed a verdict for Whitlock and in so doing held that notice to the debtor was essential to effect the assignment. The Supreme Court reversed for a new trial. However, the court deemed that there did exist an issue to be resolved by the jury, namely whether or not there had been a "delivery" of the choses in action to the trustee so as to complete the assignment. The Court discussed the question of delivery and observed that at "common law, a bargain and sale of personal property without delivery transfers the legal property in goods, but where the possession remains in the vendor unexplained, it is fraudulent as to creditors."
It was further said:
"But assuming delivery of the `open account' declared on in the case by the assignors to the assignee was necessary to the perfect vesting of title of the same in the assignee, what kind of delivery would he make? and what would be required of him? It would seem to us, that, in ordinary cases delivering the evidence of indebtedness would be the most conclusive mode of giving possession."
* * * * * *
"This we deem the most conclusive mode, but whether possession is given or not is a question of fact, to be determined by the jury."
Therefore, the case cited above seems to have regarded that a delivery of the chose in action was necessary to complete the assignment.
It seems to be generally agreed that notice to a debtor of an assignment is necessary to impose on the debtor the duty of payment to the assignee, and that if before receiving such notice he pays the debt to the assignor, or to a subsequent assignee, he will be discharged from the debt. 6 Am.Jur.2d 278 (Assignments, Sec. 96). To regard the debtor as a total non-participant in the assignment by the creditor of his interests to another is to deny the obvious. An account receivable is only the right to receive payment of a debt which ultimately must be done by the act of the debtor. For the assignee to acquire the right to stand in the shoes of the assigning creditor he must acquire some "delivery" or "possession" of the debt constituting a means of clearly establishing his right to collect. The very nature of an account receivable renders "delivery" and "possession" matters very different and more difficult than in the case of tangible personalty and negotiable instruments which are readily capable of physical handling and holding. However, the very principles which render a sale of personal property with possession remaining in the vendor unexplained fraudulent and void as to creditors applies with equal urgency to choses in action which are the subject of assignment. It would seem to follow that the mere private dealing between the creditor and his assignee unaccompanied by any manifestations discernable to others having or considering the acquiring of an interest in the account would not meet the requirement of delivery and acceptance of possession which is essential to the consummation of the assignment. Proper notice to the debtor of the assignment is a manifestation of such delivery. *99 It fixes the accountability of the debtor to the assignee instead of the assignor and enables all involved to deal more safely.
We do not hold that notice to the debtor is the only method of effecting a delivery of possession of the account so as to put subsequent interests on notice of a prior assignment. The English rule itself does not apply to those who have notice of an earlier assignment. The American rule is not in harmony with the concepts expressed. It seems to be based largely upon the doctrine of caveat emptor which has a proper field of operation, but has many exceptions based on equitable considerations. It also seems to regard the commercial transfers of accounts as being the exclusive concern of the owner and assignee and that the assignee has no responsibility for the acts of the assignor with whom he leaves all of the indicia of ownership of the account. This view does not find support in the statute or decisional law of this State.
The district court of appeal did not specifically hold that the English rule was part of the common law of England as of July 4, 1776 so as to be part of our law under Sec. 2.01 F.S., F.S.A. It did say that it is "historically sustainable". After examining the authorities we conclude that although the rule is not shown to have been specifically expressed until pronounced in decisions subsequent to July 4, 1776, the principles and concepts from which it was largely drawn had found approval and application in English courts prior to that time. In the Knudson case[9] the federal court of appeals stated that under the common law assignments were perfected by giving actual notice to the debtor. At the least, we do not find this rule to be repugnant to the common law, and we do not find any support there for the so-called American rule. In two other fifth circuit cases[10] that court has recognized as the prevailing rule in Florida that "as between successive assignments of the same right the assignee first giving notice prevails".
With regard to Chap. 524, F.S., F.S.A. we examine it only to determine if it would require a disposition different from the judgment rendered in the trial court. We find, as did the district court of appeal, that the statute recognizes the principle of notice as an important element in the enforcement of assignments and such is consistent with the English rule. Even if the view of the Knudsen case, supra, should prevail, which view we now neither approve nor reject, to the effect that a filing under the statute is a mandatory, exclusive method of perfecting assignments of accounts receivable, the petitioner bank could not recover from the respondent debtor, because the bank made no filing under the statute and the debtor has no duty of filing.
We thus find that the so-called English rule which the trial and appellant court approved and applied is harmonious with our jurisprudence, whereas the so-called American rule is not. We concur in the decision of the district court of appeal in this case.
The writ of certiorari issued in this case is discharged.
DREW, C.J., and ROBERTS, CALDWELL and ERVIN, JJ., concur.
NOTES
[1] Zirin Enterprises v. Charles Pfizer & Co., Fla. 1961, 128 So.2d 594.
[2] Town of River Junction v. Maryland Casualty Co., CCA5, 110 F.2d 278 (1940).
[3] See Chap. 524, Fla. Stat., F.S.A., which provides a means of recording with the Secretary of State of certain assignments of accounts receivable and rendering such assignments "protected". Sec. 524.06 specifically renders the rights of an assignee against the account debtor to be subject to any good faith dealings by such debtor until he receives notice in writing of the particular assignment.
[4] American Fire's assignment provided for it to be activated by any default by the assignor in performance of or failure to pay for labor or materials in connection with any contract on which the assignee was surety. The bank's assignment was for the purpose of giving security for payment of a loan and thus would not be fully available unless there was a default in payment of the loan.
[5] 6 Am.Jur.2d 296.
[6] Spears v. West Coast Builders Supply Co., 101 Fla. 980, 133 So. 97; Robinson v. Springfield Co., 21 Fla. 203; Smith v. Westcott, 34 Fla. 430, 16 So. 332; Martyn v. Arnold, 36 Fla. 446, 18 So. 791. See also Sammis v. L'Engle, 19 Fla. 800; Richardson v. Holman, 160 Fla. 65, 33 So.2d 641.
[7] 3 Fla.Jur. 143, 144 (Assignments, Sees. 14 and 16); Cotten v. Williams, 1 Fla. 37; Tunno v. Robert, 16 Fla. 738.
[8] Walters v. Whitlock (1860) 9 Fla. 86.
[9] Miami National Bank v. Knudsen, CCA 5th; 300 F.2d 289 (1962). In this case it was held, one judge dissenting, that F.S. Chap. 524, F.S.A. established a mandatory, exclusive method of perfecting assignments of accounts receivable. We make no comment upon this ruling as neither assignee in the case sub judice attempted to come under the statute.
[10] Town of River Junction v. Maryland Casualty Co., CCA5, 110 F.2d 278 (1940); Coconut Grove Exchange Bank v. New Amsterdam Casualty Co., CCA5, 149 F.2d 73, 78 (1945). Both of these cases involved assignments of accounts but they also had other factors than notice to the debtor upon which their dispositions were based. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586128/ | 33 So.3d 551 (2010)
Effie Darlene ADAMS (Sofikitis), Appellant
v.
Mitchell Steven JOHNSON and Karen Elizabeth Johnson, Appellees.
No. 2009-CA-00803-COA.
Court of Appeals of Mississippi.
April 27, 2010.
James B. Sykes III, attorney for appellant.
David L. Morrow Jr., John R. Elliott Jr., Brendan C. Sartin, Brandon, Lindsey A. Hill, attorneys for appellees.
Before LEE, P.J., IRVING and GRIFFIS, JJ.
IRVING, J., for the Court:
¶ 1. This appeal concerns the custody of two minor children, Sarah and Jane *552 Smith.[1] In May 2007, custody of Sarah and Jane was given to John and Cynthia Smith, the children's paternal grandparents. The Smiths were awarded custody against the wishes of Kristin Thompson, the children's natural mother. In May 2008, Thompson filed a motion requesting that custody of the children be returned to her. The Copiah County Chancery Court denied the motion, finding that an adverse change in circumstances affecting the children had not occurred. Feeling aggrieved, Thompson appeals and asserts that the chancellor applied an erroneous legal standard in denying Thompson's motion.
¶ 2. Finding no reversible error, we affirm the judgment of the chancery court.
FACTS
¶ 3. The Smiths were granted custody of their grandchildren in 2007 after Thompson was indicted on several felony drug charges. In order to provide a factual backdrop for this case, we quote at length from the chancellor's 2007 judgment wherein the Smiths were granted custody:
The evidence presented clearly shows that the [Smiths] have been active in the children's lives since their respective births. In 2000, the [Smiths] had custody of the children at the request of [Thompson] due to [Thompson]'s inability to care for the children at that time. Thereafter, [Thompson] showed stability, married a gentleman who was enlisted in the military, and otherwise showed responsible behavior; therefore, the [Smiths] returned custody of the children to [Thompson] at [Thompson]'s request. Subsequently, [Thompson] and the subject husband divorced and, thereafter, [Thompson] moved on several occasions.
In 2005, [Thompson] was indicted by a grand jury in Rankin County, Mississippi[,] on three (3) felony counts involving controlled substances. In November 2005, the families agreed that the [Smiths] should take custody of the children. To date, the children have been in the [Smiths]' custody.
The [Smiths] do not desire to return custody of the children to [Thompson], as they believe [Thompson] is unstable and unfit. However, [Thompson] argues that she has changed and is now stable and fit to care for the children. The laws in Mississippi favor a natural parent having custody of her children.
The Guardian Ad Litem's report was introduced as evidence. Some of the issues raised within the report involve [Thompson]'s failure to adequately clean, feed, supervise, and bathe the children. [Thompson] denies these allegations. One teacher ... reported that she took food from the teachers' lounge on a regular basis and gave it to [Sarah]. This evidence tips the scales in favor of believing that, indeed, [Thompson] did not clean, feed, supervise, and bathe the children, as [the teacher] has no reason to fabricate such a story.
[Thompson]'s immorality has been made an issue. The evidence shows semi-nude and other risqué photographs of [Thompson] on her "myspace.com" profile. Also, the children are on the same web-page as these photographs of [Thompson]. Posting photographs of the children on a web-page shared with semi-nude and risqué photographs shows, at a minimum, poor judgment on [Thompson]'s behalf. Numerous people use the internet to view nude photographs, *553 and having pictures of the children on such a site invites the possibility of sexual predators viewing photographs of the children and puts the children in danger. [Thompson] could have removed the semi-nude and other risqué photographs, but did not until told to do so by her attorney. [Thompson] did not see anything inappropriate with her "myspace.com" profile.
[Thompson] engaged in sexual activity outside of marriage which resulted in her becoming pregnant sometime last year. [Sarah] has gained knowledge and understanding of a sexual device, beyond the scope of what a seven (7) to ten (10) year old should know. This sexual device was found at [Thompson]'s house in a roommate's room. [Thompson] chose the roommate, and thereby chose someone who would have such a device in close proximity to children. Also, the evidence shows that the roommate apparently had a discussion about the sexual device with [Sarah].
Evidence further shows that the children have seen [Thompson] sleeping in the same bed with men and/or women. This [c]ourt is not persuaded that these men and/or women were [Thompson]'s relatives, as the children should be able to identify relatives, yet when speaking with the Guardian Ad Litem, the children simply referred to these individuals as "men" or "women."
* * *
The children told the Guardian Ad Litem, at a time when they were ages eight (8) and nine (9) respectively, that they can distinguish between cigarettes and marijuana. Regardless of whether or not the children can actually make such a distinction, the fact that they are exposed to an environment that allows them to believe this is a "smoking gun." Looking at the numerous drug screens, there is no doubt that two are "positive." [Thompson] has completed a drug rehabilitation program and wants the [c]ourt to believe that she has relapsed only once, such relapse occurring in August 2006. However, [Thompson] has a three (3) count indictment involving controlled substances and stands to go to jail for a potential ninety (90) years. [Thompson]'s position simply does not make sense.
* * *
Sex, drugs, and basic care needs are the crux of the [Smiths]' concerns. In order for the [Smiths] to be awarded legal and physical custody of the children, this [c]ourt must find ... that "both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child." The pattern of facts show[s] neglect of the children's welfare. Also, the children have been exposed to matters of a sexual and drug nature that are genuine, serious dangers to the children.
* * *
This [c]ourt finds that the children have been residing with the [Smiths] since November 2005, and that the [Smiths] have provided a wholesome and stable environment. Therefore, given the totality of the evidence and circumstances, legal and physical custody of [Sarah] and [Jane] is hereby awarded unto the [Smiths], same being in the best interests of the children.
There is nothing in the record to indicate that the Mississippi Department of Human Services (DHS) was involved with the removal of the children from [Thompson]'s custody in 2007.
¶ 4. About a year after the chancellor granted the Smiths custody of the children, *554 Thompson filed a motion alleging that a material change in circumstances had occurred. Namely, she provided evidence that she had improved her life and that many of the problems noted by the chancellor in 2007 had been corrected. Nonetheless, the chancellor declined to modify the 2007 custody order, finding in pertinent part:
In some instances, a natural[-]parent presumption exists.[2] The natural[-]parent presumption presumes that the best interest of the child will be preserved by remaining with the natural parent. The key language regarding the natural[-]parent presumption is that the child should "remain" with the natural parent. In this case, the children are currently not in [Thompson]'s custody and thus cannot "remain" with the natural parent. The natural[-]parent presumption is inapplicable to this case.... In this case, the applicable standard of proof is a material change in circumstances in the custodial home which adversely affects the children, such that it wouldn't be in the children's best interest[s] that custody be changed.
[Thompson] testified that she has cleaned up her lifestyle. Evidence presented shows that [Thompson] is no longer using drugs, has removed the "myspace.com" pictures referenced in the May 2007 [j]udgment, has a good job, is making acceptable progress in the Pretrial Intervention Program, regularly attends church, has rededicated her life to Christ and been baptized, and has a nice, clean home and no roommate. However, [Thompson] is pregnant out of wedlock. [Thompson]'s family, friends, and neighbors testified that they are willing to assist her if she were to receive custody of the children.
[Cynthia] was diagnosed with breast cancer. Since her diagnosis, she has undergone surgery and chemotherapy treatments. [Cynthia]'s cancer is now in remission. There is no indication that her cancer has affected her ability to adequately care for the children. Testimony shows that the children are doing well in school and are happy.
[John] was laid off from his job for approximately six (6) weeks. [John] has been rehired and is earning wages equivalent to those he received prior to his being laid off. Since March 2008, [John] has consumed twelve (12) beers, which does not offend the sensibility of the [c]ourt. The [Smiths]' grandson recently passed away[,] and both [John] and [Cynthia] are grieving.
[Thompson] must show a negative change in the custodial home, rather than a positive change in the non-custodial home. Although the [c]ourt commends [Thompson] for the positive change[s] in her behavior, no facts exist to suggest a material change in the custodial home which adversely affects the children. In this case, the standard of proof has not been met.
After discussing the child-support obligations of Thompson and David Smith, the children's natural father, the chancery court ordered the DHS "to immediately release and remit to [the Smiths] any and all child[-]support monies they are holding in their account...." During the hearing on Thompson's motion to modify custody, the chancellor noted that Thompson had *555 not consented to the 2007 transfer of custody to the Smiths.
¶ 5. There is no dispute as to the facts of this case; that is to say, the Smiths do not contend that Thompson is still unfit to raise her children. The only matter at issue is whether the correct legal standard was applied during the 2008 proceedings.
¶ 6. Any additional facts will be presented during our analysis and discussion of the issue.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶ 7. In reviewing the decision of a chancellor, we "will not disturb the [factual] findings of [the] chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Wilburn v. Wilburn, 991 So.2d 1185, 1190 (¶ 10) (Miss.2008) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002)). However, when reviewing a question of law, we "[apply] a de novo standard of review." Id. (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002)). The only question before this Court concerns the proper legal standard that should have been applied in ruling on Thompson's motion to modify custody; therefore, we will conduct a de novo review.
¶ 8. This Court has been unable to locate a Mississippi case dealing with the particular issue before us. Namely, once a third party has been granted custody over a natural parent due to the natural parent's unfitness to rear a child, what standard applies if and when the natural parent attempts to regain custody of the child? Thompson urges this Court to find that the natural-parent presumption mentioned by the chancellor applies. By contrast, the Smiths ask us to find that the holding of Barnett v. Oathout, 883 So.2d 563 (Miss. 2004) applies, as the chancellor found.
¶ 9. In Barnett, our supreme court found that when a parent has lost custody of a child due to the DHS's intervention, the proper legal standard that applies when the parent seeks to regain custody of the child is "first, whether ... there was a substantial change of circumstances which adversely affected the children, where it would be in the children's best interest[s] that custody be changed; and second, whether [the parent] showed that he had eliminated the behavior that caused the children to be taken in the first place." Id. at 569 (¶ 12). However, the Barnett court stated that the holding in that case was limited to the particular facts of a DHS intervention: "The correct legal standard, applicable in DHS cases, was used by the chancellor...." Id. at 573 (¶ 29) (emphasis added). In the present case, there is no indication that the DHS was ever involved. However, we conclude that the holding of Barnett is applicable in a case such as the one before this Court, even though the DHS was not involved.
¶ 10. Regardless of the fact that the DHS was not actually involved in the case before this Court, the same showing was made regarding Thompson; that is to say, Thompson was shown to be unfit to rear her children. Her standing is exactly the same as a natural parent whose parenting draws the attention of the DHS. In fact, it may be that the only reason the DHS did not become involved in the present case is because Thompson did not have physical custody of the children at the time of her inappropriate behavior and lifestyle. Therefore, we find that the Barnett standard was properly applied in the present case. That is to say, Thompson could only regain custody of her children by showing that there was a material change in circumstances in the Smiths' home that adversely *556 affected the children. Thompson has made no allegation that the chancellor overlooked such a change; rather, her sole contention is that the chancellor should have presumed that custody should be placed with Thompson as a natural parent. As we have discussed, such is not the case.
¶ 11. Therefore, this contention of error is without merit. The judgment of the chancery court is affirmed.
¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF COPIAH COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
NOTES
[1] Names have been changed throughout this opinion to protect the identity of the minor children.
[2] Mississippi law provides a presumption that a natural parent is favored for custody of a child over any third party. Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008). However, the presumption cannot be used by a natural parent who willingly relinquishes custody of a child. Grant v. Martin, 757 So.2d 264, 266 (¶ 10) (Miss.2000). The chancellor in the present case noted that Thompson contested the transfer of custody to the Smiths. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586139/ | 115 Mich. App. 609 (1982)
321 N.W.2d 744
ELMORE
v.
ELLIS
Docket No. 53599.
Michigan Court of Appeals.
Decided April 23, 1982.
Vicky W. Buckfire, for defendant on appeal.
Before: T.M. BURNS, P.J., and M.F. CAVANAGH and R.A. BENSON,[*] JJ.
PER CURIAM.
Following a jury trial and verdict in favor of plaintiff in her paternity action against defendant, the trial court entered a judgment and order of filiation against defendant. After denying a motion for new trial, the court entered an amended order of filiation wherein defendant was ordered to pay $30 per week support for the parties' minor child and to pay the cost of plaintiff's confinement in connection with the birth of the child. After a second motion for new trial was denied, defendant filed an application for delayed appeal which was granted by this Court.
Defendant's appeal arises out of the trial court's denial of defendant's request that a defense witness not included in the witness list pursuant to GCR 1963, 301.10 be allowed to testify. Defendant first contends that GCR 1963, 301.10 does not *611 apply to proceedings under the Michigan Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., and second, that if GCR 1963, 301.10 does aply in paternity proceedings, the trial court erred in its exercise of discretion by excluding the testimony of the defendant's witness.
The purpose of the Michigan Paternity Act is to provide support for children born out of wedlock. Tuer v Niedoliwka, 92 Mich App 694; 285 NW2d 424 (1979), Smith v Robbins, 91 Mich App 284; 283 NW2d 725 (1979), Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976).
The nature of a paternity proceeding is both civil and criminal. These proceedings are "quasi-criminal", affording the defendant some criminal defendants' rights such as the right to a jury trial, the right to appointed counsel, and protection against double jeopardy, but a paternity proceeding defendant is not extended the full panoply of criminal defendants' rights. Smith v Robbins, supra.
Defendant contends that § 5 of the Paternity Act is in direct conflict with GCR 1963, 301.10. GCR 1963, 301.10 reads as follows:
".10 Notice of Pretrial and Witness List. [GCR 301.10 applies in Wayne County only.] Notice of pretrial conference shall be forwarded by the court to all counsel of record at least 6 weeks prior to the date of such conference. Within 10 days after receipt of such notice, counsel shall exchange lists of all witnesses to be called at the trial. No witness may be called at the trial of the case unless listed in such exchange of witnesses, except by leave granted upon a showing of good cause."
MCL 722.715; MSA 25.495 reads as follows:
"Sec. 5. (a) Both the mother and the alleged father *612 shall be competent to testify, but the alleged father shall not be compelled to testify, and if either gives evidence he or she shall be subject to cross examination. * * *"
Defendant asserts that any conflict between these two provisions must be resolved in favor of the Paternity Act. He relies upon this Court's opinion in Pridemore v Williams, 90 Mich App 483; 282 NW2d 363 (1979), where this Court held that a putative father may not be compelled to answer interrogatories propounded by the plaintiff-mother because, pursuant to GCR 1963, 730.1, this would be tantamount to compelling defendant to testify against himself, which is expressly forbidden by § 5 of the Paternity Act. This Court in Pridemore held that where there is a direct conflict between the General Court Rules and the Paternity Act, the latter controls and that the General Court Rules governing the submission and answering of interrogatories, GCR 1963, 309 and 313, respectively, were inapplicable in paternity actions. Pridemore, supra, 488.
In criminal cases, the defendant must file a notice of alibi and a list of alibi witnesses. MCL 768.20; MSA 28.1043. A paternity defendant is not subject to a similar requirement. Skidmore v Czapiga, 82 Mich App 689; 267 NW2d 150 (1978), lv den 403 Mich 810 (1978).
We are persuaded, however, that neither of the above cases compels a conclusion that GCR 1963, 301.10 conflicts with the Paternity Act. GCR 1963, 301.10 is directed to counsel and requires counsel to exchange a list of all witnesses to be called at trial. The Paternity Act contains no conflicting provisions. Pridemore v Williams, supra. Furthermore, GCR 301.10 does not conflict with the "alibi" statute. The fact that the requirements of GCR *613 1963, 301.10 may conflict with the intended results of this Court's decision in Skidmore v Dzapiga, supra, is of no consequence. The Supreme Court is charged with the responsibility of establishing the General Court Rules. Const 1963, art 6, § 4. Under GCR 1963, 730.1, the Supreme Court has determined that the General Court Rules apply to paternity proceedings unless they conflict with the provisions of the Paternity Act. As noted above, no conflict exists between GCR 1963, 301.10 and the Paternity Act. Therefore, we hold that GCR 1963, 301.10 applies to paternity proceedings.
Despite our resolution of the first issue, we are persuaded that the trial court's refusal to permit the witness to testify was error. A trial court's decision whether to permit a witness to testify where a party fails to comply with GCR 1963, 301.10 is largely a matter of discretion. Banks v Wittenberg, 82 Mich App 274, 277; 266 NW2d 788 (1978), Dehring v Northern Michigan Exploration Co, Inc, 104 Mich App 300, 321; 304 NW2d 560 (1981).
The plaintiff presented the testimony of Mrs. Black, who testified that defendant and plaintiff had engaged in sexual intercourse at the home of Mrs. Black and her former spouse, Robert Ellis. Defendant argued that Mrs. Black fabricated her testimony and that her testimony was a complete surprise. Defendant proposed to call Robert Ellis, the unlisted witness, to rebut Mrs. Black's testimony. Since defendant claimed that the testimony of Mrs. Black was fabricated and came as a surpirse, it was impossible for him to anticipate the need to call Robert Ellis for rebuttal purposes. Trial courts should not be reluctant to allow unlisted witnesses to testify when the interest of justice so requires. This is especially so with regard *614 to rebuttal witnesses. The trial court here easily could have limited the testimony from defendant's proposed witness. We find that the complete preclusion of the proposed testimony on so fundamental a point was an abuse of discretion. Accordingly we reverse and remand.
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/1586241/ | 321 N.W.2d 77 (1982)
212 Neb. 40
SNYDER INDUSTRIES, INC., Appellant,
v.
Wesley V. OTTO and John R. Hanlon, Commissioner of Labor of the State of Nebraska, Appellees.
No. 81-667.
Supreme Court of Nebraska.
June 25, 1982.
*78 Johnston, Barber & Wherry, Lincoln, for appellant.
No appearance for appellee Otto.
Pamela A. Mattson, Lincoln, for appellee Hanlon.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
HASTINGS, Justice.
The appellee Wesley V. Otto was employed by the appellant, Snyder Industries, Inc., from October 29, 1973, to August 5, 1980. Otto was terminated from his employment on this latter date for failing to comply with a policy established by management, which prohibited current employees from associating with former employees. Otto filed a claim for unemployment compensation benefits under the Nebraska Employment Security Law, Neb.Rev.Stat. §§ 48-601 et seq. (Reissue 1978). A claims deputy allowed the claim. On appeal by Snyder to the Nebraska Appeal Tribunal, the decision of the claims deputy was affirmed. In turn, the District Court affirmed the action of the Nebraska Appeal Tribunal. Snyder has appealed to this court, alleging generally that Otto was not entitled to unemployment benefits because his discharge arose out of a knowing, deliberate, and willful violation of the company's rules. We affirm.
According to the testimony of Harvey Schwartz, the personnel manager at Snyder, Otto had been employed as credit and transportation manager. Larry Snyder, the president of the appellant company, testified that Snyder Industries had established *79 a policy prohibiting current employees from associating with ex-employees, especially those persons employed by competitors. This policy had been verbally communicated to the different employees during staff meetings. Snyder testified further that numerous leaks of information from the business to competitors had developed in 1979, and that one of the persons to whom management believed the information had been leaked was a former employee with whom Otto had been associating. However, he did not say that Mr. Otto was one of the suspected leaks.
On August 5, 1980, Mr. Snyder confronted Otto in the latter's office, reminded him of the policy, and informed Otto that he understood that Otto had gone on a vacation with an ex-employee of Snyder's who was now in competition with the company and with whom the company currently was engaged in litigation. Otto admitted that he had in fact taken such a vacation, and in answering a query from Snyder to the effect that did he not think he should be a little more discriminating in the people with whom his associated, Otto in effect told Snyder that he could not tell him who his friends were to be. The upshot of the conversation was that Otto was fired right then and there, and he picked up his personal things and left.
In explaining why the policy was never reduced to writing, Mr. Snyder said that it was a bad situation because the employees became very defensive when told that they could not bowl with an ex-employee or should not associate with an ex-employee who is a competitor. However, he repeated under examination by the hearing examiner that he had absolutely no knowledge of Mr. Otto ever having leaked information to competitors.
Mr. Otto also testified at the hearing before the Nebraska Appeal Tribunal. He admitted that he had knowledge of the company policy. He denied categorically that he had ever dispersed any company information to the ex-employee in question. Otto stated he had known this particular man for 13 years, and, as a matter of fact, it was he who had been instrumental in getting Otto to come to work for Snyder. The particular vacation that the two of them took together had originally been planned from 5 years earlier, but because of an injury to one of Otto's children, it was not taken until 1980. Otto testified that one of the things he and the ex-employee had agreed upon following the latter's departure from Snyder's employment was that there would be no shoptalk between the two. Besides professing absolute loyalty to Snyder, Otto also testified that he did not possess a great amount of knowledge concerning the manufacturing process due to his position as manager of credit and transportation.
There is no question raised on this appeal as to the authority of Snyder to discharge an employee. The only thing which we must decide is whether this can be done without the employee becoming eligible for unemployment compensation benefits. Section 48-628 provides in part that an employee shall be totally disqualified for benefits if the employee discharged was guilty of misconduct connected with his work which was "gross, flagrant, and willful."
The appellee Commissioner of Labor argues that in order for an employee to become ineligible for benefits because of a violation of a work rule, the rule must be reasonable. Although admitting that this precise issue is one of first impression in this jurisdiction, the commissioner bases his argument on the case of Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981). Therein, we defined the term "misconduct" as requiring a "deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees...." (Emphasis supplied.) Id. at 41, 312 N.W.2d at 696.
The Wisconsin court has dealt directly with the rule advocated by the commissioner. In Gregory v. Anderson, 14 Wis.2d 130, 109 N.W.2d 675 (1961), the plaintiff was engaged in the business of servicing vending machines in taverns. His automobile *80 liability insurance had been canceled because of the nature of his business. However, upon instigating and enforcing a rule which prohibited the employees from drinking alcoholic beverages on or off the job, and which was agreed to in writing by Anderson, Gregory was enabled to obtain the necessary insurance. Anderson was arrested for drunken driving some 6 months later. However, with the approval of the insurance company, Anderson was given another chance. Anderson was fired 1 year later after his involvement in an accident in which he admitted that he had been drinking.
In denying Anderson benefits because of misconduct, the court pointed out that the rule itself was probably the decisive factor in inducing the insurance company to provide coverage, and that Anderson was aware of the purpose of the rule. The court said: "In order for violation of a rule laid down by the employer to constitute misconduct under such statute, such rule must be a reasonable one. When such rule relates to conduct of the employee during off-duty hours, it must bear a reasonable relationship to the employer's interests in order to be reasonable." Id. at 137, 109 N.W.2d at 679.
On an appeal under the Employment Security Law, we must consider the cause de novo on the record, which means that it is our duty to retry the issues of fact involved in the findings complained of and reach an independent conclusion thereof. Glionna v. Chizek, 204 Neb. 37, 281 N.W.2d 220 (1979).
If, in fact, Snyder's production secrets were being obtained by competitors, it would be more logical to believe that such was being accomplished by the hiring away of Snyder's employees rather than through the association of current employees with former employees. The rule with which we are here concerned would not prevent such practices. Furthermore, the basis for the rule involved loses all sense of reason when one substitutes husband and wife, or father and son, for the two friends involved in the relationship forbidden here.
We do not believe that a rule which forbids all contact between friends and acquaintances in the interest of preventing "leaks" of production secrets simply on the basis that one or the other is no longer an employee of the company bears a reasonable relationship to the employer's interest. Therefore, one who is discharged for violating such an unreasonable rule is not guilty of "misconduct" as that term is used in the Nebraska Employment Security Law. Accordingly, the judgment of the District Court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645200/ | 994 So.2d 1105 (2008)
KUNSELMAN
v.
McNEIL.
No. SC08-1401.
Supreme Court of Florida.
October 20, 2008.
Decision without published opinion. Mand.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918929/ | 912 So.2d 529 (2005)
Allen P. WADSWORTH, Jr.
v.
Linda W. THOMPSON.
2031047.
Court of Civil Appeals of Alabama.
May 13, 2005.
*531 Isaac P. Espy and W.A. Hopton-Jones, Jr., of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellant.
Alan T. Hargrove, Jr., and R. Mac Freeman, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
MURDOCK, Judge.
This is a boundary-line dispute between two landowners. Allen P. Wadsworth, Jr., appeals from a summary judgment entered in favor of Linda W. Thompson that denied his claim to ownership of the disputed land by adverse possession.
Wadsworth owns approximately 60 acres of farmland ("the Wadsworth farm") in Autauga County. Wadsworth's father moved onto the Wadsworth farm in 1936 and purchased the 60 acres in 1939. Wadsworth has been the sole owner of the Wadsworth farm since his mother died in 1976. Wadsworth's father and his tenants and, later, Wadsworth and his tenants[1] have used the Wadsworth farm for raising cattle, farming, and growing timber.
Thompson owns approximately 290 acres of land immediately to the east and south of the Wadsworth farm. Thompson lives on her land, several hundred yards from the land at issue here. Thompson and her family have for many years used their land for farming, raising cattle, growing pecans, and growing timber.
The land at issue ("the disputed strip") is a long, narrow strip of land between the record, eastern boundary line of the Wadsworth farm and an old fence. The strip is approximately 2,000 feet long, and it ranges from 30 to 100 feet wide. The Wadsworth family and their tenants have used at least part of the disputed strip for raising cattle and growing crops since 1936.[2]
In April 2002, Wadsworth filed his complaint against Thompson and a logging company, asserting a claim for damages for trespass for cutting trees on the disputed strip, which Wadsworth claims to own by adverse possession. Wadsworth also sought a judgment declaring the old fence to be the true boundary between the coterminous properties. On Wadsworth's motion, the logging company was dismissed.
Thompson answered, and the case was set for trial in August 2003. In July 2003, Thompson filed a motion for a summary judgment, along with supporting documentary evidence. Wadsworth filed an opposition to the summary-judgment motion, along with a brief and supporting documentary evidence. At a pretrial conference in July 2003, the trial court continued the trial. On August 13, 2003, Wadsworth supplemented his opposition to Thompson's motion for a summary judgment.
On March 3, 2004, the trial court entered a summary judgment in favor of Thompson. The summary judgment was based on the trial court's determination (1) that there was no competent evidence that the fence was in place when Wadsworth's father purchased the Wadsworth farm in 1939, (2) that "the more competent evidence supports the fact that [Wadsworth's] *532 father's use of the disputed property was permissive," and (3) that the use by Wadsworth's father was not exclusive because the Thompson family also made use of the disputed strip. Wadsworth filed a timely appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.
"We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing `that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, `the burden then shifts to the nonmovant to rebut the movant's prima facie showing by "substantial evidence."' Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992)."
Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002).
A party claiming ownership of property by adverse possession must prove by clear and convincing evidence that there was "`actual, hostile, open, notorious, exclusive, and continuous'" possession for the statutory period.[3]Henderson v. Dunn, 871 So.2d 807, 810 (Ala.Civ.App. 2001) (quoting Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983)). "[T]he burden of proof rests upon the party asserting adverse possession, and every presumption is in favor of the holder of legal title." Lee v. Brown, 482 So.2d 293, 295 (Ala.1985).
The elements of actual, open, notorious, and continuous possession are easily addressed. "The presence of a fence, which is an outstanding symbol of possession, coupled with normal acts of use in appropriation of the land, sufficiently satisfies the requirements of adverse possession." Bearden v. Ellison, 560 So.2d 1042, 1045 (Ala.1990). There is ample evidence, most of it undisputed, that Wadsworth and his father and their tenants used the disputed strip, up to the old fence, for farming, raising cattle, and related activities from 1939 through 1976 or later.[4] Their use was actual, open, and notorious. "`[I]t is not necessary to physically reside upon the land to establish title by adverse possession.'" Sparks v. Byrd, 562 So.2d 211, 215 (Ala.1990) (quoting Hand v. Stanard, 392 So.2d 1157, 1160 (Ala.1980)). Farming the land to the fence line is sufficient to constitute actual possession. Id.; Kubiszyn *533 v. Bradley, 292 Ala. 570, 575, 298 So.2d 9, 13 (1974)(cultivation, cutting timber, and growing pasture to fence line were sufficient to support claim of adverse possession). Wadsworth has presented evidence sufficient to create a genuine issue of material fact as to the elements of adverse possession.
Thompson's primary argument is that the Wadsworth family's use of the disputed strip was permissive. See Tidwell v. Strickler, 457 So.2d 365, 368 (Ala. 1984) ("possession cannot be presumed to be hostile"). Thompson testified that, from the outset, her father and uncles gave Wadsworth's father permission to use the disputed strip. Thompson also testified that, in the 1950s, her father and uncles gave Wadsworth's father permission to build a fence (referred to in this opinion as "the old fence") to allow Wadsworth's father's cattle to reach a pond that was being built at that time. If the initial use is found to have been permissive, continued use will not ripen into adverse possession by mere lapse of time. Wallace v. Putman, 495 So.2d 1072, 1076 (Ala.1986). "In order to change possession from permissive to adverse, the possessor must make a clear and positive disclaimer or repudiation of the true owner's title." Moss v. Woodrow Reynolds & Son Timber Co., 592 So.2d 1029, 1031 (Ala.1992).
The evidence is disputed, however, concerning whether Thompson's father and uncles gave Wadsworth's father permission to use the disputed strip and to build the old fence. Wadsworth presented evidence indicating that the old fence was present when Wadsworth's father moved onto the land in 1936 and that both Wadsworth's father and Thompson's father and uncles had always treated the old fence as the eastern boundary of the Wadsworth farm.[5] Wadsworth also presented evidence indicating that his father always held the disputed strip under a claim of right and that he never heard anyone grant his father permission to use the disputed strip. Moreover, Wadsworth presented evidence indicating that Thompson's father and uncles asked his father's permission before they built a road in the 1950s that backed up a flow of water and created a pond now located on the disputed strip.
Viewing, as we must, the evidence in the light most favorable to Wadsworth, as the nonmovant, we conclude that Wadsworth has created an issue of material fact as to whether his father's use of the disputed strip was permissive or hostile.
Thompson also argues that Wadsworth's possession was not exclusive because her family used the disputed strip for hunting and growing pecan trees. In Dees v. Pennington, 561 So.2d 1065, 1068 (Ala.1990), our Supreme Court reversed a judgment in favor of the party alleging adverse possession of land because both parties had repeatedly cut timber on the disputed property, thus preventing the party asserting ownership by adverse possession from proving exclusive possession for the requisite period.
Thompson's contentions regarding Wadsworth's possession of the disputed strip fail for several reasons. First, most of the acts that she described occurred after title would have vested in Wadsworth's father by adverse possession. See Crowden v. Grantland, 510 So.2d 238 (Ala.1987)(once title vested in adverse possessors, they did not have to continue adversely *534 possessing property in order to retain title; previous owner would have to adversely possess property to get title back). Second, there are factual disputes as to the various acts that Thompson alleges support her contention regarding nonexclusive possession.[6] Finally, it is not clear that certain activities alleged by Thompson rise to a level sufficient to constitute possession. The only undisputed uses made by Thompson and her predecessors of the disputed strip were hunting, occasional pleasure walks, and playing by the pond.[7] Occasional hunting and pleasure walks may not be sufficient, as a matter of law, to constitute possession by Thompson and her predecessors and thus to prevent Wadsworth from establishing exclusive possession. See Strickland v. Markos, 566 So.2d 229, 235 (Ala.1990) (quoting Sparks v. Byrd, 562 So.2d at 215, and 2 C.J.S. Adverse Possession § 54, p. 727 (1972)) ("`[e]xclusivity of possession "is generally demonstrated by acts that comport with ownership"'"; in the absence of erection of physical improvements, exclusivity of possession is determined by "`substantial activity'").
Accordingly, we conclude the Wadsworth has created a genuine issue of material fact as to whether his father's use of the disputed strip was exclusive for the statutory period.
Based on the foregoing, we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
CRAWLEY, P.J., and THOMPSON and BRYAN, JJ., concur.
PITTMAN, J., concurs in the result, without writing.
NOTES
[1] Wadsworth does not live on the land.
[2] As will be discussed later in this opinion, there is a dispute as to when the fence was built, but there is no dispute that the Wadsworth family has used at least part the of disputed strip since 1936.
[3] The parties both appear to agree that the applicable statutory period is 10 years because this is a boundary dispute. See Jones v. Johnson, 827 So.2d 768, 773 n. 2 (Ala.2002). Assuming without deciding that 10 years is the appropriate statutory period, title would have vested in Wadsworth's father in 1949, which is before many of the events described by the parties and their witnesses in this litigation.
[4] Thompson argues that Wadsworth could not adversely possess the disputed strip because he never lived in Autauga County after the mid-1950s. That argument fails because Wadsworth's father used the disputed strip for farming from 1939 until his death in 1968, which is more than the statutory period. Moreover, Wadsworth's tenants continued to use the disputed strip for farming and/or raising cattle after the death of Wadsworth's father. The activities of a tenant inure to the benefit of the landlord. Wadkins v. Melton, 852 So.2d 760, 766 (Ala.Civ.App.2002).
[5] Under Wadsworth's version of the facts, it is not clear as to who built the old fence, when it was built, or for what purpose.
[6] For example, both Thompson and her son testified at their depositions that Thompson and her predecessors had not used the disputed strip for farming, raising cattle, or growing timber. In her deposition, Thompson testified that she was not aware that her family had planted pecan trees on the disputed strip. She later submitted an affidavit in which she claims to have visited the disputed strip after her deposition and to have determined that her family had planted pecan trees there many years before. Wadsworth testified Thompson and her predecessors had never used the disputed strip.
[7] Although Thompson argues in her brief to this court that she and her predecessors have lived on and cultivated the disputed strip, a review of the record reveals that most of these activities were in fact done on Thompson's land outside the disputed strip. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918934/ | 912 So.2d 544 (2005)
THE FLORIDA BAR, Complainant,
v.
Kenneth David KOSSOW, Respondent.
No. SC03-1900.
Supreme Court of Florida.
May 19, 2005.
Rehearing Denied September 28, 2005.
John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, and Lillian Archbold, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
Chandler R. Muller of Muller and Sommerville, P.A., Winter Park, FL and David A. Henson, Brevard, NC, for Respondent.
PER CURIAM.
The Bar has petitioned for review of a referee's report recommending that attorney Kenneth Kossow receive a public reprimand for unethical conduct in connection with the violation of an agreement between Kossow and the law firm that employed him. We have jurisdiction. See art. V, § 15, Fla. Const. We consider Kossow's *545 misconduct to be a serious breach of his duty of loyalty to his law firm, and for the reasons set forth below, we reject the referee's recommended discipline and impose a thirty-day suspension.
BACKGROUND
In July 2001, Kossow was hired by the law firm of Hunt, Cook, Riggs, Mehr & Miller, P.A. (the firm). At that time, Kossow advised the firm that he conducted a private law practice under the name Emergent Solutions Group (Emergent). He also advised the firm of the nature and extent of his practice.
On October 25, 2001, the firm's administrator sent a memo requesting that each firm associate "prepare a list of all matters in which you may be providing legal representation on a pro bono basis and/or representation of family or friends, or for any matters which have not been specifically set up as clients of the firm." The memo further advised that under the terms of employment with the firm, associates should not provide legal services in any capacity other than as employees of the firm. Kossow furnished the requested information. After receiving the memo and while continuing to work for the firm, Kossow accepted new business and represented clients for the benefit of Emergent and in violation of the firm's policy. Kossow did not disclose the outside work to the firm.
In January 2002, the firm intercepted a signed engagement letter and retainer check payable to Emergent that was addressed to Kossow at the firm's address. Without disclosing the interception to Kossow, a firm representative asked Kossow if he had done any work for that client. When Kossow denied having done any, the representative showed Kossow the engagement letter and fired him.
Pursuant to an unconditional guilty plea tendered by Kossow, the referee recommended that Kossow be found guilty of violating Rule Regulating the Florida Bar 4-8.4(c), which provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
At the hearing on discipline, Kossow testified that he earned approximately $18,500 in fees from handling matters for outside clients after he received the October 25 policy memo. He testified he knew that after October 25 his outside work was a violation of the policy outlined in the memo. He further testified that he did not share any of those outside fees with the firm. According to one of the firm's representatives (two testified at the hearing), the firm made no demand on Kossow for any portion of those fees or for return of any moneys, although the representative testified that he believed Kossow caused economic loss to the firm in billable hours and wasted firm resources. Both firm representatives testified that Kossow was hired at $135,000 per year but was transferred out of the tax division and into the estates division at a reduced salary of $100,000 per year, due in part to his failure to meet the billable hour requirements. One representative, who was also one of Kossow's supervisors, testified that Kossow's work product was never adequate. However, Kossow also introduced into evidence complimentary notations on his work from other firm supervisors.
As to discipline, the referee recommended that Kossow receive a public reprimand and that he pay the Bar's costs. In making this recommendation, the referee noted that Kossow has no prior disciplinary history. The referee found as the sole aggravating factor that Kossow's conduct was dishonest and selfish. The referee declined to find the aggravating factors of victim vulnerability, misappropriation or *546 waste of firm resources, and failure to make restitution. The referee also found that no waste of firm resources was proven and that a theft of firm resources was not established. With regard to restitution, the referee noted that a firm representative made it clear the firm had no desire to represent the clients that Kossow had personally represented and made no demand for a portion of the fees received by Kossow as result of his representation of these clients.
As to mitigation, the referee found that Kossow was a young attorney (age 32) who was inexperienced with the demands of a hectic firm that expected him to supervise himself. The referee also found other factors in mitigation, including (1) Kossow now works successfully as a wealth strategist for Bank of America, (2) he has expressed embarrassment and remorse for his misconduct, (3) he has taken two CLE ethics courses, (4) he has good character, (5) he made full and free disclosure to the Bar, (6) he did not harm any clients of the firm or the public, and (7) his misconduct stemmed more from an imperfect understanding of his obligations to the firm than from deceit or any intent to harm the firm. The referee classified Kossow's misconduct as a failure to maintain his personal integrity.
The Bar has petitioned for review, challenging the referee's recommended discipline.
ANALYSIS
As a preliminary matter, neither of the parties challenges the referee's findings of fact and the recommended rule violation. Accordingly, we approve these findings without further discussion.
As to discipline, although a referee's recommendation is persuasive, this Court does not pay the same deference to this recommendation as it does to the guilt recommendation because this Court has the ultimate responsibility to determine the appropriate sanction. Generally speaking, this Court will not second-guess a referee's recommended discipline as long as that discipline has a reasonable basis in existing caselaw or in the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999). The Bar argues that the referee's recommendation is far too lenient, and asserts that a ninety-day suspension for Kossow's unethical misconduct is appropriate. On the other hand, Kossow argues that the referee's recommendation is reasonable in light of the significant mitigation found by the referee.
We agree with the Bar that a public reprimand is too lenient for what was blatantly dishonest and deceitful conduct on Kossow's part. Kossow continued to represent clients outside of the firm and accept new clients despite his knowledge of the firm's policy against outside employment. Further, Kossow furthered his own financial goals at the firm's expense. A firm representative testified that in servicing these outside clients, Kossow emailed documents to himself, had the firm's administrative staff copy books and treatises from the firm's library, and utilized work time to talk to the other members of the firm about his outside cases. It does not matter that Kossow's use of the firm's time and resources to represent nonfirm clients, contrary to the firm's stated policy, may not be quantifiable to an exact amount. It is unquestionable that by using the firm's equipment, materials, and time (during which Kossow could have been working for the firm, or the associates who discussed Kossow's cases with him could have been doing work for the firm), Kossow misappropriated the resources of the firm that employed him, thereby compromising the good of the firm to his own financial ends. *547 Further, Kossow's unethical conduct did not end there. When a firm representative asked him a question related to his moonlighting, Kossow could have admitted that he had continued to represent clients outside of the firm and was accepting new clients as well. Instead, he attempted to conceal his ongoing misconduct by answering dishonestly when asked about having done work for the client whose letter was intercepted.
In prior cases, we have suspended attorneys who moonlighted in contravention of firm policy and who willfully deceived their firms with regard to this outside representation. In Florida Bar v. Cox, 655 So.2d 1122, 1122 (Fla.1995), an attorney accepted cases without the knowledge and consent of his firm even though the firm had a policy against unauthorized outside legal employment. Cox further collected and kept fees generated from his outside clients. Cox also billed the clients on the firm's stationery, thereby using firm resources in furtherance of his moonlighting. Id. As with Kossow, when Cox was initially confronted, he denied such conduct; however, when faced with documented evidence of his misconduct, he admitted to having collected fees. Id. The Court rejected Cox's claim that his misconduct merited only a public reprimand. Id. at 1123. Despite the lack of harm to either Cox's firm, his clients, or his firm's clients, the Court imposed the thirty-day suspension recommended by the referee, concluding that Cox's unauthorized moonlighting and willful deceit towards his firm "reflect[ed] a pattern of intentional misconduct and deception which warrants serious [discipline]." Id.
With regard to Kossow's ongoing misuse of the firm's resources to represent his own personal clients and thereby further his own financial interests, a thirty-day suspension is more than fair to Kossow, and could actually be considered lenient. Other states have imposed harsher discipline on attorneys who have engaged in such conduct. For example, in In re Cupples, 979 S.W.2d 932 (Mo.1998), the Missouri Supreme Court suspended indefinitely an attorney who concealed the fact that he was conducting a private law practice while engaged in full-time employment for a firm, used firm resources to represent his separate clients, and exposed the firm to potential malpractice liability based on possible conflicts of interest between his personal clients and the firm's clients.[1] In aggravation, the court found that Cupples had a disciplinary history, possessed substantial experience in the practice of law, and refused to acknowledge the wrongful nature of his conduct. Id. at 937. In imposing an indefinite suspension, the court used language especially pertinent to the instant case:
[Cupples' conduct] involves dishonesty, deceit, and misrepresentation. The firm believed that Cupples was a full time employee who would devote one hundred percent of his professional time and efforts to the firm. Cupples' actions directly contradicted the firm's expectations, constituted an appropriation of firm resources for private gain, and exposed the firm to potential malpractice liability. His conduct was deceitful, dishonest, and misrepresentative. As a consequence, this case requires discipline and mandates sanctions.
Id. at 936.
We similarly conclude that Kossow's conduct towards the firm was disloyal *548 and deceitful. An attorney who uses firm resources to place his or her pecuniary interests over those of the firm engages in misconduct that indubitably calls into question the attorney's fitness to practice law, and such ongoing and intentional misconduct by an attorney justifies serious discipline. Therefore, we conclude that a thirty-day suspension is the minimum discipline that should be imposed upon Kossow for his unethical and dishonest dealings with the firm. This conclusion is consistent with Florida Standard for Imposing Lawyer Sanctions 7.2, which provides that suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury to the public, a client, or the legal system. Without question, Kossow intentionally violated his professional duty to the firm, and his misappropriation of firm time and resources harmed the firm. We caution that in the future, the discipline imposed may be harsher for attorneys who represent outside clients in violation of firm policy, misuse their firms' resources to represent those clients, and act dishonestly by failing to disclose those clients to their firms.
CONCLUSION
Accordingly, Kenneth David Kossow is hereby suspended from the practice of law for a period of thirty days. The suspension will be effective thirty days from the filing of this opinion so that Kossow can close out his practice and protect the interests of existing clients. If Kossow notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Kossow shall accept no new business from the date this opinion is filed until the suspension is completed. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida XXXXX-XXXX, for recovery of costs from Kenneth David Kossow in the amount of $1,238.71, for which sum let execution issue.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
LEWIS, J., concurs specially with an opinion, in which CANTERO, J., concurs.
LEWIS, J., specially concurring.
I agree with the majority, and I have become increasingly concerned with the type of conduct we consider today. This record not only supports the majority view today but, in my estimation, reveals a very serious problem that must be firmly addressed. Here, the respondent was an associate in a law firm who, during his employment with the firm, diverted funds, resources, and time that should have been flowing to the benefit of the firm which was paying him a very generous salary. When confronted with questions regarding these clandestine activities, he not only misled the firm he was blatantly untruthful. He was given a number of opportunities to disclose, admit, and confront his misconduct but chose to be evasive and continue his personally profitable endeavors. At no time did the offender offer to pay or reimburse the firm for any portion of the thousands of dollars of fees earned or time and resources he pilfered as a result of his clandestine law practice. All of this is clearly substantiated in the record.
The referees conclusions as to the aggravating and mitigating factors are most interesting because they appear to include an almost bitter reluctance to find aggravation. Although finding the conduct to be dishonest and selfish, the referee simply *549 declined to find any other aggravating factors including harm to the victim, failure to make restitution, or waste of firm resources. The referee determined that testimony provided by the witnesses of wasted resources consisting of the respondents e-mailing himself documents, the copying of treatises, and consulting with other lawyers about his cases did not establish a theft of firm resources. In my view this is, most assuredly, a very questionable finding at best. Most notably, the referee failed to find that the thousands of dollars earned secretly by the respondent while employed by the firm should have gone to the firm and also rejected a finding of any theft of firm resources whatsoever.
The referee concluded that the firm was not a vulnerable victim such as an unsophisticated client, but vulnerability, while provoking an emotional response, is not a fundamental element of theft. In mitigation, the referee did note that the conduct did not result in any harm to any client of the firm or to any member of the public but it most certainly impacted the firm itself.
This Courts past disciplinary sanctions for analogous conduct would support an even greater sanction than that assessed today as can be seen in Florida Bar v. Gillin, 484 So.2d 1218 (Fla.1986), Florida Bar v. Cox, 655 So.2d 1122 (Fla.1995), and Florida Bar v. Arcia, 848 So.2d 296 (Fla. 2003). In Gillin, an attorney was suspended for six months for the misdirection of fees which a client had paid directly to him rather than to his firm. There, the attorney had made restitution for the fees, resulting in no continuing harm to any party. The referee properly considered Gillins absence of prior disciplinary history, his character and reputation, his community involvement, and full restitution to the firm in imposing a six-month suspension.
The majority opinion follows and is supported by Florida Bar v. Cox, in which this Court imposed a thirty-day suspension for similar moonlighting activities. There, Cox accepted clients without the knowledge and consent of the firm, which violated a firm policy against unauthorized outside legal employment. Cox initially denied that he had engaged in moonlighting while employed as an associate with the law firm, and initially even denied that he had represented those outside clients and collected legal fees from them. Cox was found to be in violation of Rule Regulating the Florida Bar 4-8.4(c) for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation for the performance of legal services for clients without the consent or authorization of the law firm and attempting to conceal the fact from his employer. As we noted in Cox:
Although Coxs conduct may not have caused serious harm to the clients or the firm where he was employed, the facts reflect a pattern of intentional misconduct and deception which warrants serious punishment. Cox continued to engage in unauthorized legal employment even after he was specifically warned against it, and, even more importantly, willfully deceived the firm about his conduct.
655 So.2d at 1123.
We also held an attorney to be in violation of our rules in Florida Bar v. Arcia, 848 So.2d 296 (Fla.2003), when he violated the firms employment policy, which prohibited associates from independently representing the firms clients or prospective clients and retaining the fees earned from such prohibited, clandestine representations for their own enrichment. In Arcia, the attorney generated approximately $62,000 while operating his own separate professional association in contravention of firm policy requiring any fees earned to be *550 submitted to the firm. Arcia received a three-year suspension followed by a three-year period of probation with rehabilitative conditions instead of disbarment primarily because the mitigating factors of remorse, inexperience in the practice of law, and timely restitution of the full amount diverted from the firm were present.
Certainly, the facts giving rise to our decision in Arcia are distinguishable from those we see today but this Court made a very important statement as to misappropriation of firm and client funds when we reasoned:
Conduct such as Arcias (i.e., an attorney stealing from a law firm) has been held to constitute grand theft. We conclude that, for purposes of attorney discipline, theft of firm funds is serious enough to warrant disbarment under most circumstances. While theft of client funds rends the fundamental bond between a lawyer and the client, theft of firm funds breaches the trust that law firms must place in their attorneys as professionals to act as representatives of the firm.
848 So.2d at 299-300 (citation omitted).
As we bring this unfortunate matter to a conclusion, we must not fail to advise the bench and bar that this type of extra-employment conduct, when contrary to a law firm's policy, simply cannot be condoned and will face appropriate sanction. Time, materials, and resources are firm assets and when misappropriated under circumstances such as these in conducting a separate practice of law or secreting firm clients it is most certainly a form of theft.
CANTERO, J., concurs.
NOTES
[1] The court allowed the attorney to petition for reinstatement after a minimum of six months. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299365/ | 578 N.W.2d 353 (1998)
James Bruce OSLUND, Plaintiff,
v.
Grant Stephen JOHNSON, Defendant.
James Leonard JOHNSON, defendant and third-party plaintiff, Respondent,
v.
Matthew CHAMERNICK, et al., d/b/a/ CC Club, third-party defendants, petitioners, Appellants,
Toonen, Inc., d/b/a/ Uptown Bar & Cafe, third-party defendant, petitioner, Appellant.
No. C4-97-253.
Supreme Court of Minnesota.
May 14, 1998.
*355 Steven E. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, for Toonen, Inc.
Michael J. Dwyer, Virginia A. Dwyer, Grannis & Hauge, P.A., Eagan, for Chamernick, et al.
Lawrence N. Rocheford, Sydnee N. Woods, Jardine, Logan & O'Brien, P.L.L.P., St. Paul, for James Leonard Johnson.
Heard, considered, and decided by the court en banc.
OPINION
ANDERSON, Justice.
Early in the morning on February 13, 1994, defendant Grant Johnson drove his father's van while intoxicated and rear-ended a city sanding truck driven by plaintiff James Oslund. Eleven months later, Oslund commenced an action against Grant Johnson's father, respondent James Johnson, for injuries arising from this accident. Fifty-eight days later, James Johnson served a notice of claim against the appellants, the CC Club and the Uptown Bar, the last two bars to serve Grant Johnson alcoholic beverages before the accident. The following day, Johnson served the two bars with a third-party complaint. The two bars brought motions for summary judgment, asserting that James Johnson failed to comply with the time requirements for notice under the Dram Shop Act, Minn.Stat. ch. 340A (1996). The district court granted the motions. The Minnesota Court of Appeals reversed, holding that the statutory notice requirement did not apply to vicariously liable tortfeasors such as James Johnson. We conclude that the statutory notice requirement does apply to James Johnson, and that the notice he gave was untimely. Therefore, we reverse the court of appeals and reinstate the district court's grant of summary judgment.
The facts are undisputed. Grant Johnson was driving his father's van on the evening of February 12, 1994 as he went from bar to bar drinking with friends. Around 11:00 p.m., he left the CC Club and went to the Uptown Bar. Both bars served alcoholic beverages to Grant. After leaving the Uptown Bar around 1:00 a.m. on February 13, Grant was driving the van along Dupont Avenue in Minneapolis when he rear-ended a city sanding truck being driven by James Oslund. When the police arrived at the accident scene, they noticed that Grant appeared to be intoxicated and obtained his consent to test his blood for alcohol. The test showed that at 2:20 a.m. Grant's blood alcohol content was .23.
Oslund suffered injuries as a result of the accident and, on January 17, 1995, commenced an action against James Johnson to recover damages for these injuries. In his action, Oslund alleged that because James Johnson, Grant's father, gave Grant permission to drive the van, Johnson was liable for injuries arising from the accident. See Minn.Stat. § 170.54 (1996).
On March 16, 1995, James Johnson sent notices to Matthew Chamernick, Lester Emard, and TMMS, Inc., doing business as CC Club, and Toonen, Inc., doing business as Uptown Bar & Cafe. He informed the bars about the January 17 lawsuit and notified them that he may be bringing an action against them under the Dram Shop Act, which allows a person injured by the result of an illegal sale of alcoholic beverages to recover from the one making the illegal sale. Minn.Stat. § 340A.801. The following day, Johnson served a third-party complaint against the two bars, alleging that they had illegally served his son alcoholic beverages on *356 February 12 and 13, 1994, and thus he, James Johnson, was entitled to contribution or indemnity from the bars.
The two bars brought motions for summary judgment, arguing that Johnson had failed to meet the notice requirement of Minn.Stat. § 340A.802, subd. 2, which provides in part:
In the case of claims for contribution or indemnity [from a liquor vendor], * * * notice [of the claim] must be served within 120 days after the injury occurs or within 60 days after receiving written notice of a claim for contribution or indemnity, whichever is applicable.
Under that statute, "[n]o action for * * * contribution or indemnity may be maintained unless the notice has been given." Id. The two bars argued that because the accident occurred on February 13, 1994, and Johnson served them with the notice more than a year later on March 16, 1995, Johnson had failed to meet the 120-day-from-injury provision. The Hennepin County District Court denied the motion, determining that Johnson only needed to provide notice within 60 days of receiving notice himself, and found that Johnson did not receive notice until Oslund's complaint was served on January 17, 1995. Therefore, the court concluded that the notice sent on March 16, 1995 was timely.
Additional discovery revealed that James Johnson knew of the accident the day it occurred and had been put on notice that he could be sued long before he was served with Oslund's complaint. Johnson admitted during his deposition that his son called him on the day of the accident, told him about the accident, and informed Johnson that he had been drinking. Further, Oslund's attorney sent James Johnson a letter on October 27, 1994, notifying Johnson that he would be representing Oslund in regard to the accident and asking Johnson to immediately notify his insurer. Based on this additional information, the two bars renewed their motions for summary judgment. This time, the district court stated that it was unclear whether the 120-day or 60-day provision applied, but held that Johnson's notice was untimely under either provision. Therefore, the court granted summary judgment in favor of the two bars, dismissing the case against them. Later, in 1996, Johnson settled his claims with Oslund.
Johnson appealed the district court's grant of summary judgment in favor of the two bars. The court of appeals reversed the district court and reinstated Johnson's action. The court of appeals held that the time periods for notice in Minn. Stat. § 340A.802, subd. 2 do not apply to a tortfeasor who is only vicariously liable and thus do not apply to Johnson. The court stated that the "120 days after the injury" provision could not apply because a vicarious tortfeasor may not even have notice of the injury within 120 days of its occurrence. The court further held that the "60 days after receiving written notice of a claim for contribution or indemnity" provision does not apply to a vicariously liable tortfeasor such as Johnson who is sued for damages, and not for contribution or indemnity. Alternatively, the court concluded that even if the 60-day notice provision applies, Johnson was in compliance because he served the notice of injury within 60 days of being served with the summons and complaint against him. The two bars now appeal to this court.
When reviewing summary judgment, we review the record to determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995). "When a [district] court applies statutory language to the undisputed facts of a case, its conclusion is one of law and does not bind this court." Id. Here, the facts are undisputed, and the only question is one of statutory interpretation. As such, we apply de novo review to the district court's decision.
The first issue is whether the notice requirement applies to Johnson who is only alleged to have been vicariously liable. If the words of a statute are free from ambiguity, they are not to be disregarded. Minn.Stat. § 645.16 (1996). Therefore, we begin with the language of the statute. Subdivision 1 of Minn.Stat. § 340A.802 provides that a "person who claims * * * contribution or indemnity from a licensed retailer of alcoholic *357 beverages * * * must give a written notice to the licensee." Under the plain language of the statute, we conclude that James Johnson was required to comply with the notice requirement because he is a person bringing a claim for contribution or indemnity against a licensed retailer of alcoholic beverages. Subdivision 2 of Minn.Stat. § 340A.802 provides that "[i]n the case of claims for contribution or indemnity, the notice must be served within 120 days after the injury occurs or within 60 days after receiving written notice of a claim for contribution or indemnity, whichever is applicable." Accordingly, we conclude that Johnson was required to comply with either the 60-day or the 120-day notice provision.
We first analyze application of the 60-day provision to Johnson. Under Minn.Stat. § 340A.802, subd. 2, a person suing a liquor vendor for contribution or indemnity must provide that vendor with written notice "within 60 days after receiving written notice of a claim for contribution or indemnity." The court of appeals concluded that the 60-day provision could not apply to Johnson because Oslund sued Johnson for damages, not for contribution or indemnity. We agree. Because Johnson was sued for damages only, he would never receive written notice of a claim for contribution or indemnity. Further, the statute uses the terms "written notice" and "notice" throughout to refer to the notice that must be sent to the liquor vendor being sued. As Johnson is not a liquor vendor being sued for contribution or indemnity, the 60-day notice provision does not apply to him.
Next, we analyze the 120-day provision as applied to Johnson. Under Minn.Stat. § 340A.802, subd. 2, a person claiming contribution or indemnity from a liquor vendor must serve that vendor with notice of that claim within "120 days after the injury occurs." Because Johnson is a person claiming contribution or indemnity from a liquor vendor, he was required to comply with the 120-day provision.
Johnson argues that even if the 120-day provision does apply to him, "injury" cannot mean the accident, but must instead refer to the time when he was injured by having to pay more than his fair share of the damages. Johnson claims that he did not suffer injury until he had to pay damages when he settled with Oslund in November 1996. Johnson's argument is unconvincing. Throughout the Dram Shop Act, "injury" refers to the original accident giving rise to the claim for contribution or indemnity. For example, subdivision 1 of Minn.Stat. § 340A.802 states that the notice requirement applies to persons claiming "contribution or indemnity * * * for or because of an injury within the scope of section 340A.801" (emphasis added). "Injury" is not the equivalent of "contribution or indemnity." Section 340A.801 does not define "injury," but refers to injury caused "by an intoxicated person or by the intoxication of another person." Therefore, "injury" refers to the initial injury caused by the intoxicated person, and not to the ensuing claim for contribution or indemnity. Thus, the 120-day provision began to run on the date of the accident February 13, 1994.
Applying the 120-day notice provision to Johnson, we conclude that the notice he served was untimely. Johnson was required to serve notice to the bars within 120 days of the accident, which was June 12, 1994, but his notice was not sent until March 16, 1995, more than nine months late. When a statute supplies a specific notice requirement, any claims under that statute are barred when notice has not been timely given. See, e.g., Hansen v. D.M. & I.R. Ry. Co., 292 Minn. 503, 503-04, 195 N.W.2d 814, 814-15 (1972) (barring a claim for contribution because of failure to comply with 30-day notice requirement). Under Minn.Stat. § 340A.802, subd. 2, an action for contribution or indemnity cannot be maintained unless timely notice has been given. Johnson did not give timely notice under the statute, and therefore his claim is barred.
Affirmed in part, reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859345/ | guyson
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00522-CV
State of Texas, Appellant
v.
Liberty National Bank, Appellee
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. 2006, HONORABLE STEVE RUSSELL, JUDGE PRESIDING
In a condemnation proceeding, the State of Texas, appellant, asserted a theory of
lienholder liability against appellee Liberty National Bank (the "Bank"). The trial court concluded
that the State's claim was unreasonable and without foundation in existing law, and awarded the
Bank attorney's fees as sanctions. The State appeals. We will reverse the trial court's judgment
and render judgment that the Bank take nothing on its claim for attorney's fees.
BACKGROUND
In January 1991, the State condemned a tract of land owned by the Pruitt family.
The property, which consisted of two lots located in Travis County, had two small businesses on
it. A special commissioners hearing was held to determine the value of the property. After
hearing evidence from the Pruitts that the property was worth $750,000 and from the State that
the property was worth $500,000, the special commissioners awarded the Pruitts $675,000. The
State filed objections to the award on October 7, 1991, and deposited the amount of the award into
the court registry. See Tex. Prop. Code Ann. § 21.021(a)(1) (West 1984). (1) Before a trial de
novo could be held to determine the value of the property, the lessee, Stacey E. Oliver, exercised
an option to purchase the property for $500,000 in the name of Guyson Limited Partnership
("Guyson"). Guyson borrowed $500,000 from the Bank to purchase the property, and gave the
Bank a mortgage lien on the property as security for the loan. On March 4, 1992, the trial court
issued an order permitting Guyson and the Bank to become successors in interest to the Pruitt
family. The court also granted Guyson and the Bank's motion to withdraw the special
commissioners' award from the registry of the court. Guyson then paid the Bank $495,113.87
plus interest to satisfy its loan. The following year, Guyson filed for bankruptcy.
On August 3, 1993, the State joined Guyson and the Bank as parties in its
condemnation suit. This suit is the second case we have considered in which the State has
asserted its theory that a lienholder could be held liable for any deficiency between the jury award
and the special commissioners' award. Here, as in our first confrontation of the issue, State v.
First Interstate Bank, 880 S.W.2d 427 (Tex. App.--Austin 1994, writ denied), the State argued that
the Bank had an ownership interest in the property based on its mortgage lien, and, thus, was
jointly and severally liable for any amount of money by which the special commissioners' award
exceeded the jury's award. See Tex. Prop. Code Ann. § 21.044(b) (West 1984) ("[I]f the award
paid to or appropriated by the property owner exceeds the court's final determination of the value
of the property, the court shall order the property owner to return the excess to the condemnor.").
In response, the Bank moved for summary judgment, contending that under section 21.044 of the
Texas Property Code, a lienholder is not considered a property owner. The Bank argued that it
could not be held liable to the State if the jury awarded a smaller amount of damages than the
special commissioners awarded. The trial court denied the Bank's motion for summary
judgment. (2)
The case went to trial, and the jury awarded $630,000 in damages, which was
$45,000 less than the special commissioners' award. On the third day of trial, we decided First
Interstate, in which we held that a lienholder is not a property owner. 880 S.W.2d at 427. In
the final judgment in the instant cause, the trial court granted the Bank's motion for frivolous
claim against the State and awarded the Bank $40,000 in attorney's fees based upon our decision
in First Interstate. The trial court reasoned that the State's joint and several liability claim was
without foundation in existing law and was unreasonable. Because our decision in First Interstate
was an integral part of the trial court's decision, we will examine our holding in some detail.
In First Interstate, the State brought a condemnation suit against a landowner and
the bank that held a lien on the property. The special commissioners awarded more than six
million dollars. The State filed objections to the award, and the landowner and the bank withdrew
the money. The State then sued both the landowner and the bank on the theory that both were
jointly and severally liable for any deficiency between the commissioners' award and the jury
verdict. Id. at 428-29.
The trial court granted summary judgment in favor of the bank. Id. at 429. The
State appealed the summary judgment, contending that under section 21.044, the bank was liable
for the difference between the special commissioners' award and the final award of value. (3) See
Tex. Prop. Code Ann. § 21.044(b) (West 1984). This Court concluded that a lienholder is not
a property owner and, therefore, cannot be held liable for money deposited into the registry of
the court. First Interstate, 880 S.W.2d at 431.
The State contends that because the Texas Supreme Court has not yet finally
decided the question of lienholder liability, (4) its claim against the Bank in the instant cause was not
unreasonable and without foundation in existing law. See McKnight v. General Motors Corp.,
114 S. Ct. 1826, 1826 (1994) (party's claim was not frivolous because Supreme Court had not
yet decided issue on appeal). The Bank contends that because this Court rejected the State's
theory of lienholder liability in First Interstate, the trial court's action was proper.
DISCUSSION
Section 105.002 of the Texas Civil Practice and Remedies Code provides that
sanctions are permitted against the State when:
A party to a civil suit in a court of this state brought by or against a state agency
in which the agency asserts a cause of action against the party, either originally or
as a counterclaim or cross claim, is entitled to recover, in addition to all other costs
allowed by law or rule, fees, expenses, and reasonable attorney's fees incurred by
the party in defending the agency's action if:
(1) the court finds that the action is frivolous, unreasonable, or without
foundation; and
(2) the action is dismissed or judgment is awarded to the party.
Tex. Civ. Prac. & Rem. Code Ann. § 105.002 (West 1986). Sanctions are permitted only if the
trial court finds that the claim is either frivolous, unreasonable, or without foundation. Id. In its second point of error, the State argues that under the unique circumstances
presented here, the trial court erred by imposing sanctions. The State relies on the fact that we
did not hand down First Interstate until the third day of trial in the instant cause. Therefore,
according to the State, its lienholder liability theory had to be asserted in this case to protect the
State's interest pending the outcome in First Interstate.
In determining whether the trial court erred in imposing sanctions, we are mindful
of the policy implications involved in permitting a trial court to award sanctions against a party
for asserting a novel theory of law. Although sanctions serve a beneficial role in deterring
unfounded and unwarranted litigation, they should not be used to prevent the development of the
law. The body of law is in a constant state of evolution, and this Court is wary of endorsing any
actions that may chill its development. See Dyson Descendant Corp. v. Sonat Exploration Co.,
861 S.W.2d 942, 951 (Tex. App.--Houston [1st Dist.] 1993, no writ) (sanctions must not "have
a chilling effect on those who seek change in legal precedent").
In the instant cause, the timing of the appeal of First Interstate placed the State in
a very difficult position. Although the trial court in First Interstate ruled against the State's theory
of lienholder liability, this Court had not yet decided the issue on appeal. Consequently, at the
time of the trial in the instant cause, the State was asserting a potentially viable legal theory.
Although this Court ultimately disagreed with the State's theory in First Interstate, we cannot say
that the State's theory was unreasonable or totally without foundation in existing law. See
Houston N. Shore Ry. v. Tyrrell, 98 S.W.2d 786, 793 (Tex. 1936) (allowing lienholders to
recover damages because term "owner" includes any "person who has an interest in the
[condemned] property"). (5)
Because First Interstate was still pending on appeal at the time of trial in the instant
cause, we conclude as a matter of law that the State's lienholder liability claim was not
unreasonable or without foundation in existing law. Thus, the trial court erred in awarding
sanctions against the State. We sustain the State's second point of error. Our disposition of this
point makes it unnecessary to address the State's first and third points of error.
We reverse that portion of the trial court's judgment awarding attorney's fees, and
render judgment that the Bank take nothing on its claim for attorney's fees under Section 105.002.
Mack Kidd, Justice
Before Chief Justice Carroll, Justices Powers and Kidd; Justice Powers not participating
Reversed and Rendered
Filed: August 16, 1995
Do Not Publish
1. 1 Section 21.021(a)(1) provides:
After the special commissioners have made an award in a condemnation proceeding,
. . . the condemnor may take possession of the condemned property pending the
results of further litigation if the condemnor:
(1) pays to the property owner the amount of damages and costs awarded by
the special commissioners or deposits that amount of money with the court
subject to the order of the property owner.
2. 2 The record reveals that the trial judge who denied the summary judgment motion was not
the same judge who presided at the trial on the merits.
3. 3 The landowner, who had declared bankruptcy, entered into a settlement agreement with the
State as to the value of the property, which was less than the commissioners' award.
4. 4 Although the supreme court has denied writ in First Interstate, the State's motion for
rehearing is still pending.
5. 5 In Tyrrell, the lienholder was considered a property owner because he had to be justly
compensated for his interest in the land. Tyrrell, 98 S.W.2d at 793. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2859377/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00725-CR
Danny Riley, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 44,181, HONORABLE RICK MORRIS, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of possessing less than twenty-eight grams of cocaine.
Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. Laws
2230, 2936 (Tex. Health & Safety Code Ann. § 481.115, since amended). The district court
assessed punishment, enhanced by two previous felony convictions, at imprisonment for twenty-five years.
On the night of March 19, 1994, Temple police officer James Tobin and two fellow
officers were returning to their substation after responding to a call when they observed three men
standing beside a car stopped in the street. Tobin described what happened as follows:
We went around the corner, we seen the vehicle parked in the 500 block of South
Henderson stopped in the middle of the roadway. There was three black males
standing around it, one of them was up to the driver's window of the car and he
had his hand inside like this talking to the driver, which is a common thing that
drug dealers do when they make their drug buys.
. . .
Q. And you're saying from your training and experience that looked like what
kind of behavior to you?
A. Individual trying to make a drug sale.
. . .
Q. Okay. Could you see this individual that had his hands inside that car, could
you see if he accepted any money or if he got anything in return or did y'all
interrupt things in the process?
A. We interrupted things in the process the way it appeared because the car
quickly sped off as soon as we stopped behind it.
The man who had his hands inside the car was later identified as Michael Manuel.
When the police arrived, Manuel and one of his companions began to quickly walk away from the
scene. Manuel was chewing something, and the pursuing officer suspected that he was in the
process of swallowing crack cocaine hidden in his mouth. The two men were stopped but no
controlled substances were found on their persons. Manuel had over $400 in small denomination
bills in his pocket.
The third man, identified as appellant, did not attempt to flee. As Tobin got out
of his police vehicle, he saw appellant reach into his pocket, withdraw a "tube, a cylinder object,"
and drop the object on the ground. The object proved to be a copper tube approximately four
inches long which Tobin described as a crack pipe. The pipe was later determined to contain
approximately .06 grams of cocaine residue.
Appellant complains of the prosecutor's jury argument in his two points of error.
Responding to defense counsel's argument drawing attention to the officers' inability to describe
the suspect car, the prosecutor said:
[W]hy weren't the cops paying attention to that car, the customers?
Well, first of all they don't know that this was a drug, drug transaction. From
their experience they strongly suspected it was . . . . They don't know that for a
fact and they certainly couldn't get up here and tell you that they knew that. So,
but with their training and experience they're going to concentrate even, even if
they saw money and something change hands they're going to get the dealers,
they're going to get the dealers first.
Defense counsel objected that "there's no evidence in this case that my client is dealing cocaine"
and noted for the record that the prosecutor was pointing to appellant when he made the reference
to drug dealers. The court overruled the objection but admonished the jurors that "what the
lawyers say during their argument, either side, is not evidence in the case." Moments later, the
prosecutor said, "I don't know and we'll never know if he [appellant] just got through smoking
some crack in that, if he was coming to Manuel to get some more, if he was partners in selling
crack with Manuel, but the point is Tobin said I saw him reach in his pocket and throw that on
the ground."
Appellant argues that the prosecutor's reference to him as a drug dealer was not
supported by the evidence and was an effort to secure his conviction on an improper basis. The
evidence, however, reasonably supports the inference that the officers interrupted a drug
transaction. Defense counsel having criticized the police for ignoring the customers in the car,
the prosecutor was entitled to respond by urging that the police properly concentrated on the
suspected dealers. In context, we believe that the prosecutor's remark was not outside the scope
of proper jury argument.
Further, we find that any error in the prosecutor's argument was harmless beyond
a reasonable doubt. Tex. R. App. P. 81(b)(2). The district court instructed the jurors that the
arguments of counsel are not evidence. While Manuel was the person who appeared to be
carrying out the negotiations, who was later seen suspiciously chewing, and who was in
possession of the large sum of money, appellant was with Manuel and it is reasonable to assume
that he was, at the least, aware of Manuel's activities. The prosecutor's subsequent remarks
emphasized that it was appellant's possession of the crack pipe, and not his reason for being with
Manuel on the night in question, that was the basis for the prosecution. Under the circumstances,
we believe that the prosecutor's remark did not contribute to the conviction.
The two points of error are overruled and the judgment of conviction is affirmed.
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: August 16, 1995
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1587158/ | 709 F.Supp. 436 (1989)
VALUE TIME, INC., d/b/a Value Plus, Plaintiff,
v.
WINDSOR TOYS, INC., Defendant and Third-Party Plaintiff,
v.
Allan RIGBERG, and Allan Rigberg, d/b/a Values Plus, Third-Party Defendants.
No. 88 Civ. 3788 (RWS).
United States District Court, S.D. New York.
March 24, 1989.
*437 Golenbock and Barell, New York, for plaintiff and third-party defendants (Robert S. Goodman, of counsel).
Handal & Morofsky, Norwalk, Conn., for defendant and third-party plaintiff (Anthony H. Handal, Christopher Grahame-Smith, of counsel).
OPINION
SWEET, District Judge.
Third-party defendants Allan Rigberg ("Rigberg") and Allan Rigberg d/b/a Values Plus (collectively, the "Rigberg defendants") have moved pursuant to Fed.R. Civ.P. 12(b)(6) to dismiss the complaint of defendant and third-party plaintiff Windsor Toys, Inc. ("Windsor Toys"). For the reasons set forth below, the motion is granted and the complaint is dismissed.
The Parties
Plaintiff Value Time, Inc., d/b/a Values Plus ("Values Plus") is a New York corporation with its principal place of business at 350 Fifth Avenue, New York, New York.
Windsor Toys is a New Jersey corporation with its principal place of business at 140 Grand Street, Carlstadt, New Jersey.
Rigberg is a New York citizen who allegedly controls Values Plus.
The Facts
During December 1986 and March 1987, Values Plus purchased 168,000 "Heart to Heart" stuffed teddy bears (the "teddy bears") from Windsor Toys for $1,050,000. Values Plus accepted delivery of the teddy bears, but allegedly still owes Windsor Toys more than $600,000.
Prior Proceedings
Values Plus has sued Windsor for breach of contract and fraud in the inducement in connection with the purchase of the teddy bears. In its answer, Windsor asserted two counterclaims. The second counterclaim charged Values Plus with fraud and sought punitive damages, alleging that Values Plus entered the contracts with the "intention of not paying the full price agreed to for the teddy bears and of defrauding Windsor Toys, Inc." In an opinion dated November 11, 1988, this court dismissed Windsor Toys's second counterclaim and its punitive damages claim, holding that it did not state a cause of action for fraud because the only fraud charged related to a breach of contract, 700 F.Supp. 6. Familiarity with that opinion is assumed.
On August 12, 1988, Windsor Toys brought a third-party complaint against the Rigberg defendants for their involvement in the teddy bears contracts. The third-party complaint sets out four counts:
1. Against Rigberg, who allegedly "entered into or caused [Values Plus] to enter into" teddy bear purchase contracts "with the intent of defrauding [Windsor Toys] and perpetrating fraud, illegality, or wrongdoing through [Values Plus]."
2. Against Rigberg, who allegedly entered into the teddy bear contracts with "the intention of not paying the full price agreed to for the teddy bears and of defrauding [Windsor Toys]."
3. Against Rigberg, d/b/a Values Plus, who allegedly is personally liable for Values Plus's failure to pay under the teddy bears contracts.
4. Against Rigberg, d/b/a Values Plus, who allegedly committed fraud by entering into the teddy bears contracts with "the intention of not paying the full price agreed to for the teddy bears and of defrauding [Windsor Toys]."
The Rigberg defendants have moved to dismiss all four counts.
Breach of Contract as Fraud
The fraud allegations in counts two and four are in substance no different from the fraud allegation in the second counterclaim. Pursuant to the holding and reasoning of this court's November 11, 1988 opinion, *438 therefore, counts two and four are dismissed.
Corporate Officer Liability for Corporation's Breach of Contract
Counts one and three seek to hold Rigberg personally liable for breaches of contracts entered into by Values Plus, a corporation Rigberg allegedly controlled. Because he was acting in his capacity as an officer, Rigberg cannot be held individually liable for the corporation's alleged breach of contract. See Puma Indus. Consulting v. Daal Assoc., Inc., 808 F.2d 982, 986 (2d Cir.1987); Brignoli v. Balch Hardy and Scheinman, Inc., 645 F.Supp. 1201, 1209 (S.D.N.Y.1986).
Moreover, Windsor Toys's third-party complaint contains no allegation that would justify piercing the corporate veil. In Weis v. Selected Meat Packers, Inc., the New York Appellate Division, Third Department, noted:
"Here, we conclude that Special Term was correct in its finding that plaintiff's complaint failed to state facts sufficient to permit a piercing of the corporate veil. To disregard the corporate form, it must be established not only that an individual controlled a corporation, but also that the corporation was used for the transaction of the shareholder's personal business [citation omitted]. Plaintiff's complaint merely alleges that Weiss had the sole and/or controlling ownership interest in the corporate defendants and that he controls the management and other activities of the corporations. These allegations, without more, fall short of establishing a prima facie case so as to permit disregard of the corporate form [citation omitted]."
91 A.D.2d 1085, 1086, 458 N.Y.S.2d 313, 314 (3d Dep't 1983); see also Dember Constr. Corp. v. Staten Island Mall, 56 A.D.2d 768, 769, 392 N.Y.S.2d 299, 300 (1st Dep't 1977) (dismissing complaint where plaintiff failed to allege that the individual defendant "enjoyed total domination over the defendant corporation and used that domination in order to commit the breach complained of").
Here, Windsor Toys does not even allege that Rigberg "controlled" Values Plus. The only allegations that come remotely close to identifying Rigberg's relationship with Values Plus are Windsor Toys's claims that Rigberg "does business as" Values Plus and that Rigberg "caused [Values Plus] to enter into" the teddy bear contracts. These allegations come nowhere near the standards set in Dember Construction and Weis.
Conclusion
For the reasons set forth above, the Rigberg defendants' motion is granted and the third-party complaint is dismissed.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586094/ | 176 So.2d 158 (1965)
In re J. A. HUGHES Applying for Adoption.
No. 1837.
Court of Appeal of Louisiana. Fourth Circuit.
June 7, 1965.
*159 Gaudin & Edwards, Robert D. Edwards, Gretna, for John E. Skeen, Jr., appellant.
No appearance for J. A. Hughes, appellee.
Before YARRUT, SAMUEL and BARNETTE, JJ.
CHRIS T. BARNETTE, Judge pro tem.
This began as a proceeding for adoption of two children under seventeen years of age by their step-father, J. A. Hughes, but while pending, was dismissed as to one of them. The children in question are the children of petitioner's wife by a former marriage to John E. Skeen, Jr. After being notified of the proposed adoption, John E. Skeen, Jr., father of the children, appeared and vigorously opposed the adoption. Proceedings were dismissed as to the older child, Kenneth Eugene Skeen. From a judgment of the Juvenile Court for Jefferson Parish granting adoption of the child Janet Marie Skeen as prayed for, her natural father, opponent, has appealed.
After the appeal had been lodged in this Court, counsel of record for Mr. Hughes, appellee, on March 5, 1965, filed a motion and obtained an order of this Court to withdraw as counsel upon the allegation that J. A. Hughes, appellee, had "requested and directed your Mover not to pursue this matter on appeal and that he does not desire your Mover to further represent him in these proceedings". Whereupon, J. A. Hughes, appellee, was notified of continuance of argument in this Court from April 6 to May 7, in order that he might have sufficient time to secure other counsel.
When the case was called for argument, the appellee made no appearance either through counsel or in person, and no brief has been filed in his behalf. Mrs. Hughes, his wife, mother of the child subject of this proceeding, appeared in person; and though she is not, strictly speaking, a party to this proceeding, for she is neither the petitioner nor opponent, this Court, without objection of appellant, granted her the courtesy of a hearing. When the case was called for argument before us, counsel for appellant offered to continue the case to allow further time for appellee to obtain counsel and offered on behalf of appellant to pay such counsel's fee. Mrs. Hughes declined the offer. We think it is significant that Mr. Hughes has shown so little concern about this appeal; and the personal appearance of his wife in this Court lends credence to our belief that it is she, more than Mr. Hughes, who desires the adoption.
The judgment granting the adoption was entered over the protest of the natural father of the child on authority of LSA-R.S. 9:422.1 which reads as follows:
"If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
"(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
"(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
"(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents. Added *160 Acts 1958, No. 501, § 1, as amended Acts 1960, No. 268, § 1; Acts 1962, No. 106, § 1."
John E. Skeen, Jr., and Marie Driggers Skeen were divorced in Harris County, Texas, August 22, 1949. Of their marriage two children were born; namely, Kenneth Eugene Skeen, July 5, 1947, and Janet Marie Skeen, September 1, 1948. Mrs. Skeen (now Mrs. Hughes) was awarded custody of the two children subject to visitation rights of the father; and Mr. Skeen was ordered by the court to pay $20 weekly for their support, payments to be made through the Probation Department of Harris County. He made payments during the balance of 1949 and the years 1950, 1951, and 1952, aggregating $980. Nothing more was paid until after the adoption proceeding was instituted. On July 17, 1964, while the adoption was pending, Mr. Skeen paid direct to Mrs. Hughes $3,120 "in full settlement of all past due child support", acknowledgment and receipt of which was signed by Mrs. Hughes and is filed in the record. The total arrearage was about $14,000.
Shortly after their divorce Mr. Skeen remarried; and in October, 1952, Mrs. Skeen married the petitioner, appellee J. A. Hughes, and moved from Houston to Lafayette, Louisiana.
Soon after Mr. Skeen's remarriage, his second wife became ill with tuberculosis, and it became necessary for him to leave Houston to provide hospital care for her in Denver where they remained a little over a year. During this time Mr. Skeen secured work as a plumber's helper at $1.20 per hour. During his sojourn in Denver his parents in Houston made some payments of child support for him. Apparently he personally made no payments during this period which he attributes to his low wages and expenses incident to his wife's illness.
Then, after his return to Houston from Denver, Mr. Skeen suffered a serious back injury, was hospitalized, and was more than a year in recovery. He testified that he had to learn to walk again. During the next three years, 1950-52, his work and payments were irregular and payments aggregated $980 from the date of divorce. After that no further payments were made.
We are convinced from the testimony that Mrs. Hughes sought diligently to keep her whereabouts unknown to Mr. Skeen. She strongly opposed his having any contact with his children, which she seeks to justify by the fact that he had not paid the child support as ordered and that his visits to the children were upsetting emotionally.
The testimony reveals a characteristic attitude of vindictiveness on the part of Mrs. Hughes toward Mr. Skeen, and Mr. Skeen frankly admits that he was very much at fault and his former wife was justified in divorcing him. The record also reveals that Mr. Skeen since learning the whereabouts of his children has made a sincere effort to atone for his unworthiness and become reacquainted with his children in the hope that they might learn to love and respect him againan effort which Mrs. Hughes resisted.
While in Houston Mr. Skeen sought the help of the sheriff's office in an attempt to locate the children, but to no avail. The Harris County Probation Office had no forwarding address and Mrs. Hughes' relatives gave no information except that they had moved to Louisiana. Thereafter in 1954 Mr. Skeen went to Opelousas and sought the help of the sheriff who located Mrs. Hughes and the children in Lafayette. Mr. Skeen called at their home; and according to the testimony of himself and Mrs. Hughes, an argument ensued over the payment of support and Mrs. Hughes closed the door on him. He left without seeing the children. Mrs. Hughes testified that he came to the home "drinking heavily" and caused a scene. When he returned to the Lafayette address they had moved leaving no forwarding address.
Thereafter Mrs. Hughes and the children were located in Bunkie and Mr. Skeen saw *161 his daughter Janet on the street momentarily. Following this incident he suffered a serious leg injury and was hospitalized a month, and after recovery went back to Bunkie and found the Hughes family gone. He heard no more from them until this proceeding was filed and he was notified by the attorney appointed by the court to represent him.
It is admitted by stipulation of counsel that Mr. Skeen also attempted to locate the children by a check of the schools through Sheriff Hebert of St. John the Baptist Parish, in 1962 and 1963, on the belief that they were in that vicinity.
Mrs. Hughes denied that their frequent moves were to avoid contact with Mr. Skeen, but were because of her husband's employment with an oil company. She does admit, however, that she did not want the children to have contact with him because he had not paid the support due and she felt that he had forfeited his right of visitation. She admits that she did not notify the Harris County Probation Office of her removal from Texas or her new address. She did say that about once a year when visiting in Houston, she would call the Probation Department to see if any payments had been made. She was not asked for a forwarding address and gave none.
The child Janet testified that she wanted to be adopted by Mr. Hughes for he was the only father she knew. She did express a willingness to visit her real father and to become acquainted with him, but her stepfather objected to her doing so and that she respected his wishes.
After this proceeding was filed and while pending hearing, the child Kenneth went voluntarily to live with his father, and the petition was withdrawn as to him.
Mr. Skeen requested a delay of a few months in this proceeding to allow his daughter time to come to know him as he really is and not as her mother has pictured him to her, in the hope that she can then decide more maturely if she wants to be adopted. In view of the child's age and maturity, we do not think this was an unreasonable request.
Mr. Skeen and his present wife have adopted three children and apparently have attained a degree of independence and security.
Under the facts of this case, which we have related in detail and proper sequence from a careful reading of the transcript of testimony, our conclusion that the adoption should not have been granted, we thought, was amply supported by the decision of the Supreme Court in In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963), and the Second Circuit Court of Appeal in In re LaFitte, 168 So.2d 837 (1964). But we find now that the Supreme Court, having granted writs in the LaFitte case, in an opinion handed down May 3, 1965, reversed the Second Circuit Court of Appeal and reinstated the judgment of adoption. See In re LaFitte, Applying for Adoption, No. 47,571 on the docket of the Supreme Court, 174 So.2d 804 (1965). In view of that decision we have reexamined our position in the instant case and are still of the opinion, under the facts here presented, that the judgment of the Juvenile Court for Jefferson Parish is in error and should be reversed. We think the factual situation here is significantly stronger in support of the opposition to adoption than in the LaFitte case, and for this reason the LaFitte case does not control the conclusion here.
There is no inherent right of adoption. It is a creature of the law and exists only where the law expressly grants it and then subject to the restrictions and limitations which the law imposes. It may be considered a privilege or right bestowed by authority of the state. For example, there was no general law of the State of Louisiana authorizing adoptions prior to 1865. Article 35 of the Civil Code of 1808 stated: "Adoption which was authorized by the laws heretofore in force, shall be and is hereby abolished." This article was repeated (Art. 232) in the Civil Code of *162 1825. Therefore, all adoptions in Louisiana prior to Act 48 of 1865 were by special dispensation of the State by act of the legislature, an example of which is Act 65 of 1837.
Beginning with Act 48 of 1865 there have been several acts of the legislature providing general authority for adoptionall, however, subject to certain formalities, restrictions, and limitations having to do with forced heirship, illegitimate children, age of parties, race, etc.[1] In addition to these conditions most of the acts have contained requirement of consent of the child's living parents. In certain cases of surrender or abandonment the consent may be given by an agency or institution. Act 44 of 1934 amended Act 46 of 1932 to allow the parent to whom custody had been granted in divorce cases to give consent without the concurrence of the other parent. This provision carried over into Act 233 of 1936. This legislative waiver of consent of the parent against whom a custody judgment had been granted in a divorce decree obviously could lead to serious abuse. It did not even contemplate that such party be the guilty spouse, and it is generally known that in many cases custody of small children is given to the mother even though the father may be equally as worthy and morally suited. Evidently the legislature saw this danger, for in 1938 it passed Act 428 which provided that where the child has not been legally surrendered or removed from the custody of its parents by a court of competent jurisdiction "* * * a copy of the petition shall be served on each of the living parents * *. If the addresses of either or both parents are unknown, the State Department of Public Welfare shall make efforts to locate the parents if possible and obtain the necessary consent to the proposed adoption. * * *" (Emphasis added.)
Experience proved that some parents when located would neither consent nor oppose the adoption, since consent was "necessary" adoption could not be completed even though the parent was utterly indifferent and unworthy. So in 1942 the legislature enacted a new adoption law, Act 154. It provided for service as in civil proceedings on the parents of the child unless the child had been surrendered by them for adoption or adjudged abandoned, and in cases of absence or whereabouts unknown, the appointment of a curator ad hoc was authorized on whom service could be made. Further the State Department of Public Welfare was required to locate them, if possible, to inform them of the proceedings and "to determine their attitude toward the proposed adoption". This modification of language was to correct the weakness of the prior act, which apparently made consent "necessary" in all cases, and to vest in the court discretionary authority to act when a parent showed no interest and neither opposed nor consented.
It was under this statute that Green v. Paul, 212 La. 337, 31 So.2d 819 (1947), was decided by the Supreme Court. The Court there, after discussing State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163 (1947), which had held consent of the parent must continue to the final decree of adoption, reaffirmed its position that there can be no adoption without this continuing consent. The Court said in the Green case at p. 821 of 31 So.2d:
"* * * It has been firmly settled by this court that adoption is a creature of statute; that, this being so, it is only what the law makes it and that, to establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. See Succession of Pizzati, *163 141 La. 645, 75 So. 498; In re Brands' Estate, 153 La. 195, 95 So. 603; Succession of Brand et ux., 162 La. 880, 111 So. 267; State ex rel. Monroe et ux. v. Ford, 164 La. 149, 113 So. 798; Hardy v. Mobley, 183 La. 668, 164 So. 621 and Owles v. Jackson, 199 La. 940, 7 So.2d 192.
"* * * In Louisiana, the jurisprudence is settled that consent of the natural parents is necessary (see authorities supra) as it has either been specifically required or contemplated by our statutes. Acts Nos. 31 of 1872; 173 of 1910; 48 of 1924; 46 of 1932; 44 of 1934; 233 of 1936; 428 of 1938 and 154 of 1942."
The necessity for continuing consent was reaffirmed in In re Byrd, 226 La. 194, 75 So.2d 331 (1954), and Madere v. Long, 231 La. 498, 91 So.2d 771, after the passage of Act 228 of 1948 (LSA-R.S. 9:421-9:441).
This act, 228 of 1948 (LSA-R.S. 9:421-9:441), as amended, is the present adoption law. It has substantially the same provisions as the prior act on service and notification of parents unless they have legally surrendered the child for adoption or it has been declared legally abandoned. Like the prior act, the "attitude" of the parent toward the proposed adoption shall be determined if possible. Thus, it would seem that it was intended that the court have some discretion when there is no opposition, but want of express consent. But where there is opposition as in the Byrd case and Madere v. Long, supra, there can be no adoption. The requirement for continuing consent as held in Green v. Paul, supra, and In re Byrd, supra, was modified by Act 268 of 1960 (LSA-R.S. 9:429) to provide that consent once given cannot be withdrawn after entry of interlocutory decree, except for cause.
Act 501 of 1958 (LSA-R.S. 9:422.1) allows the adoption to be granted without the consent of a parent when adoption is sought by a step-parent whose spouse has been awarded custody of the child and the other parent has refused or failed to comply with a court order of support for a period of three years or more. This was amended by Act 268 of 1960 to extend this right to a grandparent and reduced the time of default in support payments to one year. It is under the authority of this section (LSA-R.S. 9:422.1) that the right to adopt in the instant case without the consent and over the opposition of the child's father is claimed. The court below applied the provisions hereof strictly and granted the adoption.
The Supreme Court discussed the application of LSA-R.S. 9:422.1 in In re Ackenhausen, supra, and most recently in the LaFitte case. We thoroughly agree with the Court's statement in the Ackenhausen case, repeated in LaFitte:
"The basis for requiring the consent of parents to adoption is the natural right of the parent to his child. If a parent does not fulfill his parental responsibilities to his child, there is a reasonable basis for dispensing with his consent. We think the Legislature here was attempting to define conduct which would be a failure of the parent to fulfill his responsibility of support of his child, whereby the parent would forfeit his parental rights."
We agree that parents who have demonstrated over a long period of time an attitude of indifference and total disregard of their responsibilities to their children should forfeit their parental rights. The foregoing review of the statutes and jurisprudence of the State points up the reluctance of the legislature and the courts to leave the final dissolution of this sacred relationship in the discretionary authority of the court on the basis of worthiness. It emphasizes the concept of necessity of parental consent and the State's insistance that any act permitting forfeiture of this parental right by judicial decree be narrowly construed. In extreme cases of unworthiness *164 the decision might safely rest with the courts; but in borderline cases, where it is difficult for the court to determine the relative faults and worthiness of the parents, injustice could result. A just decision in such cases is made more difficult by the extreme emotional involvement which dictates the behavior of estranged parents. The courts cannot wholly escape the impact of this emotional pressure. So the legislature has attempted by LSA-R.S. 9:422.1 to lay down a test of parental worthiness, but a literal application of the test of payment or nonpayment as ordered could lead to harsh consequences. We do not think this is the intent of the law, when viewed in the light of the historical concept discussed above. We agree with the Supreme Court that it must be applied with caution and much consideration should be given to the cause of the failure to pay support as ordered. If the act is intended to be a test of parental worthiness, it would seem just and reasonable that consideration be given to the obstacles which a vindictive parent with custody has placed between the other parent and the child which render a demonstration of responsibility and worthiness extremely difficult, if not, as in this case, practically impossible.
It is true, as the trial judge observed, that if Mr. Skeen did not know where his children were, he did know where to find the Probation Department of Harris County, to whom he was ordered to make payments of support; but we do not think his failure to do so, under the circumstances of this case, is a fair test of his responsibility and worthiness as a parent. We conclude, therefore, that his failure to pay as ordered was not without just cause.
It should be pointed out further that the adoption law provides in LSA-R.S. 9:432, Subs. B:
"The court, after hearing and after taking into consideration information from all sources concerning the adoption, may enter a final decree of adoption; or it may deny the adoption. * * *" (Emphasis added.)
The use of the word "may" clearly reaffirms the historical concept that there is no inherent right to adopt, and the court, being the organ of the State, may or may not grant the adoption as the best interests of the child indicates.
In the instant case, we are not convinced that it would serve the best interests of Janet Marie that she be adopted at this time. From the confidential report of the Welfare Department, which is in the record, it is revealed that the Skeen children were allowed by their mother, until twelve years of age, to believe Mr. Hughes was their real father. This lends support to the conclusion we have reached that she concealed them from him and did everything she could to avoid contact. It must have been a severe emotional shock to them to learn their true identity. Children have rights too, and one of them is the right to know and love their parents. It should not be denied them except when the parent has proven himself unworthy of their love. Failure to make support payments in the face of the obstacles here presented is not, of itself, sufficient proof of that unworthiness.
Janet Marie will be seventeen years old on September 1, 1965, and should be mature enough emotionally to make this important decision for herself after she has had reasonable time and opportunity to become reacquainted with her father. This is not a case of an infant whose childhood lies before him, whose decision must be made by parents. The childhood of Janet Marie lies behind and she now stands on the threshold of mature womanhood. It is highly improbable that any disadvantage to her will result from a reasonable delay. She will continue to live with her mother and step-father and receive all the advantages they have to offer. In a relatively short time she will be old enough to execute on her own behalf, without the *165 consent of her parents, an act of adoption under LSA-R.S. 9:461. Furthermore, as indicated above, we are not so sure that Mr. Hughes now wants the adoption to be consummated. The best interest of the child would be served by resolving all these doubts against adoption at this time.
For these reasons, the judgment of the Juvenile Court for Jefferson Parish decreeing a final judgment of adoption in favor of J. A. Hughes of the minor Janet Marie Skeen and changing her name to Janet Marie Hughes is annulled and set aside without prejudice at appellee's cost.
Judgment annulled and set aside.
NOTES
[1] See Acts 48 of 1865, 17 of 1867, and 64 of 1868 incorporated in Revised Statutes of 1870, Sections 2322-2328. Civil Code of 1870, Article 214; Acts 31 of 1872; 48 of 1924; 46 of 1932; 44 of 1934; 233 of 1936; 428 of 1938; 154 of 1942; 228 of 1948 (LSA-R.S. 9:421-9:441). (Acts relating to adoptions of persons over 17 years of age and acts relating to foundlings, surrender and abandonment are not included.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586124/ | 33 So.3d 271 (2010)
STATE of Louisiana
v.
Alvin C. HYMAN.
No. 09-KA-409.
Court of Appeal of Louisiana, Fifth Circuit.
February 9, 2010.
*274 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Michael G. Morales, Churita Hansell, Assistant District Attorneys, Gretna, LA, for Appellee, The State of Louisiana.
Kevin V. Boshea, Attorney at Law, Metairie, LA, for Appellant, Alvin C. Hyman.
Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
SUSAN M. CHEHARDY, Judge.
On September 26, 2006, the Jefferson Parish Grand Jury indicted defendant, Alvin C. Hyman, on one count of second degree murder, in violation of La. R.S. 14:30.1. Defendant pled not guilty at arraignment.
Defendant was tried by a twelve-person jury on January 13, 14, and 15, 2009. The jury returned a verdict of guilty of the lesser-included charge of manslaughter, a violation of La. R.S. 14:31. On March 6, 2009, the trial court sentenced defendant to 40 years at hard labor. Defendant filed a motion to reconsider sentence, which the court denied. Thereafter, defendant filed a timely motion for appeal, which the trial court granted on March 6, 2009.[1]
Facts
In the early morning hours of August 6, 2006, Leslie Daigrepont was at Alvin C. "Chris" Hyman's apartment when Mr. Hyman accused her of stealing narcotics and money from him. According to Mrs. Daigrepont, Mr. Hyman grabbed her by the throat, threw her to the floor, and attempted to "strip search" her. Mrs. Daigrepont escaped the apartment when someone unexpectedly knocked at Mr. Hyman's front door.
When she returned to her house, Mrs. Daigrepont described the confrontation to her husband, Joshua Daigrepont, and, her brother, Dirk Guidry. Although Mrs. Daigrepont denied Mr. Hyman's accusations while he was questioning her, she admitted to her husband and brother that she had, in fact, stolen narcotics and money from Mr. Hyman earlier that morning.
Later that morning, Mrs. Daigrepont was speaking on the telephone with Leslie Boyer, Mr. Hyman's girlfriend, when Mr. Hyman commandeered the telephone to tell Mrs. Daigrepont that she and her family were "dead." Mrs. Daigrepont's brother, Dirk Guidry, then informed Mr. Hyman that he was coming to Hyman's apartment to "beat his ass." Mr. Hyman accepted the challenge, agreeing to meet Mr. Guidry there. Mr. Guidry and Mr. Daigrepont then drove to Mr. Hyman's residence. Mrs. Daigrepont did not go with her husband and brother.
Joshua Daigrepont confirmed that his wife told him about her confrontation with Hyman. He verified that his wife was *275 talking with Ms. Boyer on the telephone when Hyman threatened his wife and her family. Mr. Daigrepont confirmed that his brother-in-law, Mr. Guidry, retorted that he would be waiting at Hyman's house for him.
Mr. Daigrepont then drove with Mr. Guidry to Hyman's house at about 9:00 a.m. They knocked on the door of Mr. Hyman's second floor apartment and shouted for him to open the door. When they received no response, Mr. Daigrepont and Mr. Guidry went downstairs to Sharamie Brewer's apartment, where they waited for about 20 to 30 minutes. As they were leaving Ms. Brewer's apartment, Hyman arrived at the apartment complex.
When Mr. Hyman exited the passenger side of the car, he was holding a gun. Mr. Daigrepont saw the weapon and ducked between parked cars, but Mr. Guidry began yelling at Mr. Hyman.
Mr. Daigrepont testified that Mr. Hyman then raised the gun and pulled the trigger twice, but the weapon failed to discharge. Next, Mr. Hyman turned toward the car and asked an occupant whether there were any bullets in the gun. Hyman then turned back toward Guidry and fired a shot. Immediately, Hyman got back into the car.
Mr. Daigrepont testified that, after Mr. Hyman was in the vehicle, he fired a shot through the car's window at Mr. Daigrepont, who was crouched between parked cars. Mr. Daigrepont was unharmed.
Sharamie Brewer witnessed the shooting from the window of her apartment at 126 Athania Parkway. She heard Mr. Guidry and Mr. Hyman arguing in the parking lot of her apartment complex but she could not make out what they were saying. She saw Mr. Hyman get out of a car, point a gun, and shoot Mr. Guidry.
Debbie Dawson testified that, on August 6, 2006, she lived at 124 Athania Parkway. She knew Mr. Hyman, who lived in the next building at 126 Athania Parkway. At 5:30 a.m. that morning, Ms. Dawson heard loud voices emanating from Mr. Hyman's building but she could not hear what the man and the woman were saying.
Later that morning, Ms. Dawson saw two men, who she did not know, waiting in front of Mr. Hyman's building. She overheard the men talking angrily about a confrontation between Mr. Hyman and the sister of one of the men. Ms. Dawson assumed the fight to which the men were referring was the argument she had heard earlier that morning.
Shortly thereafter, Ms. Dawson, from her second floor bedroom window, saw Mr. Hyman arrive at his apartment complex. He was riding in the passenger seat of a car, other than the one that he usually drove. Mr. Hyman exited the vehicle with a gun in his hand and started shouting at the two men. He challenged the men to "come over here" and to "handle this like a man."
Mr. Hyman then pointed the gun at Mr. Guidry. Ms. Dawson heard the gun click two times then fire. Mr. Guidry fell to the ground immediately. Ms. Dawson called 9-1-1 to report the shooting then attempted to render assistance. Ms. Dawson testified that the altercation happened in less than two minutes.
Devin Doran, who was incarcerated on an unrelated charge at the time of trial, testified that she had known Alvin Hyman for a couple of months before the shooting. On the morning of August 6, 2006, Ms. Doran and her male friend, Tracy, ran into Mr. Hyman as he left a bar. He asked them for a ride home so they drove him to his apartment building. When they arrived, two men were standing in front of the building. Neither of those men had a *276 gun. To her and Tracy's shock, Mr. Hyman got out of the car and shot the "little dude." Mr. Hyman re-entered the car, and told Tracy to drive him to another place, which Tracy did. Ms. Doran testified that she had no further contact with Mr. Hyman.
Leslie Daigrepont, Joshua Daigrepont, Leslie Boyer, Sharamie Brewer, Debbie Dawson, and Devin Doran viewed a photographic lineup provided by the Jefferson Parish Sheriffs Office at separate times. After viewing the lineup, each witness identified defendant, Alvin "Chris" Hyman, as the shooter.
Once Mr. Hyman was identified as a suspect, Deputy Verloin Degruy of the Jefferson Parish Sheriffs Office worked with defendant's cellular telephone company to locate his phone by using a global positioning system (GPS). That information allowed Detective Gorumba to narrow his search for Mr. Hyman to the residence of Mary Spaulding on Elizabeth Avenue.
When the police arrived, Ms. Spaulding gave written consent for police to search her house. The officers located defendant in the rear bathroom and arrested him immediately.
At trial, Mary Spaulding testified that defendant called her that day asking her to pick him up from somewhere in New Orleans. When she picked Hyman up, he was wearing a hat and a wig. Defendant admitted that he shot Mr. Guidry but told Ms. Spaulding that Guidry had pulled a gun on him and was going to shoot him. During the search of Spaulding's house, Detective Gorumba recovered a brown wig.
Several police officers involved in the homicide investigation testified for the State at trial. Sergeant Billy Lewis identified a tape recording of the 9-1-1 call associated with the homicide. The recording was played for the jury. Sergeant Lewis verified that the call was initiated at 8:42 a.m., and the first police unit arrived at the scene at 8:47 a.m.
Detective Timothy Anclade was a patrolman with the Jefferson Parish Sheriffs Office on August 6, 2006, who was dispatched to 126 Athania in Metairie at 8:44 a.m. on that date. When he arrived at the scene five minutes later, he found a white man lying on his back in the parking lot. Detective Anclade secured the scene. Next, he interviewed a witness who said a vehicle pulled up, someone exited the vehicle, shot the victim, and left in the same vehicle. The witness gave Anclade the shooter's name, which Anclade passed on to the homicide division.
On August 6, 2006, Captain Steve Buras was assigned to the Persons Division, which investigates homicides, robberies, and rapes. At the crime scene, Captain Buras recovered a spent .9 mm cartridge casing in the parking lot, 45 to 50 feet south of where the body was discovered, and a cellular telephone and a baseball cap.
Sergeant Donald Meunier, a homicide investigator, walked the perimeter of the murder scene and found no other ballistic evidence. Detective Meunier prepared a search warrant for defendant's apartment at 126 Athania Parkway, Apartment C. However, no firearms were recovered.
Dr. Fraser Mackenzie, an expert in pathology and forensic pathology, performed an autopsy on Dirk Guidry's body. Dr. Mackenzie determined that Dirk Guidry's death was a homicide caused by a gunshot wound to the chest that perforated the left lung and heart and lodged in the victim's back. Dr. Mackenzie recovered the bullet and turned it over to a Jefferson Parish Crime Scene technician.
*277 Captain Tim Scanlan, the assistant director of the Jefferson Parish Sheriffs Office Crime Lab, is an expert in tool mark examination, crime scene reconstruction, trace analysis, forensic science, and crime scene processing. He examined the lead projectile recovered from the victim and the spent bullet casing. He determined that the projectile had a lead core that was consistent with .38 caliber class ammunition and the spent casing was consistent with the same class of ammunition.
Furthermore, Captain Scanlan testified that a gunshot residue test was performed on the victim's hands in order to determine whether he had handled or discharged a gun. The test produced a negative result. Toxicology tests of Dirk Guidry's blood revealed marijuana, cocaine, morphine, hydrocodone, and 6-0-monoacetylmorphine.
At trial, defendant called Leslie Boyer to testify. Ms. Boyer testified that she had known Dirk Guidry since high school. On the morning of the shooting, she was involved in telephone conversations with Alvin Hyman, Leslie Daigrepont, and Dirk Guidry. Ms. Boyer testified that Mr. Hyman did not threaten Mrs. Daigrepont or her family during those conversations. Further, Ms. Boyer initiated a three-way call between Mr. Hyman and Mr. Guidry. According to Ms. Boyer, during that conversation, Mr. Guidry informed them that he was waiting at Hyman's house with a gun. Ms. Boyer also reported that, according to Mr. Hyman, while they were arguing in front of his house, he saw Mr. Guidry lift his shirt and thought Mr. Guidry was pulling a gun from his waistband.
Edward "Eddie" Guy, a licensed investigator, also testified on defendant's behalf. He stated that he went to the scene to measure pertinent distances. Mr. Guy noted that there is a dumpster next to the driveway of the apartment complexes that would have obscured the view of the murder scene from Sharamie Brewer's first floor apartment.
Based on the testimony and evidence, the twelve-person jury found defendant guilty of manslaughter. Defendant appeals his conviction and sentence and assigns seven assignments of error for our review.
In defendant's fourth and fifth assignments of error, he challenges the sufficiency of evidence: the verdict of manslaughter is contrary to the law and the evidence and the district court erred in denying defendant's motion for post-verdict judgment of acquittal. When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1070, writ denied, 05-1381 (La. 1/13/06), 920 So.2d 233. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. Id.
The constitutional standard for testing the sufficiency of evidence, as 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 beyond a reasonable doubt. The question of sufficiency of the evidence is properly raised in a motion for post-verdict judgment of acquittal. State v. Pearson, 07-332, p. 12 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 653.
*278 In this case, defendant was convicted of manslaughter under La. R.S. 14:31. La. R.S. 14:31(A)(1) provides, in pertinent part, that manslaughter is:
A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed.
On appeal, defendant does not deny that he shot Dirk Guidry, but insists that he acted in self-defense. Accordingly, defendant does not argue that the State failed to prove the elements of manslaughter but he maintains that the prosecution failed to prove, beyond a reasonable doubt, that the homicide was not in self-defense.
When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982); State v. Theriot, 07-71, p. 13 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715. According to La. R.S. 14:20(1), a homicide is justifiable "[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger."
The determination of a defendant's culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. Theriot, 07-71 at 12, 963 So.2d at 1020. "`[T]he lack of a weapon is not dispositive of the issue of self-defense, because it is the reasonableness of the apprehension and not the actuality of danger that determines the question of self-defense under La. R.S. 14:20.'" Theriot, supra, quoting State v. Patorno, 01-2585, p. 11 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 148.
The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Theriot, supra. The trier-of-fact shall evaluate the witnesses' credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Singleton, 05-622, p. 7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 651. It is not the function of the appellate court to assess the credibility determinations of the trier of fact or to reweigh the evidence. Id.
In the instant case, defendant offered Leslie Boyer's testimony to show that he did not threaten Mr. Guidry or the Daigreponts over the telephone but that the victim actually threatened him. On cross-examination, however, Ms. Boyer admitted that she told police she heard defendant tell Mrs. Daigrepont, "`I'm going to get you, b* * *h. I'm going to get you, you wait and see. You stole my coke.'"[2]
Conversely, Mrs. Daigrepont stated that, while they were on the telephone, she did not hear Mr. Guidry say anything to defendant about a weapon. Joshua Daigrepont testified that he did not hear *279 Mr. Guidry say anything to defendant over the telephone about a gun.
Mr. Daigrepont further testified that Mr. Guidry did not bring a gun to Mr. Hyman's apartment. Daigrepont testified that Mr. Guidry did not have a gun at all on the day of the incident. Furthermore, Mr. Daigrepont did not see a gun anywhere around Mr. Guidry after he was shot. He reiterated that he and Mr. Guidry planned only to fist-fight with defendant that day.
As defendant points out, both Mr. and Mrs. Daigrepont have criminal records and asserts that the couple's testimony was unreliable, and not believable. As this Court has noted many times, however, questions of credibility are within the purview of the jury and it is not our function to assess the credibility determinations of the trier of fact or to reweigh the evidence. State v. Singleton, supra.
Furthermore, even if the jury did not rely on the Daigreponts' testimony, there were at least three other witnesses whose testimony disproved defendant's self-defense claim. Devin Doran, who drove defendant to the scene of the shooting, testified that no words were exchanged between defendant and the two men that were waiting for him at his apartment complex; defendant simply got out of her car and shot one of the man. Ms. Doran did not see either the victim or the other man holding a gun, and defendant did not tell her that either of the men had a gun.
Sharamie Brewer, who witnessed the shooting from her apartment window, testified that she did not see Mr. Guidry or Mr. Daigrepont with a gun when they were waiting for defendant near her apartment. She also testified that she did not see Dirk Guidry with a firearm at the time of the shooting.
Debbie Dawson also witnessed the shooting from her nearby apartment. Prior to defendant's arrival at the scene, Ms. Dawson heard Mr. Guidry and Mr. Daigrepont talking. They appeared to be angry about the confrontation between defendant and Mrs. Daigrepont. Nevertheless, when defendant arrived in the parking lot, he was the one who acted in a confrontational manner. According to Ms. Dawson, defendant shouted at Guidry and Daigrepont to "come over here" and "handle this like a man." Ms. Dawson testified that defendant pointed his gun at Mr. Guidry and pulled the trigger twice before it actually fired, which incidentally specifically corroborates Mr. Daigrepont's testimony.
Ms. Dawson stated that she did not see Mr. Guidry or Mr. Daigrepont with a gun that morning. Moreover, when Ms. Dawson attempted to give Mr. Guidry medical assistance after the shooting, she did not see a gun near his body.
Detective Anclade, the first police officer to arrive at the scene, testified he did not see a weapon on or near the victim's body. Finally, none of the witnesses testified that Mr. Guidry attempted to attack defendant.
Based the foregoing testimony, we find that the State met its burden of proving, beyond a reasonable doubt, that defendant did not act in self-defense. Accordingly, we find no merit in these assignments of error.
Upon finding that the conviction was based upon sufficient evidence to prove that defendant was guilty, beyond a reasonable doubt, of manslaughter, we return to defendant's first and second assignments of error: first, the "prosecution did not comply with its discovery requirements as it applies to the exculpatory/impeachment information prior to trial," and second, "the district court did err in the denial of the motion for new trial."
*280 In these two assignments, defendant argues that his due process rights were violated by the State's failure to provide to him before his trial exculpatory evidence regarding Joshua Daigrepont's prior guilty pleas and the trial court erred in denying his motion for new trial based on this issue. Specifically, defendant complains the State did not inform him that: (1) Mr. Daigrepont had a felony charge nolle prossed in December of 2008; and (2) Mr. Daigrepont pled guilty to possession of heroin and felony theft in December, 2008 with the State's assurance that he would not be multiple billed for either conviction.
On appeal, defendant further complains that the State allowed Joshua Daigrepont to give perjured testimony regarding his criminal history without correction. The State responds that it made its entire file available to the defense prior to trial, and that it made the defense aware of Mr. Daigrepont's criminal record. The State further noted that documentation of Mr. Daigrepont's criminal record was available to the defense with or without the State's involvement. Finally, the State presented testimony from the prosecutor in charge of the cases that led to Daigrepont's 2008 guilty pleas, who confirmed that he did not make a deal with Daigrepont in exchange for his testimony in this matter.
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the prosecution of evidence favorable to the accused after receiving a request for it violates a defendant's due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. The Brady rule includes evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may be determinative of guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); State v. Knapper, 579 So.2d 956, 959 (La.1991).
Regardless of whether there is a request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Bagley's touchstone of materiality is a "reasonable probability" of a different result.
The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether, in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is shown when the State's evidentiary suppression "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
Here, in his pre-trial motions, defendant requested exculpatory evidence from the State. In response, the State provided the defense with information regarding Mr. Daigrepont's (and other witnesses) criminal history. Specifically, the State reported, "Mr. Daigrepont was not offered any plea bargain in exchange for his testimony in this case."
At trial, Joshua Daigrepont testified that he was currently serving a four-year sentence for (1) possession of heroin, (2) *281 felony theft, (3) resisting arrest, and (4) possession of drug paraphernalia. Mr. Daigrepont testified that the instant resisting arrest conviction resulted from the original 2006 simple escape charge. He also admitted that he had a 1995 conviction for possession with intent to distribute marijuana.
On cross-examination, Mr. Daigrepont further admitted to convictions for (1) disturbing the peace in 1995 and (2) a marijuana charge involving Dirk Guidry in 1995. When questioned about the felony theft charge to which he pled guilty a month prior to the instant trial, Mr. Daigrepont testified that he had received a two-year sentence for that offense, and that he was not multiple billed.
At the conclusion of Mr. Daigrepont's testimony, defense counsel moved for a mistrial. Counsel argued that he had specifically asked the State about any deals made with witnesses for their testimony, and the State misinformed him because, in December 2008, Mr. Daigrepont had not been multiple-billed on his theft or heroin charges and a felony escape charge against him had been nolle prossed.
The prosecutor responded that he provided defense counsel with Mr. Daigrepont's local, state, and FBI "rap sheets" and Mr. Daigrepont's recent guilty pleas to possession of heroin, possession of drug paraphernalia, and theft of goods. The prosecutor reiterated that Mr. Daigrepont had not been offered any plea bargains in exchange for his testimony at the murder trial.
Furthermore, Jeff Hand, a former Jefferson Parish Assistant District Attorney, testified thereafter that he was the assistant district attorney involved in Mr. Daigrepont's most recent guilty pleas. He stated that he chose not to multiple-bill Mr. Daigrepont because the previous felonies were almost ten years old and the district attorney's office must use its discretion in order to move cases. Mr. Hand stated that Mr. Daigrepont's guilty pleas were not associated with the murder case. Had that been the case, he would not have allowed Mr. Daigrepont to plead guilty and be sentenced before he had testified in this case. Furthermore, he understood that because Mr. Daigrepont was related to the victim in the murder case, he would have a compelling reason to testify without the offer of a deal from the State. The trial judge denied defendant's motion for mistrial and subsequent motion for new trial on this basis.
Here, we find that the State adequately complied with the requirements of Brady. First, the record reveals that the State turned over the criminal histories requested by the defense, including Mr. Daigrepont's latest guilty pleas. Second, as defense counsel demonstrated at trial, further information on the State's witnesses was readily available from the Jefferson Parish Clerk of Court.[3] Third, the former prosecutor testified that he did not make a deal with Mr. Daigrepont in exchange for testimony in this case; he chose not to multiple bill Mr. Daigrepont for reasons unrelated to this case. Finally, defense counsel, in an attempt to discredit Mr. Daigrepont, thoroughly cross-examined *282 him about his prior convictions and any deals that he could have made with the State. Upon review, we find that the trial judge did not err in denying defendant's motion for mistrial or motion for new trial.
On appeal, defendant further argues that his conviction should be reversed under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), because the prosecutor allowed Mr. Daigrepont, a key State witness, to give perjured testimony at trial without correction. The State argues that defendant failed to preserve the perjury issue for appeal, since he failed to raise it at trial. See, State v. Singleton, 05-634, pp. 9-10 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 809, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532; La. C.Cr.P. art. 841.
We agree. Furthermore, even if we were to address the merits of defendant's argument, we find no error. The Louisiana Supreme Court described the provisions of Napue as follows:
To prove a Napue claim, the accused must show that the prosecutor acted in collusion with the witness to facilitate false testimony. When a prosecutor allows a state witness to give false testimony without correction, a conviction gained as a result of that perjured testimony must be reversed, if the witness's testimony reasonably could have affected the jury's verdict, even though the testimony may be relevant only to the credibility of the witness. Id. at 269, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Furthermore, fundamental fairness to an accused, i.e., due process, is offended "when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id. When false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
State v. Broadway, 96-2659, p. 17 (La.10/19/99), 753 So.2d 801, 814, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).
Here, we cannot say that Mr. Daigrepont gave false testimony regarding his criminal record. He admitted to numerous prior convictions when questioned by the prosecutor and defense counsel. Furthermore, the record is devoid of any mention of collusion between the State and Mr. Daigrepont regarding any issue, including his criminal record. If this issue had been preserved, it would have no merit.
In his next assignment of error, defendant argues that the trial judge erred in denying a mistrial because, during trial, the State improperly introduced "other crimes" evidence without proper notice under State v. Prieur, 277 So.2d 126, 130 (La.1973).[4] Here, defendant refers to Leslie *283 Daigrepont's testimony that defendant used physical violence against her on the morning of the shooting. The State contends the evidence complained of was properly admitted as res gestae.
During Mrs. Daigrepont's trial testimony, defense counsel objected and moved for a mistrial, arguing that the State had not given proper notice of its intention to introduce "other crimes" evidence of defendant's physical attack on Mrs. Daigrepont. The trial judge overruled defense counsel's objection and denied his motion for mistrial.
Generally, evidence of "other crimes," or bad acts committed by a criminal defendant, is inadmissible at trial due to the risk of grave prejudice to the defendant. La. C.E. art. 404 B(1); State v. Prieur, 277 So.2d at 128; State v. Williams, 01-1007, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030. But evidence of "other crimes" may be introduced if it is independently relevant or when it relates to conduct formerly referred to as res gestae that "constitutes an integral part of the act or transaction that is the subject of the present proceeding." La. C.E. art. 404 B(1). Res gestae events constituting "other crimes" are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).
The res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime, if a continuous chain of events is evident under the circumstances. State v. Taylor, 01-1638 at 10-11, 838 So.2d at 741. The res gestae doctrine is designed to allow the story of the crime to be told in its entirety, by proving its immediate context of happenings in time and place. Taylor, 01-1638 at 11, 838 So.2d at 742. Furthermore, the State is not required to provide the defendant with notice before introducing res gestae evidence. See La. C.Cr.P. art. 720; State v. Ridgley, 08-675, p. 13 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 697.
Here, Mrs. Daigrepont's testimony that defendant physically attacked her at his apartment was integral to the chain of events that led to Dirk Guidry's death. Mrs. Daigrepont stole cocaine and money from defendant, which triggered his physical attack on her. Mrs. Daigrepont's description of defendant's attack caused her husband and brother to pursue defendant, which led to defendant's fatal shooting of her brother, Dirk Guidry. The testimony at issue completed the story of the crime. This testimony was res gestae, defendant was not entitled to prior notice, and the trial court did not err in denying his mistrial motion. Accordingly, we find that this assignment of error without merit.
In his final assignments of error, defendant argues that his sentence in this matter is excessive and the district court erred in denying his motion to reconsider sentence. Specifically, defendant argues that the trial court abused its discretion in *284 sentencing him to 40 years at hard labor, the maximum term under the manslaughter statute, La. R.S. 14:31.[5] Defendant points out that his criminal history was minimal, whereas the victim had numerous criminal convictions. The State responds that the sentence does not constitute an abuse of discretion.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, citing State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id., citing State v. Bonanno, 384 So.2d 355, 357 (La.1980).
A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Pearson, 07-332, p. 16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.
On appellate review of a sentence, the only relevant question is "`whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.'" State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, 608 (per curiam) (citations omitted). To be considered excessive, a penalty must be so grossly disproportionate to the severity of the crime that it shocks the sense of justice, or makes no reasonable contribution to acceptable penal goals, and therefore, constitutes nothing more than the needless imposition of pain and suffering. State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citation omitted).
Here, the trial court judge gave extensive reasons for imposing the maximum sentence. First, he noted that the victim did not have a gun at the time of the shooting. Second, he felt that, when defendant's gun failed to fire the first two times, defendant had an opportunity to withdraw from the conflict, but he consciously chose to fire the third and fatal shot. Third, the shooting was deliberate, and was not self-defense. Fourth, the judge further noted that defendant created a risk to more than one person by firing on the victim. He stated he had considered the sentencing guidelines under La.C.Cr.P. art. 894.1, and felt that "any lesser sentence that I give you would deprecate the seriousness of this offense."
Defense counsel filed a motion to reconsider sentence, challenging the "excessive and harsh nature of the sentence imposed." Counsel also made an oral objection to "the imposition of the maximum sentence as being unwarranted." The judge denied defendant's motion.
We find no error in the trial court's broad discretion in imposing this sentence of 40 years. Defendant was initially charged with second degree murder, which carries a mandatory life sentence. La. R.S. 14:30.1. Further, the record reveals sufficient evidence to support a conviction for second degree murder.
*285 Further, as the sentencing judge noted, defendant had an opportunity to withdraw from the confrontation when his gun failed to fire, but he did not. More importantly, the evidence reflects that defendant was not acting in self-defense. Additionally, defendant has at least one prior felony conviction. Finally, the victim's criminal record is irrelevant to the trial court's determination of sentence. Based on the foregoing, these two assignments of error lack merit.
Finally, as is our routine practice, the record was reviewed for errors patent, pursuant to La.C.Cr.P. art. 920. Our review reveals no errors patent.
Based on the foregoing, we find no merit in defendant's assignments of error. Accordingly, we affirm his manslaughter conviction and 40-year sentence.
AFFIRMED.
NOTES
[1] With respect to Mr. Hyman, if habitual offender proceedings have been instituted by the State, those proceedings are not part of this appeal.
[2] Ms. Boyer stated that she did not consider that statement to be a threat.
[3] The Louisiana Supreme Court has found "`[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.'" State v. Hobley, 99-3343, p. 25, n. 10 (La.12/8/99), 752 So.2d 771, 786, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000), quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998). See also, State v. Kenner, 05-1052 (La.12/16/05), 917 So.2d 1081 (per curiam).
[4] On March 28, 2008, the State noticed its intent to use "other crimes" evidence. The State listed three instances of "other crimes:" 1) defendant's involvement in the distribution of illegal narcotics with and to Joshua and Leslie Daigrepont; 2) defendant's acquaintance with Joshua Daigrepont while both men were incarcerated in the Jefferson Parish Correctional Center in March, 2006; and 3) defendant's assertion, made at his apartment on August 6, 2006, that Leslie Daigrepont had stolen illegal narcotics and money from him. The defense filed an opposition to the State's notice.
On May 16, 2008, the trial court ruled that the State would be allowed to introduce all of the notices "other crimes" evidence. Defendant challenged that ruling in this Court. This Court granted the writ in part, and denied it in part, finding that the trial court erred in granting the State permission to introduce evidence of defendant's use and distribution of illegal narcotics with and to the Daigreponts and evidence of defendant's acquaintance with Mr. Daigrepont in the Jefferson Parish Correctional Center. The majority further ruled that the trial court properly granted the State's request to use evidence of defendant's accusation against Leslie Daigrepont. State v. Hyman, 08-590 (La.App. 5 Cir. 7/31/08) (unpublished writ).
[5] At the time of the commission of the offense, the sentencing range for manslaughter was zero to 40 years at hard labor. La. R.S. 14:31. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586148/ | 763 F.Supp. 473 (1991)
Rose COLLIER, Plaintiff,
v.
Mary KRANE, Director of the Department of Social Services of the City and County of Denver, Federico Peña, Mayor of the City and County of Denver, Maria Davis, Ann Dechant, and William Lindsay, Defendants.
Civ. A. No. 89-S-862.
United States District Court, D. Colorado.
May 1, 1991.
Paul Radosevich, Denver, Colo., for plaintiff.
Niels Loechell, Asst. City Atty., Claims Unit, Denver, Colo., for defendants.
*474 ORDER
SPARR, District Judge.
THIS MATTER comes before the Court on Defendants' motion for summary judgment. The matter has been fully briefed and oral argument has been heard.
The Complaint
This action was originally filed in the Denver District Court, and was removed by Defendants. The complaint is filed under 42 U.S.C. § 1983 as "wrongful adoption." The Plaintiff alleges that Defendants intentionally or with deliberate indifference made material false representation to Plaintiff and her former husband, Walter Collier (not a party to this action) or failed to disclose material information regarding the physical and mental status and background of the Baby Boy[1] prior to the completion of the adoption of Baby Boy.
In another paragraph, Plaintiff alleges that Defendant Davis told her that Baby Boy was in good health and "came from good physical and mental stock," and later certified that Baby Boy's mental and physical condition made him a proper subject for adoption. In addition, Plaintiff alleges that she and Walter Collier acted in reliance on these representations in adopting Baby Boy and subsequently learned that Baby Boy had numerous psychological and physical disorders. The rights which Plaintiff identifies in her complaint as having been violated are the "rights, privileges and immunities secured her by the Constitution and laws ..." Amended complaint at 3.
All Defendants, subsequent to their identification by name in the amended complaint, have filed answers. Defendants then jointly filed this motion for summary judgment.
Factual Background
The "wrongful adoption"[2] is based on the adoption by Plaintiff and Walter Collier of Baby Boy. The background of Baby Boy prior to the adoption by Plaintiff is mercifully short. Baby Boy was the second child born to his biological mother. The first child, also a son, was born October 2, 1974. He was placed in the Department of Social Services' (DoSS) custody at the age of four months after he was brought to Denver General Hospital by a neighbor. The infant's condition was diagnosed as failure to thrive, secondary to viral gastroenteritis. Baby Boy was born October 28, 1976. On October 29, 1976, DoSS filed a petition for dependency and neglect on behalf of Baby Boy, noting in its affidavit in support that it was concerned that Baby Boy not be subjected to his potentially injurious mother. No information was available in the confidential file made available to the Court regarding the Baby Boy's father. Evidently, he provided no support to the child and Baby Boy's mother offered no information concerning his background. Baby Boy was originally placed with Plaintiff and Walter Collier and their family as a foster child on April 2, 1978. Placement for adoption was approved by the Juvenile Court on June 21, 1978.
Based on the Court's perusal of the Defendants' exhibits to the motion for summary judgment, many of which are from confidential court files, it is apparent that the misrepresentation which is the ultimate source of Plaintiff's complaint, that Baby *475 Boy "came from good physical and mental stock," is based on certain tendencies from his natural mother. Plaintiff has identified these to be genetically linked.
Defendants' Motion For Summary Judgment
Defendants move for summary judgment on several grounds. The Court will focus its discussion on two primary issues: whether the Plaintiff has established a claim cognizable under § 1983; and whether Defendants are "persons" under § 1983 and pursuant to the decision in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
The Court will read the pleadings in these motions in the light most favorable to the Plaintiffs. McKay v. Hammock, 730 F.2d 1367, 1371 (10th Cir.1984). For direction as to the standard regarding consideration of the motions for summary judgment, Fed.R.Civ.P. 56(c) states that summary judgment is proper if the pleadings, depositions answers, affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The nonmovant must, in the words of the Rule, come forward with "specific facts showing a genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The inquiry performed by the district court is the threshold inquiry of determining whether there are any genuine factual issues that must be resolved 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). Rule 56(c) requires the Court to enter summary judgment if the evidence favoring the nonmovant party is not sufficient for the jury to enter a verdict in his favor. Id. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
I.
A. Prima Facie Case Under § 1983.
To state a claim for relief under § 1983, a plaintiff must be able to demonstrate that he was deprived of a right secured by the Constitution or laws of the United States, and that any such deprivation was achieved under color of law. Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), reh'g denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976). It must also be noted that § 1983 does not, standing alone, create any equal or civil rights of citizens; rather, it provides a remedy for rights guaranteed by the Constitution or laws of the United States. Wise v. Bravo, 666 F.2d at 1331, citing Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).
Because § 1983 creates no substantive rights, a plaintiff must identify the right involved as stated above. In this case, the Plaintiff has stated only that her "rights, privileges and immunities secured her by the Constitution and law" (amended complaint at 3) have been violated by Defendants' actions. In her response to the Defendants' motion for summary judgment, Plaintiff does state that the second set of interrogatories sets forth that Plaintiff alleges that her due process and privacy rights have been violated. In responding to the Defendants' arguments that they are entitled to qualified immunity, Plaintiff provides some further explanation of the constitutional or statutory rights involved. Citing to cases which recognize a private realm of family life which the State cannot enter (Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944)); concern the breakup of a natural family (Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977)); and protect the family relationship which *476 falls outside the nuclear family definition (Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)), Plaintiff fails to address one fundamental point. The family relationship which lies at the core of this action is an adoptive one. While the biological family relationship is a recognized and protected interest in both our Constitution and natural law, the adoptive family relationship differs in several substantial ways. The adoptive family's rights, like those of the foster family, arise from state statute. The adoption process is entirely a creature of state law, and parental rights and expectations involving adoption have historically been guarded by legislative enactment. Lindley for Lindley v. Sullivan, 889 F.2d 124, 130 (7th Cir.1989). The Lindley court drew another distinction between natural procreation and adoption: "Adoption always involves the weighing and balancing of many competing interests. The rights of a couple to adopt must be reconciled with the State's interest in protecting the existing rights of the natural parents,[3] as well as in securing ultimately the welfare of the child." (emphasis added) 889 F.2d at 131.
The Supreme Court, in treating the issue of whether foster children were deprived of their liberty interests by disruption of the children's relationships with foster parents, has noted important distinctions between the foster family and the natural family: "Unlike the earlier cases recognizing a right to family privacy, the State seeks here to interfere, not with a relationship having its origins entirely apart from the State, but with the foster family which has its source in state law and contractual agreements. Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094.
In addition to her failure to recognize the important distinctions between the nature of the rights inherent in biological and adoptive families, Plaintiff also does not distinguish the alleged damage suffered as adoptive parent, from the process of the adoption, which she claims is the cause of her damage. Because the damage alleged to have been suffered after the adoption is based on Plaintiff's status as adoptive parent,[4] and is therefore of a character distinct from the process of adoption, the Court's inquiry will focus on the adoption process.
The Seventh Circuit in Lindley v. Sullivan analyzed the Illinois adoption statute (which it described as "typical"), concluding that "[b]ecause the adoption process is entirely conditioned upon the combination of so many variables, we are constrained to conclude that there is no fundamental right to adopt." That court also decided to find that the interest in adopting a child falls within the marital privacy right, since that statute requires adopters to submit their personal lives to intensive scrutiny before the adoption may be approved. The court then concluded it could find neither a fundamental right nor a privacy interest in adopting a child. 889 F.2d at 131.
B. Discussion of Rights At Issue During the Adoption Process.
The rights of the Plaintiff which she enjoyed prior to the adoption of her son, e.g., when he was a foster child, may stand in sharp contrast to her substantive rights as an adoptive parent. The process of adoption implicates a duty on the part of the State to see that the best interests of the child and its welfare are served by the decree of adoption. See Colo.Rev.Stat. § 19-4-107 (1986 repl. vol.) and comments; Clerkin v. Geisendorfer, 137 Colo. 139, 323 P.2d 633 (1958). The adoption process gives rise to a special relationship between *477 the minor child and the State. In a case concerning foster children's right to associate with relatives, the Ninth Circuit found that foster children had a protectable liberty interest in residing with relatives and that the State had a duty to make a reasonable effort to assist foster children with their rights to reside with relatives. That court noted that in such a special custodial relationship, the State assumes an affirmative obligation to secure those individuals' constitutional liberty.[5]Lipscomb by and through DeFehr v. Simmons, 884 F.2d 1242, 1246 (9th Cir.1989), reh'g granted 907 F.2d 114 (1990). In further explanation of the State's duty to assist the child and generally act in loco parentis, the court noted: "When a State removes abused and neglected children from their parents' homes, it assumes responsibility for ensuring that their basic needs are met and their fundamental rights respected." 884 F.2d at 1249. The natural object of the State's concern in an adoption proceeding is the child. The child's welfare is paramount. This is evident in the rigorous background checking of the prospective parents, as well as the nature of the considerations in a hearing on an adoption petition. See Colo. Rev.Stat. § 19-4-112.
Due to the nature of the prospective parents' interest involved here, due process requirements do not come into play. See Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094. Even if the Plaintiff could identify a due process interest, it would not be capable of meeting the three elements required in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Plaintiff is also unable to show that any fundamental right of familial association is implicated. In a decision holding that the mother and a sister of a decedent who died in a county jail had standing and constitutionally protected interests in a § 1983 action, the Tenth Circuit described the right to freedom of intimate association. Trujillo v. Board of County Com'rs of County of Santa Fe, 768 F.2d 1186 (10th Cir.1985), citing Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). In Trujillo, the court noted initially that "family relationships, which by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctly personal aspects of one's life." Trujillo, 768 F.2d at 1188. The Tenth Circuit also held that where the freedom of intimate association is implicated in a § 1983 action, an allegation of intent to interfere with a particular relationship protected by the freedom of intimate association is required to state a claim under § 1983. 768 F.2d at 1190. Due to the nature of the conflict between Plaintiff's status (as adoptive mother) at the time of the filing of the complaint and her status during the adoption proceeding, it is clear that no right of familial or intimate association is implicated here.
One additional argument that Plaintiff might raise concerns her right to privacy and the concomitant right to receive important information. In a decision holding that a state statute requiring adults adopted as children to show good cause to gain access to their adoption records was not an unconstitutional exercise of state power, the court held:
Plaintiffs' rights to privacy and to receive important information are not constitutionally abridged by the New York statutes but rather are permissibly limited in accordance with a valid state interest to balance conflicting rights of privacy and to protect the integrity of the adoption process, which is likely to suffer if the assurances of secrecy are not present.
Alma Society, Inc. v. Mellon, 459 F.Supp. 912, 917 (S.D.N.Y.1978), aff'd 601 F.2d 1225 (2d Cir.1979), cert. denied 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979).
*478 As noted previously, the adoption process is designed to protect the best interests of the child in placing it in a suitable home. As a secondary matter, the rights of the biological parents (no such rights were at issue in this case as parental rights were terminated prior to adoption) will be considered. No provision for protecting the "rights" of the adoptive parents in obtaining a suitable child are mentioned in the statutory scheme, and no such right can be inferred from other sources.
The Court also notes that, since no constitutional rights or federal statutory law has been implicated here, there can be no basis for a § 1983 action. Allegation of a tort is not a sufficient basis for a § 1983 action. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155. Addressing similar concerns, the Supreme Court noted later in Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986):
But in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right [the due process clause of the Fourteenth Amendment implicated in this decision], merely negligent conduct may not be enough to state a claim (citations omitted).
Finally, the Court wishes to note the theoretical "Catch-22" in which the Plaintiff finds herself here in attempting to make out a § 1983 claim. Her standing in this suit, as well as her claim for damages, is based on her status as Baby Boy's adoptive mother. The alleged wrongs which Plaintiff has attempted to fashion into a § 1983 claim are based on the process by which she adopted the baby. Based on the discussion above, the Plaintiff can assert no cognizable § 1983 claim based on Defendants' actions during the process of adoption. The adoption schematic is uniquely state law, and there appear to be no rights raised here which belong to the Plaintiff the violation of which could serve as the basis for § 1983 liability. With regard to the status of Plaintiff as adoptive mother, the adopted child, for all practical intents and purposes, now occupies a situation similar in many ways to that of a biological child of the Plaintiff. Holding the State liable for its role in the myriad of problems it is alleged the child now faces would be tantamount to holding the Creator liable for the defects of a child born to its natural parents.
Accordingly, Plaintiff is unable to state a claim under § 1983 as she cannot demonstrate that she was deprived of a right secured by the Constitution or laws of the United States.
II.
The Court also determines that Defendants are not "persons" for § 1983 purposes. In addition to Plaintiff's inability to state a claim under § 1983, Plaintiff is also unable to maintain suit against the Department of Social Services Defendants because the DoSS is not a "person" for purposes of § 1983 liability. Wigger v. McKee, et al., 809 P.2d 999 (Colo.App.1990) cert. denied No. 90 SC 480 (Colo. April 15, 1991) In addition, the claims against the individual Defendants sued in their official capacities and acting on behalf of DoSS, Mary Krane, Maria Davis, Ann Dechant, and William Lindsay, must also fail, as the Plaintiff's claim is actually a claim against the Office of Social Services. Will v. Michigan Department of State Police, 109 S.Ct. at 2311.
The Defendant City and County of Denver (with Defendant Federico Peña as Mayor) is sued as a municipal corporation which has allowed conduct "similar to" Defendant Davis' to become common practice or custom. The City and County of Denver and its Mayor cannot be held liable under a respondeat superior theory. Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). It also follows that, the City and County of Denver cannot be held liable under any exceptions to Monell (e.g., where a valid policy is unconstitutionally applied) such as City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)) because the Department of Social Services answers to the State, not the municipal authority of the City of Denver. As a consequence of the *479 DoSS Defendants not being "persons" for § 1983 purposes, it is unnecessary to address any issues concerning the Eleventh Amendment.
With regard to the issue of qualified immunity, it appears the doctrine may be implicated as relating to the Defendant Maria Davis.[6] The Plaintiff indicated in her response to the summary judgment motion that Maria Davis was sued in both her official and individual capacities. With regard to individual personal liability under § 1983, Davis' (or any other DoSS employee's) liability must be viewed in light of the doctrine of qualified immunity. Here, the Court applies an objective test to determine whether qualified immunity applies. Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642 (10th Cir.1988). That test is whether the Defendant violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it. Losavio, 847 F.2d at 645. As articulated above in the discussion of whether Plaintiff has a claim cognizable under § 1983, Plaintiff is unable to identify any clearly established right and cannot thereby allege that any Defendants violated it. The qualified immunity defense provides ample protection to all but the plainly incompetent or those who knowingly violate the law. Powell v. Mikulecky, 891 F.2d 1454, 1456 (10th Cir.1989) citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Because Defendant Davis could not have been aware of any such "rights" that the Plaintiff was entitled to during the adoption process, there could also be no violation.
III.
The issue of whether this action is barred by the statute of limitations is moot. This issue will not be discussed, as the Court has determined the Plaintiff has no claim cognizable under § 1983 against the Defendants.
Accordingly, for the reasons stated in this ORDER, the Defendants' motion for summary judgment is GRANTED. The Clerk is directed to enter judgment in favor of the Defendants, each party to bear its own costs.
NOTES
[1] Although the child is named in the complaint, subsequent pleadings including the motion for summary judgment, response and reply, were filed under seal pursuant to the direction of this Court (order of August 22, 1989). For the same reasons as those pleadings were filed under seal, the Court will not name the child subject of this "wrongful adoption" action.
[2] This action was filed as a wrongful adoption under 42 U.S.C. § 1983. The Court would note that the nature of these claims bear little if any resemblance to claims such as wrongful birth or wrongful life. Wrongful birth is a medical malpractice claim brought by parents on behalf of a child born with an impairment or birth defect and which alleges that but for the physician's misinformation or failure to inform, the child would not have been conceived or carried to term. Wrongful life is a medical malpractice claim in which the child alleges that but for the physician's negligence, it would not have been born to suffer the impairment. See Lininger v. Eisenbaum, 764 P.2d 1202, 1204 (Colo.1988). In the present case, the adoptive mother's claim (which was derived from procedure arising from state action of adoption) appears antagonistic to the interests of the child.
[3] Such rights were extinguished in the case of Baby Boy.
[4] In Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982), the court held that the half-sister with whom two siblings had resided prior to the institutionalization of their mother possessed an important liberty interest (which differed substantially from a typical foster care situation) which was entitled to protection from state action which threatens the integrity and stability of their familial relationship. No such interest is at issue here the provision of the child, not its removal, is essentially the subject of dispute here. Ultimately, the adoptive parent stands in a situation similar to that of biological parent once the adoption process is completed.
[5] The relationship was held to extend § 1983 liability on behalf of the State where plaintiff foster child was beaten while residing in a foster home. See, Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989).
[6] The complaint and amended complaint do not indicate that any of the Defendants are sued in an individual capacity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586155/ | 33 So.3d 18 (2009)
Danny LAMBERT
v.
MAZER DISCOUNT HOME CENTERS, INC.
2080491.
Court of Civil Appeals of Alabama.
September 25, 2009.
*20 Heather Newsom Leonard, Birmingham, for appellant.
Jim Entrekin and Brett Adair of Carlson & Adair, L.L.C., Birmingham, for appellee.
THOMAS, Judge.
This is an appeal from a summary judgment in an action brought pursuant to the Alabama Age Discrimination in Employment Act ("AADEA"), codified at Ala.Code 1975, § 25-1-20 et seq.
Facts and Procedural History
Danny Lambert was employed for Mazer Discount Home Centers, Inc. ("Mazer"), for almost 29 years. During the lengthy term of his employment, Lambert worked his way up in the company and was eventually promoted to the position of vice president of marketing. As vice president of marketing, Lambert's duties included purchasing duties for the building-supply and kitchen-and-bath departments of Mazer; "deal buying," which describes the task of seeking out and negotiating the purchase of closeout merchandise; and media planning and buying or, in other words, planning and purchasing times for and types of advertising for Mazer products and stores.
Mazer is a family-owned business, and its president was originally J.B. Mazer. In 2005, however, J.B. retired from the office of president and his son, Mike Mazer, took over. According to Lambert, Mike's management style differed from that of J.B. Lambert said that Mike tended to "micromanage" more than J.B.
Under the presidency of both J.B. and Mike, vice presidents like Lambert were treated differently than other employees. For example, vice presidents were not required to turn in time sheets or otherwise account for their time like other employees. Mike explained that the vice presidents were in positions of trust and that they were officers of the company, so they were not required to account for their time *21 because they were expected to always have the interests of the company at heart. In addition, although J.B. and Mike always performed at least yearly performance reviews of the vice-president-level employees, the reviews were informal and oral; no written records reflecting the substance of those reviews or any other conversations regarding performance were written or made a part of a vice president's personnel file.
Lambert admitted that Mike had spoken with him on more than one occasion after Mike took over as president in 2005 regarding the time Lambert spent away from the office. Lambert had a vacation home in Destin, Florida, which he rented when he was not using it, and another piece of rental property in Santa Rosa, Florida. Both properties required maintenance periodically, and Lambert traveled to the area where the properties are located approximately twice per month. Lambert also purchased a home in the Birmingham area in 2005; that home apparently required extensive renovation. Lambert's rental-property maintenance and his home renovations appeared to Mike to shift Lambert's focus away from Mazer business even when he was at work. However, Lambert testified that "he wouldn't know" whether Mike was irritated or concerned over Lambert's performance as a result of the focus Mike felt Lambert placed on his rental property and home renovations.
During early 2006, issues arose in the kitchen-and-bath department regarding kitchen cabinets, which Lambert was responsible for ordering. The department had difficulty meeting customer orders on several occasions because certain popular cabinets were not in stock. However, the department also suffered from a problem with overstocked items that would not sell. According to Mike, Lambert's failure to properly order the right cabinets at the right times had caused the problems that manifested themselves in the kitchen-and-bath department in early 2006.
Lambert admitted that Mike had expressed displeasure over the problems in the kitchen-and-bath department. He said that Mike had specifically criticized him for ordering the wrong types of building materials or cabinets. Lambert testified that he knew that Mike was unhappy with him over the issues with the out-of-stock kitchen cabinets.
In addition, Mike testified that he became increasingly dissatisfied with Lambert's handling of his advertising duties. Mike said that he wanted to move away from radio, to move toward more "high-dollar" spots on television, to increase the production values of the television commercials, and to take a fresh approach to the way print ads were used by the company. Mike specifically stated that he felt that Lambert had not been proactive in looking for new ways to be effective in his advertising duties. Lambert admitted that Mike had communicated his desire for "high-dollar" spots on television and a desire to move away from radio advertising; the only other issue related to advertising that Lambert admitted that Mike had complained to him about was the amount of time he spent at lunches with his advertising contacts.
By May 2006, Mike had become so dissatisfied with Lambert that he decided to discharge him from his employment with Mazer. He telephoned Lambert and arranged for a meeting with him on May 3, 2006. When Lambert met with Mike, the company controller, Dan Ward, was also in attendance. Mike informed Lambert that he was being discharged, and Mike offered Lambert a severance package and a termination agreement. Lambert said that Mike did not tell him why he was being *22 discharged; however, Ward testified that Mike began to explain his reasons but Lambert told Mike that he did not want to hear them. Lambert did not accept the severance package, and he did not sign the termination agreement. At the time he was discharged from his employment, Lambert was 47 years old.
After he discharged Lambert, Mike divided and reassigned Lambert's duties to existing personnel. Mike testified that he did not hire anyone or promote anyone to take over Lambert's position as vice president of marketing. David Smythia, who served as executive vice president, was assigned Lambert's advertising duties. David Cobbin was promoted from location manager to purchasing manager, and he took over purchasing duties for the kitchen-and-bath department. Mike took over Lambert's deal-buying duties.
After receiving a right-to-sue letter from the Equal Employment Opportunity Commission("EEOC") Lambert sued Mazer, alleging that he had been discharged from his employment in violation of the AADEA. Mazer answered Lambert's complaint and denied liability. Mazer then moved for a summary judgment on Lambert's age-discrimination claim, which the trial court granted. In its judgment, the trial court determined that Lambert had failed to present evidence sufficient to establish a prima facie case of age discrimination under the AADEA and that, even if he had, he had failed to present sufficient evidence demonstrating that Mazer's proffered legitimate, nondiscriminatory reason for Lambert's discharge was pretextual. Lambert appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).
Standard of Review
We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).
Age Discrimination under the AADEA
This case presents only the second time that an Alabama appellate court has considered the merits of a claim brought under the AADEA.[1]See Robinson v. Alabama *23 Cent. Credit Union, 964 So.2d 1225 (Ala.2007) (affirming a summary judgment in favor of an employer on an employee's age-discrimination claim brought pursuant to the AADEA). The AADEA prohibits employers, employment agencies, and labor organizations from "discriminat[ing] in employment against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment." § 25-1-21. In Robinson, our supreme court, after considering the holdings of federal courts in Alabama, adopted the same burden-shifting analysis applied to federal age-discrimination claims brought under the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Robinson, 964 So.2d at 1228-29.
"[F]ederal courts considering the issue [of the burden of proof applicable to an AADEA claim] have noted that the purpose and prohibitions of the AADEA are similar to those of the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (`ADEA'), and concluded that ADEA principles should therefore govern in AADEA cases as well. See, e.g., Bonham v. Regions Mortgage, Inc., 129 F.Supp.2d 1315, 1321 (M.D.Ala.2001); see also § 25-1-29, Ala.Code 1975 (expressly adopting as part of the AADEA the remedies, defenses, and statutes of limitations applicable to the ADEA). Accordingly, the federal courts have applied to AADEA claims the same evidentiary framework applied to federal age-discrimination claims. We agree that this framework, which was articulated by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is the proper means by which to review an AADEA claim. The evidentiary framework was summarized as follows in Dooley v. AutoNation USA Corp., 218 F.Supp.2d 1270, 1278 (N.D.Ala.2002):
"`"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination."
"`Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (citations omitted). At all times, plaintiff bears the burden of persuasion on the ultimate question of whether the defendant acted with an unlawful motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the plaintiff does *24 not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to judgment as a matter of law on the plaintiff's claim. See Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997).'"
Robinson, 964 So.2d at 1228-29.
In the summary-judgment order appealed from in Robinson, the trial court had assumed that the plaintiff had established a prima facie case of age discrimination and had concluded that a summary judgment was appropriate because the plaintiff had failed to present sufficient evidence that the reason for the discharge proffered by the employer was pretextual. Id. at 1229. The supreme court, likewise, assumed that the plaintiff in Robinson had established a prima facie case and analyzed only whether the plaintiff had presented sufficient evidence to create a genuine issue of material fact regarding whether the reason for the plaintiff's discharge proffered by the employer was pretextual. Id. at 1230-32. Thus, the Robinson court did not set out the elements required to make out a prima facie case of age discrimination under the AADEA. Because the trial court in the present case determined both that Lambert had failed to present evidence sufficient to establish a prima facie case and that Lambert had failed to create a fact question regarding whether the proffered legitimate, nondiscriminatory reason for his discharge was pretextual, we will address both the establishment of a prima facie case under the AADEA and the demonstration of pretext under the AADEA.
The Prima Facie Case
In an AADEA case, our supreme court has held, a plaintiff must first establish a prima facie case of discrimination. Robinson, 964 So.2d at 1228. Because our supreme court agreed that cases applying the ADEA should govern the application of the AADEA, we turn to federal cases applying the ADEA to determine exactly what a plaintiff must prove to establish a prima facie case of age discrimination. Generally, a plaintiff seeking to establish a prima facie case of age discrimination must "prove that (1) plaintiff was a member of a protected group, (2) plaintiff was discharged, (3) plaintiff was replaced with a person outside the protected group, and (4) plaintiff was qualified to do the job." Stanfield v. Answering Serv., Inc., 867 F.2d 1290, 1293 (11th Cir.1989).
The trial court in the present case determined that Lambert had not established the elements of a prima facie case of age discrimination because he had failed to produce evidence that Mazer replaced him with a younger person. In its summary-judgment order, the trial court specifically noted that, in some federal circuits, an employee is not considered to have been replaced when his or her duties are distributed among existing employees who have been performing the same, similar, or related work. See Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir.1990). Although the trial court did not so indicate, the fact that Mazer reassigned Lambert's duties to at least two other employees who were older than himSmythia and Mikealso weighs against the establishment of a prima facie case. Settle v. K Mart Corp., 857 F.Supp. 955, 958 (M.D.Fla.1994) (stating that because there was proof that the age-discrimination plaintiff was replaced by someone substantially older, the plaintiff had failed to present the court with evidence raising an inference of age discrimination).
Lambert takes issue with the trial court's adherence to the requirement that he prove that he was replaced by a younger *25 employee. Lambert points out that federal age-discrimination cases have not limited themselves solely to one formulation of the elements of a prima facie case. See Stanfield, 867 F.2d at 1294 (stating, in the context of an age-discrimination case under the ADEA, that proving that one was replaced by a younger person "is not essential" and that "`the particularly amorphous nature of age discrimination counsels against rigid application of [the] test'" (quoting Pace v. Southern Ry. Sys., 701 F.2d 1383, 1387 (11th Cir.1983))). Based upon our review of several age-discrimination cases, we conclude that Lambert is correct in asserting that his failure to prove that he was replaced by a younger person does not, in and of itself, prevent the establishment of a prima facie case of age discrimination.
In fact, in cases involving reductions in the workforce or the elimination of a position by the employer, a plaintiff lacking direct evidence of age discrimination would be almost unable to prove his or her case if the requirement of showing his or her replacement by a younger individual were considered imperative to the establishment of a prima facie case. See, e.g., Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.1987). In recognition of this fact, the federal courts have developed an alternative test for the establishment of a prima facie case of age discrimination in those types of cases:
"[T]his Circuit has held that a plaintiff in a job-reduction case can establish a prima facie case by demonstrating: (1) that he was in a protected group and was adversely affected by an employment decision; (2) that he was qualified to assume another position at the time of discharge or demotion; and (3) evidence by which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). Although this test is not `the alpha and omega of possible tests in the age discrimination context,' Pace [v. Southern Railway System], 701 F.2d [1383,] 1387 [(11th Cir.1983) ], it does establish the proposition that the plaintiff's burden is to introduce evidence that supports a reasonable inference of intentional age discrimination."
Barnes, 814 F.2d at 609-10 (footnote omitted); see also Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir.1997); Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 567-68 (11th Cir.1992).
Mike testified that he did not replace Lambert by hiring anyone for or promoting anyone to the position of vice president of marketing and that he instead divided Lambert's duties among three existing employees. Mike did not testify, and the evidence does not establish, that Mike's reason for discharging Lambert was the need to eliminate Lambert's position. The Eleventh Circuit Court of Appeals has indicated that the alternative test for establishing a prima facie case is limited to true reduction-in-force or position-elimination cases. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir.2000) (recognizing a distinction between workforce-reduction cases and termination cases). However, federal courts have not always required strict adherence to the elements of a prima facie case, indicating that, although the typical method of demonstrating a prima facie case involves a showing that the employer replaced an older worker with a younger one, the courts must be "open to alternative methods of proof of a prima facie case" and that the determination hinges on "whether the plaintiff has presented sufficient evidence to provide a basis *26 for an inference that age was a factor in the employment decision." Pace v. Southern Ry. Sys., 701 F.2d at 1387; see also Stanfield, 867 F.2d at 1294. Thus, although we agree with Lambert that the trial court erred in strictly applying the original elements of a prima facie case to Lambert's age-discrimination claim and by concluding that Lambert's failure to prove that he was replaced by a younger person prevented him from establishing a prima facie case, we must now consider whether Lambert's evidence "provide[s] a basis for an inference that age was a factor in the employment decision," Pace, 701 F.2d at 1387, and, thus, whether Lambert did, in fact, establish a prima facie case of age discrimination. Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala. 2003) (noting that we may affirm a trial court's judgment on any valid legal ground in most circumstances).
Because the alternative test allows an age-discrimination plaintiff the opportunity to establish a prima facie case by presenting "evidence by which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue," Barnes, 814 F.2d at 609, we will consider Lambert's evidence under that test. Both parties agree that Lambert has established the first and second elements of the alternative test, because Lambert was qualified for his position and he was a member of the protected group that suffered an adverse employment decision. See id. We turn our focus, then, to the third element of the alternative test: whether Lambert presented evidence from which a reasonable fact-finder could conclude that Mazer intended to discriminate against him on the basis of his age when Mike discharged him from his employment. See id. To do that, we must consider whether Lambert presented "evidence that supports a reasonable inference of age discrimination." Id. at 610.
In order to make the determination whether an age-discrimination plaintiff has presented enough evidence to satisfy his or her burden of presenting a prima facie case, courts have considered circumstantial evidence of discrimination, including comments made by employers or decision makers that indicate an age-related bias. See Corbin v. Southland Int'l Trucks, 25 F.3d 1545, 1549 (11th Cir.1994); see also Hunter v. Mobis, Alabama, LLC, 559 F.Supp.2d 1247, 1257 (M.D.Ala.2008) (considering comments indicating a pregnancy-related bias in a pregnancy-discrimination case to evaluate whether the plaintiff established a prima facie case). "[A] comment [by an employer or decision maker], which was narrowly tailored to a particular event, might constitute some evidence of discrimination for a case based on a separate event; the statement, however, must then be seen not as direct evidence of discrimination, but as circumstantial evidence of discrimination"; circumstantial evidence, unlike direct evidence, "suggestsbut does not provea discriminatory motive." Burrell v. Board of Trs. of Georgia Military Coll., 125 F.3d 1390, 1393 n. 7 and 1393 (11th Cir.1997). However, the courts have also held that "stray remarks" or "isolated comments" unrelated to the employee or discharge at issue are not sufficient to create a jury question in an age-discrimination case. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir.1994); see also Brook v. City of Montgomery, 916 F.Supp. 1193, 1204-05 (M.D.Ala.1996). The age-discrimination plaintiff must "demonstrate [that] a nexus exits between th[e] allegedly discriminatory statements and the [employer's] decision to terminate [him or] her." Cone, 14 F.3d at 531; Brook, 916 F.Supp. at 1204-05.
*27 Lambert testified that Mike had made statements indicating an age bias. Mike admitted that he had made some, but not all, of the statements Lambert attributed to him. For purposes of review of the summary judgment, we must consider the facts in the light most favorable to Lambert, see DPF Architects, 792 So.2d at 372, and we therefore consider all the alleged statements as if Mike had indeed made them. Cone, 14 F.3d at 531.
Lambert testified that Mike had said of Art Levine, who was about 65 years of age, that he desired someone younger and more energetic in his position. According to Lambert, Mike also commented that Art "wasn't very active." Regarding another employee, Sam Lorino, whose age does not appear in the record but who was, by agreement of the parties, over the age of 40, Lambert testified that Mike had stated that Lorino was "past his prime" and also mentioned that he, too, was not "active."
Those statements, although capable of being perceived as derogatory and inappropriate, were not made regarding or directed toward Lambert. They were comments made about other employees in other positions than Lambert's and did not directly bear on the decision to discharge Lambert. Thus, they appear to be "stray remarks," which are inadequate to present sufficient evidence of a discriminatory intent. Cone, 14 F.3d at 531; Brook, 916 F.Supp. at 1204-05.
Lambert also relies on what he terms Mike's "conflicting testimony" regarding the reason for Lambert's discharge. Lambert relies on a statement Mike made in a 2008 deposition in a defamation action brought by another discharged employee. In the deposition, Mike was asked why Lambert was discharged, to which he responded "reorganization." When asked if there were any other reasons for discharging Lambert, Mike replied "no." Mike had testified in his deposition in the present case, had indicated in his written discovery responses, and had indicated in Mazer's EEOC position paper that Lambert's discharge was motivated by dissatisfaction with Lambert's performance of both his purchasing and advertising duties. Mazer argues that the two reasons given were not truly conflicting.
Our supreme court considered a similar argument in Robinson, in which the employer had originally given corporate restructuring as its reason for the employee's discharge. Robinson, 964 So.2d at 1229-30. Later, the employer indicated that it had also become dissatisfied with the employee's work and that his performance had figured into its decision to discharge him. Id. at 1230. In affirming the summary judgment in favor of the employer, our supreme court explained that the two reasons given by the employer were not, in fact, "conflicting" and did not amount to evidence that the employer had disavowed the original reason or otherwise indicated that the original reason was a pretext. Id.
Notably, Mike maintained throughout this action that he had discharged Lambert after becoming increasingly dissatisfied with his performance, which Mike felt was a result of Lambert's outside interests and his time away from the office pursuing them. After Lambert's discharge, Mike did restructure some of the upper-level management of the company by reassigning certain of Lambert's duties to Smythia, the existing executive vice president, and to himself; the bulk of Lambert's purchasing duties were assigned to a lower-level employee, who performed those duties in addition to his former duties. Mike's comment in an unrelated case that he discharged Lambert because of restructuring *28 appears nothing more than a shorthand way to explain the changes in the Mazer management team and does not appear to indicate that Mike was disavowing the basis for the decision to discharge Lambert.
Lambert's final argument that he has produced sufficient circumstantial evidence that his age was a motivating factor for his discharge, in order to establish a prima facie case of age discrimination, is that Mazer redistributed his duties to a younger employee. Although we agree that reassigning the duties of a discharged employee to a younger employee might evidence age discrimination in some cases, Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir.1994) (holding that an age-discrimination plaintiff established a prima facie case when he "claimed that twelve of the thirteen functions he performed were retained at the corporate level, and that all his duties were assigned to persons younger and less qualified than he" (emphasis added)), the facts of the present case do not evidence such discrimination. Although Cobbin, who assumed Lambert's purchasing duties for the kitchen-and-bath department, is younger than Lambert, Smythia and Mike, who both assumed some of Lambert's duties, are not. In fact, Smythia, at age 66, is significantly older than Lambert. Many of Mazer's upper-level employees are older than Lambert. The evidence indicates that Mazer has a number of older upper-level employees: Ward, the company treasurer and controller is 64; Miriam Deal, who performs certain advertising duties under Smythia's direction, is in her 60s; and Peggy Martin, who serves as a purchasing assistant, is 67. At best, Lambert's evidence amounts to evidence indicating that Mazer selected one younger person and two older persons to take over the tasks that Mike determined Lambert could no longer adequately perform. The mere fact that one of the persons to whom one-third of Lambert's duties were reassigned is younger than Lambert does not amount to substantial evidence demonstrating that Mazer's decision to discharge Lambert from his employment was motivated by his age.
We conclude, therefore, that Lambert has not proven a prima facie case of age discrimination under the AADEA, even based on the alternative test expressed by the Eleventh Circuit Court of Appeals in Barnes. That is, Lambert's evidence is not sufficient evidence from "which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Barnes, 814 F.2d at 609. The trial court properly entered a summary judgment, even if it erred by strictly applying the original elements of a prima facie case. Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d at 1020.
Pretext
However, even if Lambert had established a prima facie case of age discrimination, we would still conclude that the trial court's summary judgment was properly entered. As noted above, once a plaintiff in an age-discrimination case establishes a prima facie case, the burden of production shifts to the employer, who must then proffer a legitimate, nondiscriminatory reason for the employee's discharge. Robinson, 964 So.2d at 1228-29; see also Stanfield, 867 F.2d at 1294. Mazer proffered as its basis for Lambert's discharge Mike's dissatisfaction with Lambert's performance in his purchasing and advertising duties. Lambert was then required to present substantial evidence creating a fact question regarding whether age was, in fact, the basis for Mazer's decision to discharge him or that the reason proffered by Mazerdissatisfaction *29 with Lambert's performancewas a mere pretext for age discrimination. Robinson, 964 So.2d at 1229; see also Stanfield, 867 F.2d at 1294.
Much of the circumstantial evidence discussed above in the discussion of the prima facie case is also relevant to the consideration whether Lambert met his burden of creating a genuine issue of material fact regarding his assertion that Mazer's stated reason for his discharge was a mere pretext. Because we have concluded that Lambert's circumstantial evidencethe alleged comments by Mike indicating age-related bias, the contention that Mike had given conflicting reasons for Lambert's discharge, and the reassignment of a portion of Lambert's duties to a younger employeeis not evidence from which a reasonable fact-finder could infer a discriminatory intent, we will not discuss that evidence further. In addition to the circumstantial evidence discussed in the previous section, Lambert argues that the lack of documentary evidence to support Mazer's assertion of a performance-based discharge creates a question of fact regarding the validity of the proffered reason. As Lambert argues, federal courts have held that the lack of documentation to support performance or disciplinary issues with an employee can support an inference that the performance-or discipline-based reason is a pretext. Lloyd v. Georgia Gulf Corp., 961 F.2d 1190, 1194-95 (5th Cir.1992); see also Everett v. Lake Martin Area United Way, 46 F.Supp.2d 1233, 1237 (M.D.Ala.1999) (applying same legal principle to a case involving discrimination on the basis of one's filing for bankruptcy protection under 11 U.S.C. § 525(b)).
However, the Eleventh Circuit Court of Appeals has also held that, when there is no "formal review process," the lack of documentation of complaints, negative reviews, or disciplinary warnings in a personnel file is not sufficient evidence to show pretext. Wascura v. City of South Miami, 257 F.3d 1238, 1245 (11th Cir. 2001) (involving a case of discrimination under 42 U.S.C. § 12112(b)(4), a part of the Americans With Disabilities Act). All the evidence in the present case indicates that the review process for vice-president-level employees at Mazer was informal and oral; without fail, each person with knowledge of the process testified that Mike never issued written reviews. In addition, Lambert himself testified that Mike had counseled him on missing work and had expressed displeasure over certain of his purchasing practices. Lambert specifically stated that he knew Mike was unhappy about the situation with the kitchen cabinets. The fact that Mike also indicated satisfaction with Lambert during the period before his discharge is not sufficient to raise a question of fact regarding pretext. See Robinson, 964 So.2d at 1231-32 (indicating that positive comments among the negative ones in performance evaluations did not suffice to establish that the employer's proffered reason for discharge was pretextual).
We conclude, therefore, that Lambert also failed to present substantial evidence creating a fact question regarding whether Mazer's stated basis for Lambert's discharge was a mere pretext for age discrimination. Lambert admitted having been counseled about and having been aware of Mike's dissatisfaction with the performance of at least some of his duties in the year before his discharge. A review of the evidence submitted by both parties convinces us that the trial court's decision to enter a summary judgment in favor of Mazer on the pretext issue was correct.
Conclusion
In conclusion, we have determined that Lambert failed to establish a prima facie *30 case of age discrimination under the alternative test set out by the Eleventh Circuit Court of Appeals in Barnes. Lambert's evidence was not sufficient to lead a reasonable fact-finder to conclude that Mazer intended to discriminate against Lambert on the basis of his age when Mike decided to discharge Lambert. In addition, even if Lambert had established a prima facie case of age discrimination, we conclude that Lambert was unable to create a genuine issue of material fact regarding whether Mazer's proffered reason for the dischargedissatisfaction with Lambert's performance of his purchasing and advertising dutieswas a mere pretext for age discrimination. Accordingly, we affirm the summary judgment entered in favor of Mazer.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, J., concur.
BRYAN and MOORE, JJ., concur in the result, without writings.
NOTES
[1] In several other cases, appellate courts have considered issues relating to an AADEA claim, such as the limitations period applicable to an AADEA claim, see Byrd v. Dillard's, Inc., 892 So.2d 342 (Ala.2004), and Hedegard v. BE & K, 923 So.2d 315 (Ala.Civ.App.2005); the effect of a settlement or release of another claim on an AADEA claim, see Dunlap v. Regions Fin. Corp., 983 So.2d 374 (Ala.2007) (affirming a summary judgment in favor of an employer on an age-discrimination claim brought under the AADEA on the basis of a release signed by the employee), and Whitson v. City of Hoover, 14 So.3d 98 (Ala.2009) (reversing the dismissal of an AADEA claim because a workers' compensation settlement did not release the claim); the timing of the consideration of both sovereign and state-agent immunity in a case brought under the AADEA, see Ex parte Auburn Univ., 6 So.3d 478 (Ala.2008); and whether federal-law claims brought in federal court tolled a state-law claim brought under the AADEA in state court, see Rester v. McWane, Inc., 962 So.2d 183 (Ala.2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586208/ | 176 So.2d 550 (1965)
Victor TUETA and the Marine Bank & Trust Co. of Tampa, Appellants,
v.
Santiago RODRIGUEZ, Appellee.
No. 5370.
District Court of Appeal of Florida. Second District.
June 11, 1965.
Rehearing Denied July 15, 1965.
*551 Robert T. Mann of Campbell, Mann & Hampton, Tampa, for appellant Tueta.
Ralph C. Dell of Allen, Dell, Frank & Trinkle, Tampa, for appellant Marine Bank.
Norman S. Brown of Brown & Brown, Tampa, for appellee.
SMITH, Chief Judge.
This interlocutory appeal is from orders of the circuit court denying appellant-Tueta's motion to dismiss for lack of jurisdiction and appellant-Marine Bank's motion to dissolve an injunction against honoring drafts issued under an irrevocable letter of credit of which appellant-Tueta was the beneficiary. The appellants will be referred to as the "Tampa Bank," and "Tueta" and the appellee as "Rodriguez."
Rodriguez, a resident of Tampa, and Tueta, a resident of Lausanne, Switzerland, were involved in certain international commercial dealings. Rodriguez arranged for the Tampa Bank to issue an irrevocable letter of credit for $13,550 with Tueta as beneficiary thereof. The letter instructed that if the conditions set out therein were complied with a foreign bank on receipt of Tueta's sight draft could pay up to $13,550 and that the same would be honored by due presentment to the Tampa Bank. Rodriguez placed $13,550 in the Tampa Bank and the letter of credit was sent to Tueta in Switzerland. Just prior to the letter's expiration date and under circumstances within its terms a Swiss bank accepted Tueta's draft and paid $13,550 thereon. Prior to the time the Swiss bank made timely presentation to the Tampa Bank Rodriguez succeeded in getting a court order enjoining the Tampa Bank from paying out any of the $13,550 and a writ of garnishment thereon was issued. The Tampa Bank was served personally and Tueta was served by publication pursuant to Chapter 48, Fla. Stat. F.S.A. on the theory the $13,550 represented an amount owed by the bank to Tueta and was a res, thus giving the court jurisdiction to proceed quasi in rem.
The injunction is based on an alleged breach by Tueta of the underlying contract between him and Rodriguez which gave rise to the issuance of the letter of credit. For purposes of this appeal we need not delve into either the terms of this contract nor the circumstances surrounding its alleged breach. The only question presented to us is whether or not the court had jurisdiction of a res by virtue of which it could proceed quasi in rem without personal jurisdiction of Tueta and absent presence of the letter itself within the court's jurisdiction.
Appellee maintains that the relationship between Tueta and the Tampa Bank is that of creditor and debtor; that Florida Statute 62.22, F.S.A. authorizes garnishment or attachment of debts owing to a non-resident upon service of process as authorized by law and that Tueta was properly served by publication under Chapter 48, Florida Statutes, F.S.A., and thus the court has quasi in rem jurisdiction.
Appellants contend that the letter of credit is in the nature of a negotiable instrument upon which the Tampa Bank is strictly liable without regard to any dispute between Tueta and Rodriguez. Their position is that the letter is an unqualified promise on the part of the issuing bank to pay the honoring bank if the terms set out in the letter are met. Appellants assert the only way payment under an irrevocable letter of credit could properly be enjoined would be by obtaining jurisdiction of the letter itself or personal jurisdiction of the holder thereof.
We find that the relationship between an issuing bank of an irrevocable letter of credit and the beneficiary of that letter is not that of debtor-creditor so as to give the court where the bank is located jurisdiction of a res upon which its judgment could operate.
*552 A letter of credit is an often-used security device conceived to facilitate commercial transactions carried on over great distances. 2 Fla.Law & Prac., Banks and Banking, § 86, p. 593. A letter of credit partakes of the nature of a negotiable instrument. Michie, Banks and Banking, Vol. 6, § 28, p. 362. It is a chameleon-like instrument changing its nature as different transactions occur and if carried through to completion ends up as a binding contract between the issuing and honoring banks without any regard or relation to the underlying contract or disputes between the parties thereto. See Anno. 30 A.L.R. 1299.
The money deposited in the bank by Rodriguez did not constitute an obligation of the bank to Tueta but rather was placed there to protect the bank from any obligation it might incur through the activities of Tueta relative to the letter of credit. In a sense the money was placed in the bank as indemnity for its strict liability under the letter and as long as there was a chance such liability might occur it is the property of the bank and not that of either Tueta or Rodriguez.
There is no debt owed Tueta by the bank as would support in rem jurisdiction and the orders appealed from are reversed. Because our judgment is for reversal, appellee's motion for reduction of security is denied.
SHANNON and ANDREWS, JJ., concur.
ON PETITION FOR REHEARING
SMITH, Judge.
Appellee-Rodriguez makes the correct contention that the statement in the opinion that the Swiss Bank paid Tueta's draft is not supported by the evidence. The record merely shows that the draft and the letter of credit were delivered to the Swiss Bank. This difference, however, is not material to our decision and we are not concerned with the rights, if any, of the Swiss Bank.
The conditions of the irrevocable letter of credit having been met the promise of the Tampa Bank to pay the draft of Tueta was a binding one and its liability thereon was not limited to nor predicated upon funds placed in the bank by Rodriguez. The deposit is a matter separate and apart from the letter of credit, which is the subject matter of this action. A court may not proceed in-rem or quasi-in-rem when the subject matter of the action is not within the territorial jurisdiction of the court. The petition for rehearing is denied.
SHANNON, Acting C.J., and ANDREWS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586248/ | 253 Miss. 507 (1965)
176 So.2d 282
MISSISSIPPI STATE HIGHWAY COMMISSION
v.
HEMPHILL, et al.
No. 43556.
Supreme Court of Mississippi.
June 14, 1965.
Black & Boykin, Carrollton, for appellant.
*512 Brewer, Deaton & Evans, Greenwood, for appellees.
ETHRIDGE, P.J.
(Hn 1) This is a suit seeking damages under Mississippi Constitution section 17 (1890) for the taking by the Mississippi State Highway Commission, defendant below and appellant here, of an easement for highway purposes. Vassar D. Hemphill, Jr. and M. Simpson Hemphill, appellees, brought this action in the Chancery Court of Carroll County for damages to their executory interest in the tract. Since they initiated it, they have the burden of proving the value of their interest taken and damaged. The chancery court undertook to fix the damages to the executory interest and to place that amount in trust with the court clerk. We reverse and remand, because there was no adequate evidence of damages *513 under the established before and after rule and at the time of taking, which was several years before the trial. We further hold that under the peculiar circumstances here, where owners of the present defeasible fee estate executed a warranty deed to the commission, and the future interest owners made an indemnity agreement with them, it will be necessary to ascertain the cash value of the future interest as well as the entire estate at the time of taking, in order to determine whether complainants have been damaged.
This case is a sequel to Hemphill v. State Highway Commission, 245 Miss. 33, 145 So.2d 455 (1962). Comment, 34 Miss. L.J. 346 (1963). Many of the pertinent facts were reviewed in that opinion. Mrs. Ida Martin Hemphill died in 1952, leaving a holographic will. It was held that the effect of this testament was to devise in fee simple the home place to her son, Everett Hemphill; but, if he dies before his wife (Myrtis), then to her until her remarriage or death, whichever is earlier, with remainder to Vassar, Jr. and Simpson, testatrix's grandchildren and complainants-appellees. The effect of the will was to devise to Vassar and Simpson an executory interest, not a vested or contingent remainder. Everett had a defeasible fee. The future interest was of a sufficiently substantial character to be given the protection of Mississippi Constitution section 17, providing that private property shall not be taken or damaged for public use, except on compensation being made to the owner. The executory interest of Vassar and Simpson was not tenuous but of a substantial nature, with the uncertainty lying only in the event upon which the defeasible fee, in Everett, would end. Hence the first Hemphill case held that the owner of a future interest must show that he owns a compensable interest in the condemned property. Appellees met this test. Secondly, appellees must show that the interest is capable of evaluation. The first Hemphill opinion did not consider that *514 issue, but remanded for further proceedings "to determine the value, if any, of appellant's executory interest taken and allegedly damaged by the commission." No specific method of evaluation of the future interest and damages was prescribed.
(Hns. 2-5) The "home place" contained 120 acres. The highway right of way across it consisted of 3.14 acres. On this land there was a residence, not taken, and other improvements. The chancery court found total damages to the entire estate in the amount of $2,881. The evidence is wholly insufficient to support that finding, for two reasons:
(1) Where part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking. State Highway Comm'n v. Hillman, 189 Miss. 850, 198 So. 565 (1940). Complainants, with the burden of proof as to damages, did not offer evidence under the before and after rule. Moreover, most of the evidence by complainants was on asserted specific damages to particular items, such as fences, water line easement, tenant house, the 3.14 acres actually taken. This was not related to the overall before and after test. Further, the trial court admitted over objection evidence of the sentimental value of the property, which can have no part in determining the market value before and after taking. State Highway Comm'n v. Windham, 241 Miss. 1, 128 So.2d 577 (1961); State Highway Comm'n v. Ratcliffe, 251 Miss. 785, 171 So.2d 356; 18 Am. Jur. Eminent Domain § 242 (1938).
(2) Damages in taking for public use are assessed as of the time of the taking. State Highway Comm'n v. Stout, 242 Miss. 208, 134 So.2d 467 (1961); Pearl River Valley District v. Wood, 172 So.2d 196, 205 (Miss. 1965). Complainants' evidence pertained to values as of the time of trial in 1964. The taking was in 1960. *515 Moreover, this evidence showed there had been a tremendous increase in values between the time of taking and time of trial. The decree referred to the "present" value and "present" damages. All of this was reversible error.
In short, the evidence as to damages to the entire estate taken, and the future interest, was erroneous in nature and insufficient to support the decree. It did not follow the before and after rule, and was directed not to the time of taking, but to the time of trial almost four years thereafter. Accordingly, the decree must be reversed for these errors. See State Highway Comm'n v. Ulmer, 251 Miss. 710, 171 So.2d 126.
(Hn 6) The first step in determining damages, if any, to appellees' future interest is to determine the overall damages to the entire estate resulting from the taking by the commission. This case is being reversed for errors in making such overall determination of damages. The next problem is to determine what portion of properly ascertained damages to the entire estate is attributable to damages, if any, to the future interest of Vassar and Everett. On March 17, 1960, Everett, owner of the defeasible fee, and his wife Myrtis executed a warranty deed to the commission of an easement across the land. The consideration paid was $1,575, after deducting (by agreement with Everett) $200 from the purchase price with the understanding Everett could have the tenant house on the right of way. Thus the gross consideration paid by the commission for the warranty deed was $1,775. That deed recited that it was in full payment and settlement of all claims or demands for damages accruing to the grantors because of construction of the proposed highway.
After this suit was begun, Everett, Myrtis, and the appellees Vassar and Simpson, executed a contract reciting that Everett and Myrtis had given the deed to the commission. Appellees agreed to "save and hold *516 harmless" Everett and Myrtis from all liability to the commission growing out of the deed to the right of way. The contract stated that it was the intention that Everett and Myrtis "shall suffer no loss or liability by reason of said conveyance and the contest" in the present suit by appellees. They agreed to divide proceeds of sales of gravel and timber by one-third to Everett and Myrtis, one-third to Vassar and one-third to Simpson. Paragraph 6 of the contract provided:
All payments heretofore made to E.M. Hemphill or Myrtis W. Hemphill by the Highway Department for the State of Mississippi, for additional right-of-way of Highway 82, as it traverses the hereinabove referred to lands, shall be retained by the said E.M. Hemphill and Myrtis W. Hemphill, without contribution of any part thereof to the above named remaindermen.
(Hn 7) The decree of the trial court found total damages of $2,881 for the entire taking, and undertook to apportion them between Vassar and Simpson, and Everett and Myrtis. Everett and Myrtis were not entitled to participate in any amount in excess of the consideration they received for the warranty deed. The court found that Everett had 14.10% of his 79.17 years of total life expectancy remaining, and Myrtis had a life expectancy of 2.97 years beyond that of her husband, or 3.85% of her total life expectancy in which it must be assumed that she and her husband were entitled to share in the sum of $1575. It thus calculated the amount to which Everett and Myrtis were presently entitled to be $282.71. It ordered the commission to pay to a special trustee, the chancery clerk, $1,071.57, and directed Everett and Myrtis to pay the trustee $1,292.29 (difference between $1575 and $282.71) in trust, on these conditions: If Myrtis died before Everett, then the trustee would pay to Everett the entire amount held in trust. If Everett predeceased Myrtis, then the trust fund should be paid to Vassar and Simpson.
*517 (Hn 8) Even if the total damages had been properly found, the method pursued by the trial court would be erroneous, under the circumstances of this case, for several reasons. To find the value of Everett's life estate, the chancellor took the proportion of his remaining life expectancy to his total life expectancy, and multiplied that figure times the total damages assessed for the taking of the land. This formula is based on the erroneous premise that the value of a life estate to a person owning such is, at the moment of his birth, the total fair market value of the land with the remainder or residue at that point in time valued at zero. The actuarial method generally used by the courts for the computation of a wife's inchoate dower interest has been (1) to ascertain the present value of a possessory estate for life at the present age of the wife; (2) to subtract the present value of a possessory estate for life measured by the period that wife and husband could be expected to both be alive. Jackson v. Edwards, 7 Paige (N.Y.) 386 (1839); Ladshow v. Drake, 183 S.C. 536, 191 S.E. 713 (1937); Strayer v. Long, 86 Va. 557, 10 S.E. 574 (1890); Share v. Trickle, 183 Wis. 1, 197 N.W. 329 (1924); 64 A.L.R. 1053 (1930), 34 A.L.R. 1021 (1925); 5 Powell, Real Property § 665, 666 (1962).
(Hn 9) Moreover, in the instant case this method of computation, with use of a trust fund for owners of the future interest, is not appropriate, because the owners of the defeasible fee and contingent life estate executed a warranty deed to the commission, and the indemnity agreement was made between these grantors and the owners of the future interest, Vassar and Simpson. See Annot., Distribution as Between Life Tenant and Remainderman of Proceeds of Condemned Property, 91 A.L.R. 2d 963 (1963). Everett and Myrtis conveyed their interests to the commission and their claims for all damages for the taking, for a gross consideration of $1775. They were defendants in this suit by appellees, *518 and the commission, a defendant, filed a cross bill against Myrtis and Everett praying for damages for breach of warranty. The maximum damages recoverable by the commission for breach of warranty are measured and limited by the consideration paid by the commission to Everett and Myrtis. Brunt v. McLaurin, 178 Miss. 86, 172 So. 309 (1937). The trial court erred in providing that if Everett survived his wife, the money in the trust fund should be paid to him. He had already conveyed by warranty deed all of his claim for the taking of the right of way. Furthermore, he asked for nothing in this suit, filing no cross bill.
In brief, the use of a trust fund is not available here, because it would necessarily have to provide that if Everett survived his wife, he would have the entire fee, and all money over and above that already paid him by the commission would be transferred to him from the trust fund. Yet he conveyed to the commission his full interest in the easement for the stated consideration. In addition, appellees agreed by the indemnity contract to save and hold harmless Everett and Myrtis from all liability to the commission growing out of their deed to it; and that all payments theretofore made to Everett and Myrtis by the commission should be retained by them without contribution of any part to Vassar and Simpson. Hence, if on retrial the damages for the taking of the future interest do not exceed $1775, this case would be moot. The commission has already paid that, appellees have agreed not to participate in that sum already received by Everett and Myrtis from the commission, and Everett and Myrtis would be liable to the commission to that extent on their warranty deed.
(Hn 10) On remand the trial court should determine the cash value of the damages to the future interest at the time of the taking. We do not prescribe any particular method of doing this. Expert actuarial testimony concerning this fact would be available. One approach *519 would be to begin with calculation of the total damages for the taking at the time of taking. From this should be subtracted the value at that time of Everett's life estate and Myrtis' potential life estate (calculated in the same manner as inchoate dower). This result should then be discounted by the probability at the time of the taking that Everett would outlive Myrtis.
Accordingly, the case is reversed and remanded for ascertainment of total damages for the taking of the future interest as of the time of the taking. Unless such damages exceed the sum of $1775, the bill of complaint should be dismissed. If the damages to the future interest exceed $1775, then the trial court should render a judgment against the commission for the sum in excess of that amount, in favor of the complainants-appellees.
Reversed and remanded.
Gillespie, Jones, Brady and Smith, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586279/ | 116 Mich. App. 128 (1982)
321 N.W.2d 865
ST ONGE
v.
DETROIT & MACKINAC RAILWAY COMPANY
Docket No. 52316.
Michigan Court of Appeals.
Decided May 5, 1982.
Kasoff, Young, Gottesman, Kovinsky, Friedman & Walkon, P.C., for plaintiffs.
Martin, Bacon & Martin, P.C., for defendant.
Before: R.M. MAHER, P.J., and ALLEN and CYNAR, JJ.
PER CURIAM.
The plaintiffs appeal by right the denial of their motion for a new trial by the circuit court on February 16, 1979.
On October 3, 1975, the plaintiffs filed a complaint alleging that, as a result of the defendant's employees' negligence, Emmet St. Onge (the plaintiff), was injured when his motorcycle collided with the defendant's train on June 29, 1974. The engineer *130 of the train, two brakemen, and a conductor were responsible for a "switching" movement near the Miller Street crossing in Alpena on the day of the accident. "Switching" involves a series of movements whereby cars are maneuvered off the main track onto a spur track, and then recoupled with the train for transportation to a predetermined destination. During the switching procedure, the flashers at the crossing were on, and the train's whistle and bell were activated. When the train approached to within 60 feet of the Miller Street crossing, the engineer saw plaintiff heading toward the intersection. The train was moving at a speed of approximately 2 miles per hour; plaintiff was traveling at a speed of 40 to 50 miles per hour. The engineer continued to watch plaintiff as they both approached the crossing, and he continued to blow the train's whistle. When the engineer realized that plaintiff would not be able to stop in time to avoid a collision, the engineer applied the emergency brakes, but (of course) it was too late; plaintiff skidded toward the train after it crossed the intersection. The good times would no longer roll for plaintiff; the accident cost him both legs.
The jury returned a verdict of no cause of action, and the plaintiffs moved for a new trial. The circuit court denied the motion, and the plaintiffs appeal.
The plaintiffs included, inter alia, the following allegations in their complaint:
"5. That the defendant owed a duty to your plaintiff to operate its railroad in a safe and prudent manner so as not to cause injury to the person of your plaintiff.
"6. That the defendant violated that duty by operating said railroad in a careless, negligent and reckless manner, to-wit:
*131 "(a) failing to have flasher lights functioning at the intersection of a public highway;
"(b) failing to place a flag man at the intersection of a public highway to give warning to the vehicular traffic intersecting the railroad track;
"(c) failing to make an observation to traffic proceeding on Miller Street before entering said intersection;
"(d) failing to take the necessary steps to stop the locomotive engine and railroad cars when it became obvious that traffic would be proceeding across the railroad tracks at the public surface highway."
During their case in chief, the plaintiffs attempted to present certain testimony tending to establish "willful and wanton negligence". The defendant objected to the testimony on the ground that the plaintiffs had not pled gross misconduct or gross negligence. The defendant also objected to permitting amendment of the pleadings, claiming that the plaintiffs were attempting to "introduce a totally different theory into the lawsuit, one which would bar defendant's defense of contributory negligence". The circuit court ruled that the plaintiffs' complaint did not allege gross negligence, denied the plaintiffs' motion to amend their pleadings, and refused to instruct the jury on a theory of gross negligence. We reverse.
The term "gross negligence" has at least two meanings in Michigan. Under the common law, an allegation of gross negligence apparently amounts to an allegation that the defendant had the last clear chance to void the accident. Nationwide Mutual Fire Ins Co v Detroit Edison Co, 95 Mich App 62, 66; 289 NW2d 879 (1980). However, an allegation of gross negligence also apparently constitutes an allegation that the defendant failed "to exercise the degree of care that even a careless individual would employ under the circumstances". Nationwide *132 Ins, supra, 67. Under either theory, contributory negligence on the part of plaintiff would not bar recovery.
Although the plaintiffs' complaint could have been more specific, we believe that it gave sufficient notice of the nature of the plaintiffs' claims to permit the defendant to take a responsive position. Simonson v Michigan Life Ins Co, 37 Mich App 79, 83; 194 NW2d 446 (1971). The complaint alleged that the defendant had acted in a "reckless" manner. The term "reckless" refers to a much greater violation of the standard of care than the term "negligent". The term "gross negligence" when it is used to describe an extreme departure from the ordinary standard of care has essentially the same meaning as the term "recklessness". Hence, the defendant received sufficient notice that it would have to defend against this theory.
We still must determine whether the complaint provided sufficient notice to the defendant that it would have to defend against a theory of recovery based on the last clear chance doctrine. The plaintiffs' complaint alleged that the defendant had failed "to take the necessary steps to stop the locomotive engine and railroad cars when it became obvious that traffic would be proceeding across the railroad tracks at the public surface highway". We believe that this allegation provided sufficient notice that the plaintiffs planned to contend that the defendant had the last clear chance to avoid the collision.
We conclude that the circuit court erred in ruling that the plaintiffs' complaint did not allege gross negligence and by failing to instruct the jury in accordance with that theory. Our disposition of this issue makes it unnecessary to decide whether *133 the circuit court also erred in refusing to permit the plaintiffs to amend their complaint.
The plaintiffs also contend that the circuit court erred by failing to instruct the jury that both plaintiff and the defendant had a duty to watch out for each other when entering an intersection. We have carefully reviewed the circuit court's instructions to the jury and have concluded that the court adequately instructed the jury that both parties had a duty to exercise reasonable care when entering a railroad crossing.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. Costs to appellant.
CYNAR, J. (dissenting).
I respectfully dissent from the determination of the majority that the plaintiffs are entitled to a new trial. In my view, Nationwide Mutual Fire Ins Co v Detroit Edison Co, 95 Mich App 62; 289 NW2d 879 (1980), supports a finding that the plaintiffs' complaint was not sufficiently specific to put the defendant on notice that the plaintiffs were claiming more than a case of simple negligence. Nationwide underscores the confusion attendant to the use of various supposedly "standard" terms in allegations of tort liability.
This is not, however, the sole ground of my dissenting opinion. My review of the record convinces me that the evidence offered in support of a theory of "gross negligence", a theory of "last clear chance", or a theory of subsequent negligence was simply not substantial enough to support the existence of such theories. Although the selective presentation of quotations from certain portions of testimony in the plaintiffs' brief might seem to compel the opposite conclusion, such a *134 conclusion appears unwarranted when the statements in question are viewed in context. It is clear that as soon as the engineer realized that plaintiff Emmet St. Onge would not stop, he applied the train's brakes. I think it is apparent that the engineer reasonably thought that plaintiff Emmet St. Onge could have and would have stopped up until the time plaintiff Emmet St. Onge apparently lost control of his motorcycle, going "over the handlebars". I would not find an abuse of discretion on the part of the trial court and therefore the plaintiffs are not entitled to a new trial. Fred Gibbs, Inc v Old Colony Ins Co, 30 Mich App 352, 355; 186 NW2d 396 (1971).
I note that the trial court grounded its ultimate decision on the untimeliness of the plaintiffs' motion to amend the complaint. I find the trial court's ruling proper under the authority of Messer v Floyd Rice Ford, Inc, 91 Mich App 644; 284 NW2d 139 (1979).
For all of the above reasons, I find no error in any of the rulings complained of by the plaintiffs. I would affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586998/ | 944 So. 2d 115 (2006)
Thaddous RAINER a/k/a Bennie Thompson a/k/a Thaddous Erantag Rainer, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2003-KA-01868-COA.
Court of Appeals of Mississippi.
November 28, 2006.
*116 Julie Ann Epps, Samuel H. Wilkins, Canton, attorneys for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
EN BANC.
OPINION ON MOTION FOR REHEARING
KING, C.J., for the Court.
¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted in lieu thereof. After a bench trial, Thaddous Rainer was convicted of possession of more than thirty grams of cocaine and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with eight years suspended, seven years to serve and three years of post-release supervision. On appeal, he challenges the trial court's denial of his motion to suppress *117 evidence taken as the result of an unconstitutional search and seizure. Finding that the trial court abused its discretion in denying Rainer's motion to suppress, we reverse and remand Rainer's conviction.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. During the early part of September 2002, the narcotics division of the Hinds County Sheriff's Department received several complaints about illegal narcotics activities taking place around the Capitol Street area in the City of Jackson, Mississippi. On September 9, 2002, Investigator R.W. Spooner was patrolling the area of Capitol Street when he observed several individuals standing in the parking lot of a gas station located at 612 Capitol Street. In an effort to investigate the situation, Spooner entered the parking lot and pulled up next to a vehicle that was parked at a gas pump. Thaddous Rainer was at the wheel of the vehicle parked at the pump. Spooner then exited his car and identified himself as a police officer. According to Investigator Spooner, Rainer then "began to back out of the parking lot in an effort to flee." Rainer's progress was stymied when Captain Frank Bell maneuvered his car to block Rainer from exiting the parking lot. Upon blocking Rainer's exit, Bell ordered Rainer to step out of the car. Rainer then exited the car and threw several bags under his vehicle. The officers secured Rainer, retrieved the bagswhich were later found to contain cocaine and marijuanaand placed Rainer under arrest for possession of cocaine and possession of marijuana less than one ounce.
¶ 3. At trial on the cocaine charge, Rainer moved to suppress the cocaine on the ground that it was seized as the result of an unreasonable search and seizure of his person under both the Fourth Amendment of the United States Constitution and under Article 3, Section 23 of the Mississippi Constitution of 1890. Rainer claimed that the officers had neither probable cause nor reasonable suspicion for the stop. Citing the United States Supreme Court case of Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) the trial court denied Rainer's motion, ruling that Rainer's attempt to leave the scene in a high crime area gave the police reasonable suspicion to detain him temporarily. Upon receiving this ruling, Rainer waived his right to a jury trial, and a bench trial proceeded. No testimony was adduced at trial, and the only evidence before the court was Investigator Spooner's typewritten report setting forth the details of the stop, and a report from the Mississippi Crime Laboratory identifying the seized substances. The trial judge convicted Rainer of possession of cocaine greater than thirty grams, and sentenced him to a term of fifteen years in the custody of the Mississippi Department of Corrections, with eight years suspended, seven years to serve and three years of supervised probation.
¶ 4. Aggrieved, Rainer filed a timely appeal to this Court, asserting that the trial court erred in denying his motion to suppress. Finding that the trial court erred in its determination that the officers had reasonable suspicion meriting an investigatory stop, we reverse and remand.
STANDARD OF REVIEW
¶ 5. Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion. Mississippi Transp. Comm'n v. McLemore, 863 So. 2d 31, 34(¶ 4) (Miss.2003). "Under this standard, this Court will affirm unless there is a definite and firm conviction that the court below committed a clear error of *118 judgment in the conclusion it reached upon weighing of relevant factors." Caracci v. Int'l Paper Co., 699 So. 2d 546, 556(¶ 16) (Miss.1997).
ISSUE AND ANALYSIS
WHETHER THE TRIAL COURT ERRED IN DENYING RAINER'S MOTION TO SUPPRESS
¶ 6. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890 prohibit unreasonable searches and seizures made without probable cause, except under certain limited exceptions. See United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Walker v. State, 881 So. 2d 820, 827(¶ 14) (Miss.2004). In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, make a brief, investigatory detention without a warrant when the officer has a reasonable suspicion that criminal activity is afoot. Id. at 30-31, 88 S. Ct. 1868. While the "reasonable suspicion" standard is less demanding than probable cause, the Fourth Amendment still requires a minimal level of justification for making the stop. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). Still, an officer who makes such a stop "must be able to point to specific and articulable facts" that justify the intrusion. Terry, 392 U.S. at 21, 88 S. Ct. 1868. In fact, "The officer must be able to articulate more than an `inchoate and unparticularized suspicion or "hunch"' of criminal activity" in order to justify a Terry stop. Wardlow, 528 U.S. at 123-24, 120 S. Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S. Ct. 1868). Furthermore, the reasonableness of official suspicion must be measured by what the officers knew before they initiated the search. Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). Absent reasonable suspicion warranting such a stop, the individual approached by authorities has the right "to ignore the police and go about his business." Wardlow, 528 U.S. at 125, 120 S. Ct. 673. Furthermore, any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Id. (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)).
¶ 7. In the case at bar, the State contends that the officers in this case had reasonable suspicion to detain Rainer temporarily because he purportedly attempted to flee the scene when approached by police operating in what they believed to be a "high crime area."[1] Had there been credible evidence before the trial judge that Rainer had in fact entered into unprovoked flight upon seeing the police, this Court would have upheld the stop under the United States Supreme Court case of Wardlow. In Wardlow, the United States Supreme Court held that it is permissible for courts and police to infer wrongdoing from the fact of unprovoked flight, thus justifying a Terry stop. Wardlow, 528 U.S. at 124, 120 S. Ct. 673 ("Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily *119 indicative of wrongdoing, but it is certainly suggestive of such").
¶ 8. In this case, however, there was no direct evidence that Rainer actually fled from the police. In his report, Spooner stated that when he exited his car and identified himself as an officer, Rainer "began to back out of the parking lot in an effort to flee." This bare, uncorroborated assertion is not supported by any facts submitted by the State. Spooner's report makes no mention of any facts that support the conclusion that Rainer entered into unprovoked flight at the sight of the police. For example, there is no evidence of the speed at which Rainer attempted to exit the parking lot, nor is there evidence that Rainer drove erratically upon trying to leave. Notably, the lack of evidence of flight compelled the trial court to mention that "[i]t may very well have been that [Rainer] was leaving the gas pump simply because he was through getting his gas and had paid for it." Accordingly, in the absence of more detail, we are not prepared to affirm a finding of flight.
¶ 9. We find that the trial court abused its discretion by applying Wardlow in an instance where there was no evidence of unprovoked flight. As the officers in this case did not have reasonable suspicion to detain Rainer, the evidence against him should have been suppressed as the fruit of an unconstitutional search and seizure. See Jackson v. State, 418 So. 2d 827, 829 (Miss.1982); Bessent v. State, 808 So. 2d 979, 983(¶ 12) (Miss.Ct.App.2001).
¶ 10. Finding that the trial court erred in failing to grant Rainer's motion to suppress, we reverse and remand this cause for further proceedings consistent with this opinion.
¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL. ARE ASSESSED TO HINDS COUNTY.
LEE, P.J., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. SOUTHWICK AND ROBERTS, JJ., NO, NOT PARTICIPATING.
GRIFFIS, J., DISSENTING:
¶ 12. The majority opinion relies on Wardlow to reverse Rainer's conviction and finds there was not enough evidence to determine that Rainer attempted to flee. However, even if Rainer merely attempted to leave the gas station, upon seeing the first officer, Rainer voluntarily discarded several bags of marijuana and cocaine away from his vehicle upon seeing the second officer. This case more closely follows California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), than Wardlow. By abandoning the bags, Rainer lost any privacy right to them. Thus, I am of the opinion that the trial court properly admitted the bags into evidence, since no search and seizure violation involving the abandoned property occurred.
¶ 13. The question presented is whether the trial court properly admitted the evidence and not whether the officers illegally detained Rainer. The bags, i.e., the evidence, cannot be fruit of the poisonous tree since Rainer abandoned the property. Had Rainer kept the bags on his person or inside his vehicle, the officers would have been required to articulate their reasonable suspicion that Rainer attempted to flee from them on site.
¶ 14. In Williams v. State, 892 So. 2d 272, 278(¶ 15) (Miss.Ct.App.2004), this *120 Court ruled that Williams's search was not an unreasonable search, as contemplated by the Fourth Amendment, because the evidence was not found on Williams's person, and he could not claim to have had a reasonable expectation of privacy alongside a public road. While not a public road, as in Williams, a parking lot, equally open to the public, should receive the same treatment. This is derived from the premise that "one does not reasonably expect to keep private that which can be seen by the public." Shook v. State, 552 So. 2d 841, 847 (Miss.1989) (citing Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). In Williams, we noted that the principle of abandonment was also pertinent:
[b]y discarding the aluminum foil package, before the police took him into custody, Williams abandoned [the property] and deprived himself of any right to privacy. See California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); Harper v. State, 635 So. 2d 864, 867 (Miss.1994); Bessent v. State, 808 So. 2d 979, 985-86(¶ 20) (Miss. Ct.App.2001). Indeed, the facts of Hodari, in which the defendant abandoned the cocaine he possessed while fleeing from the police, uniquely fit the facts of the case before us. Williams abandoned the crack cocaine before the police took him into custody; it was not the fruit of an illegal seizure.
Williams, 892 So.2d at 278(¶ 15).
¶ 15. In Bessent v. State, 808 So. 2d 979, 985(¶ 19) (Miss.Ct.App.2001), we found that "[o]ur supreme court followed the ruling of the U.S. Supreme Court in California v. Hodari [D.], 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), when it held that evidence seized after being abandoned by a suspect is not the fruit of an illegal seizure." Instead, Bessent voluntarily abandoned the evidence. Id. at 985(¶ 20). This Court did not agree "with Bessent's assertion that he was entitled to the protection of the law against unreasonable searches simply because he may have quickly abandoned the evidence on the mistaken belief that he could be compelled to produce it on the officer's direction." Id. at 985-86(¶ 20).
¶ 16. In Harper v. State, 635 So. 2d 864, 865 (Miss.1994), the suspect threw down a rock of cocaine as he ran away from the police. Harper had not been placed under arrest at the time when he ran. Id. An officer picked it up, and it was admitted as evidence. Id. The court noted that for Mississippi an arrest is consummated when, "there has been a taking of possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest." Id. at 867 (quoting Jackson v. State, 335 So. 2d 116, 118-19 (Miss.1976)). The court then held that "Harper was not seized or arrested when he discarded the drugs. Harper was not in any form or fashion restrained or stopped at the time he threw down the cocaine, and the cocaine, therefore, was abandoned and not the fruit of an unlawful seizure or arrest." Id.
¶ 17. This case only slightly differs from Harper since the police car pulled behind Rainer after it appeared he was going to flee according to the on scene officers. Before the police arrested him or he completely submitted to the demand of the officers, Rainer, upon getting out of his vehicle, threw the bags under the vehicle. Since the search did not occur on his person or in his vehicle but instead occurred of items he discarded in a public place, there was no violation of Rainer's Fourth Amendment rights.
¶ 18. I agree that the State did not present enough evidence to show that *121 Rainer began unprovoked flight akin to that found in Wardlow. From the evidence that the State put on, Rainer may have simply been leaving the gas pump after paying. However, Rainer discarded the items from his vehicle and thus gave away any privacy right in the property he abandoned. Rainer cannot claim that the officers searched or seized him by collecting the abandoned property and recognizing him as the source of that property.
¶ 19. For these reasons I respectfully dissent and would affirm the trial court.
MYERS, P.J., JOINS THIS OPINION.
NOTES
[1] While the fact that a temporary detention occurs in a high crime area is a relevant consideration in a Terry analysis, "[A]n individual's presence in the area of expected criminal activity, standing alone, is not enough to support a reasonable particularized suspicion that [a] person is committing a crime." Wardlow, 528 U.S. at 124, 120 S. Ct. 673. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440641/ | 968 N.E.2d 1067 (2012)
360 Ill. Dec. 314
O'NEILL
v.
STATE GOVERNMENT.
No. 113865.
Supreme Court of Illinois.
May 1, 2012.
Petition for leave to appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587069/ | 783 N.W.2d 872 (2010)
STATE
v.
EMIG.
No. 2008AP2564-CR.
Court of Appeals of Wisconsin.
January 12, 2010.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586824/ | 944 So.2d 1036 (2006)
Clifford G. MARLOWE, as Executor of the Estate of Catherine W. Brown, Appellant,
v.
Richard E. BROWN, Sr., and Huntington National Bank, N.A., Appellees.
Nos. 4D03-3076, 4D04-2071.
District Court of Appeal of Florida, Fourth District.
August 2, 2006.
Rehearing Denied September 22, 2006.
*1037 Stephen Rakusin of The Rakusin Law Firm, A Professional Association, Fort Lauderdale, for appellant, and Russell J. Ferraro, Jr. of Ferraro & Ferraro, P.A., Stuart, withdrawn as counsel after filing brief.
James L.S. Bowdish and Jennifer L. Williamson of Crary, Buchanan, Bowdish, Bovie, Beres, Elder & Thomas Chartered, Stuart, for appellee Richard E. Brown, Sr.
Steven L. Perry of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for appellee Huntington National Bank, N.A.
GROSS, J.
This consolidated appeal arises from divorce and probate cases involving Catherine Brown and Neuberne Brown, Jr. Neuberne died before the entry of a final judgment of dissolution of marriage. We hold that a "mediation settlement agreement" entered into at the beginning of the divorce case does not control the distribution of property after the husband's death.
After a 25-year marriage, the wife filed for divorce on August 21, 2001. The parties came to a "mediation agreement for temporary relief" on September 1, 2001. At the request of the parties, the trial court approved the mediation agreement. Among the provisions of the agreement *1038 was paragraph 11, addressing equitable distribution:
Once the parties reach an agreement as to what their [marital] assets are and their liabilities, they shall divide the assets and liabilities 50/50, excluding the wife's furs and personal jewelry, and the husbands guns and jewelry. Husband represents that the only liability of the parties that he knows of is the mortgage on the Naked Lady Ranch property.
The mediation agreement did not specify what would happen if one of the parties died during the pendency of the divorce action.
The husband counterpetitioned for dissolution, which the wife perceived as an attempt to disavow paragraph 11. The counterpetition sought unequal distribution of the parties' assets and partition of the Naked Lady Ranch, but not of other real property. During the dissolution proceeding, the court neither distributed the real estate nor ordered partition of any property.
In March, 2002, the wife moved to enforce the mediation agreement; the trial court ruled that the mediation agreement was "valid and enforceable until and unless it is set aside." The court found that by the agreement the parties "agreed that the distribution of marital assets shall be 50/50," that neither party "shall claim special equity or disparate distribution of marital assets at trial," and that the "equitable distribution issue remaining for trial is whether an item is marital or not."
The husband moved to set aside the mediation agreement, contending that the agreement was procured by mediator misconduct and that paragraph 11 was merely an unenforceable "agreement to agree." The trial court denied the husband's motion in September, 2002.
On September 25 and 26, 2002, the trial court held an evidentiary hearing to determine the marital and non-marital assets of the parties.
After the September hearing, on November 26, 2002, the wife moved the court to equally distribute 22 investment accounts that the parties agreed were marital accounts.
On January 21, 2003, the court entered an "Order Regarding Evidentiary Hearing Held on September 25, 2003 and September 26, 2002." The order specifically identified the non-marital assets of both the husband and wife. The order listed the parties' extensive marital assets, which included bank accounts, investment accounts, coins, automobiles, personal property, a business, farm assets, and real estate. For five parcels of real estate Greenbrier Farm, Naked Lady Ranch, three Hatteras Lots in North Carolina, and a lot in New Jerseythe court rejected the husband's claim that the real estate was his non-marital property. The order did not place a value on any asset; it provided that the marital assets "shall be split fifty-fifty (50/50) as part of the Court's equitable distribution." The order allowed some accounts to be split immediately "if there [was] no question that they be split fifty-fifty." The court retained jurisdiction to "enter such [other orders] that are necessary given the effect of this Order."
Also on January 21, 2003, by a separate order, the court granted the wife's November 26 motion to distribute joint accounts, and ordered that 22 accounts "be immediately divided 50-50."
On June 30, 2003, the husband died. There had been no final judgment of dissolution, no valuation of the properties, and no plan of equitable distribution.
*1039 On July 1, 2003, Richard Brown, the husband's brother and tentative personal representative of his estate, filed an emergency motion in the divorce proceeding seeking to restrain the wife from disposing of marital property. Richard Brown argued that the divorce had been acrimonious and that he desired to make a proper inventory of the property of his brother's estate.
The wife responded to the personal representative's emergency motion the same day it was filed. She argued that, given the husband's death and the absence of a final judgment, the case should be dismissed. On July 3, the husband's brother moved to intervene in the divorce proceeding.
On July 21, 2003, the court ruled on the motions filed by the wife and the husband's brother in the dissolution action. The order restrained the wife from removing anything from the Naked Lady Ranch and Greenbrier Farm, ordered "everything to remain status quo for 30 days" to allow for a personal representative to be appointed, and ordered the wife to release the husband's address book to his brother. The wife appealed this order.
The husband's brother commenced a probate proceeding by filing a petition for administration. In August, 2003, the wife submitted an answer and affirmative defenses to the petition for administration.
In September, 2003, the wife moved the probate court to declare certain assets to be hers. Among these assets were the Greenbrier Farm, the Naked Lady Ranch, and "Hatteras Lots;" the dissolution judge's January 21 order had found that the husband and wife owned these properties as tenants by the entirety. The wife argued that these lots passed to her by operation of law when her husband died. The wife made similar arguments as to other properties based on the way the properties were titled at the time of the husband's death. For example, the wife argued that 103,114.299 troy ounces of silver passed to her under the provisions of a storage contract which declared that the account was a joint tenancy with right of survivorship.
On May 19, 2004, the probate court denied the wife's motions. The court held, inter alia, that (1) the September 1, 2001 mediation agreement was binding upon the "Widow and the Deceased (or his estate and trust);" (2) the September 1, 2001 mediation agreement "is not nullified by the death of [the husband], but in fact survives the Deceased's death," and (3) all assets of the parties, whether held "individually . . . or Jointly" were "all marital assets to be divided fifty-fifty."
The wife appealed this order.[1]
The wife died on April 1, 2005. Clifford Marlowe, the executor of her estate, has been substituted as a party. The husband's brother, Richard Brown, Jr., is a party in his capacity as trustee of the husband's Revocable Living Trust dated July 25, 2001. The Huntington National Bank opposed the wife's motions in probate in its capacity as the curator of the estate of the husband.
The dissolution of marriage action terminated with the death of the husband and the dissolution judge should have dismissed the case upon the wife's motion. See Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105, 106-07 (1944); Messana v. Messana, *1040 421 So.2d 48 (Fla. 4th DCA 1982); MacLeod v. Hoff, 654 So.2d 1250, 1251 (Fla. 2d DCA 1995); Simpson v. Simpson, 473 So.2d 299 (Fla. 3d DCA 1985); Jaris v. Tucker, 414 So.2d 1164 (Fla. 3d DCA 1982). Because the husband died before the entry of a final judgment of dissolution, this case is unlike those which hold that after the entry of a final judgment, a trial court retains jurisdiction to determine property rights after a spouse's death, if it reserved jurisdiction to do so in the judgment. See Fernandez v. Fernandez, 648 So.2d 712 (Fla.1995); Becker v. King, 307 So.2d 855, 858-59 (Fla. 4th DCA 1975). This case is also unlike Gaines v. Sayne, 764 So.2d 578 (Fla.2000), where a spouse died after a final judgment but before the hearing on a motion for rehearing; the supreme court held that the death did not void the final judgment, where the issues raised on rehearing related to property and other matters "collateral to the adjudication of dissolution." Id. at 586.
In Price v. Price, 114 Fla. 233, 153 So. 904, 905 (1934), the supreme court described the effect of an appellate reversal of a divorce decree, where one spouse dies after the issuance of the decree, but while the appeal is pending:
[O]n such reversal, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had.
Similarly, the husband's death in this case left the wife in the legal position of one whose marriage was terminated by death, and not by a final judgment. Interlocutory orders in a divorce proceeding generally do not survive the dismissal of a lawsuit when a spouse dies before the entry of a final judgment. See Jaris, 414 So.2d at 1166.
Both paragraph 11 of the settlement agreement and the January 21, 2003 order are similar to the oral order of the court in Sahler, which indicated that property "be divided in certain proportions" but did not "make any division of the property." 17 So.2d at 106. The supreme court observed that such vague pronouncements would not have amounted to a final decree even had they been reduced to writing. Id.
The husband's estate contends that the September 1, 2001 mediation agreement, as enforced in the January 21, 2003 order, survives the death of the husband to control the distribution of property after his death. We disagree, because the mediation agreement was too tentative and preliminary to control the disposition of property after the death of the husband.
The husband's estate relies primarily on Snow v. Mathews, 190 So.2d 50 (Fla. 4th DCA 1966),[2] but that case involves a more definite and complete agreement than the one here at issue. In Snow, a husband and wife entered into a separation agreement which provided, among other things, "that their home which was held in an estate by entirety would be sold and the net amount received therefrom divided equally." Id. at 51. Executed in accordance with statutory provisions providing for the conveyance of title to property, the agreement specifically described the property and provided that each party would execute the "necessary papers, documents, *1041 deeds and transfers" to accomplish the division of the asset. Id. at 51-52. About a month after the execution of the agreement, the husband died. The executrix of the husband's estate signed a contract to sell the real estate. A $2,500 binder was divided between the husband's executrix and the wife. Id. at 52. A short while later, the wife died, and her executrix refused to go through with the closing, contending that title to the property had vested in the wife upon the death of the husband. Id.
The purchasers in Snow sued both executrices for specific performance. The trial court ruled that the wife's estate was entitled to all of the proceeds of the sale. Id. We reversed, reasoning that the "separation agreement between the parties discloses that the agreement was clearly intended to be a complete and final distribution of the jointly owned property of the parties including specifically the home place;" as a result, the "contract effectively terminated the estate by entirety" as of the date of its execution, so that the husband and wife became tenants in common "entitled to an equal division of the proceeds of the sale of the property." Id.
The September 1, 2001 mediation agreement in this case was not the "complete and final" distribution that we confronted in Snow. The husband opposed the wife's interpretation of the agreement throughout the divorce proceeding. At most, on September 1, the parties agreed that distribution of marital assets and liabilities would be equal, the beginning premise of all equitable distribution. See § 61.075(1), Fla. Stat. (2004). Paragraph 11 of the settlement agreement identifies no assets. It provides only that the parties will equally divide those assets which they agree are marital. Paragraph 11 does not address what happens to assets which the parties do not agree to be marital. Neither the settlement agreement nor the court's January 21, 2003 order sets forth a plan of equitable distribution of assets and liabilities. Neither the agreement nor the order specifies whether the disputed parcels of real property are to be partitioned and sold or whether each party would receive complete title to parcels of equal value. The January 21 order did not value the assets or determine entitlement to them; it contemplates further discovery regarding certain assets and the ultimate entry of an order of equitable distribution. Like the September 1, 2001 mediation agreement, the January 21 order was interlocutory only, a step in the direction of a final solution, the final judgment that was never entered. See Greenwald v. Blume, 312 So.2d 783 (Fla. 3d DCA 1975). For these reasons, neither the settlement agreement nor the January 21 order survives the death of the husband to control the disposition of property.
We reverse the July 21, 2003 order in the dissolution action and remand to the circuit court with directions that the dissolution action be dismissed. We reverse the May 19, 2004 order of the probate court and remand for further proceedings consistent with this opinion.
WARNER and KLEIN, JJ., concur.
NOTES
[1] The wife does not challenge the trial court's entry of the January 21, 2003 order granting her motion and equally distributing 22 accounts. We therefore do not discuss the application of the doctrine of judicial estoppel. See Grau v. Provident Life & Acc. Ins. Co., 899 So.2d 396 (Fla. 4th DCA 2005).
[2] The husband's estate also cites to Kaylor v. Kaylor, 466 So.2d 1253 (Fla. 2d DCA 1985), which holds that in a divorce case, a partial final judgment concerning the parties' property rights is not void when entered before a final judgment dissolving the marriage. This case does not involve such a final judgment resolving all of the parties' property issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591280/ | 972 So.2d 564 (2008)
Coye A. HOLMAN and Ted Holman
v.
HOWARD WILSON CHRYSLER JEEP, INC.
No. 2005-CT-01154-SCT.
Supreme Court of Mississippi.
January 10, 2008.
*566 Mark W. Prewitt, Vicksburg, attorney for appellants.
Jeffrey P. Hubbard, Jackson, Susan D. McNamara, attorneys for appellee.
EN BANC.
ON MOTION FOR REHEARING ON WRIT OF CERTIORARI
WALLER, Presiding Justice, for the Court.
¶ 1. The motion for rehearing is denied. The original opinion is withdrawn and this opinion substituted therefor.
¶ 2. Coye and Ted Holman filed suit against Howard Wilson Chrysler Jeep, Inc., in the Circuit Court of Rankin County, Mississippi, seeking actual and punitive damages for claims related to their purchase of a 2002 Jeep Grand Cherokee. They made six claims in their original complaint, alleging Howard Wilson: negligently failed to notify them the vehicle they purchased had previously been damaged in an automobile accident; concealed or misrepresented the fact the vehicle had sustained damage; and committed fraud. Howard Wilson answered and, after discovery, filed a motion for summary judgment. At the hearing on the motion for summary judgment, the Holmans expressed their desire to amend their complaint to add a claim that Howard Wilson violated Mississippi's Consumer Protection Act when selling them the Jeep. Miss.Code Ann. §§ 75-24-1 through XX-XX-XXX (Rev. 2000). The circuit court considered the merits of this proposed amendment when hearing the motion for summary judgment, and decided that the additional claim would not change its ruling even if the amendment were granted. The circuit court then allowed the Holmans to amend their complaint, and shortly thereafter entered its order granting summary judgment in favor of Howard Wilson on all claims.[1]
*567 ¶ 3. The Court of Appeals affirmed the judgment of the circuit court in a 9-0 opinion. Holman v. Howard Wilson Chrysler Jeep, Inc., 972 So.2d 645, 2006 WL 3290633, 2005-CA-01154-COA (Miss. Ct.App. November 14, 2006). The Holmans filed a petition for writ of certiorari, which this court granted. We find genuine issues of material fact exist concerning whether Howard Wilson was under a duty to disclose the repaired damage to the Holmans' vehicle prior to purchase, whether the language of the purchase contract is sufficient to place the Holmans on notice of the damage to the vehicle from the prior accident, and whether Howard Wilson violated the Consumer Protection Act when selling the Jeep to the Holmans. Therefore, we reverse the judgment of the Court of Appeals which affirmed the judgment of the circuit court, and remand this matter for further proceedings.
FACTS
¶ 4. The Holmans purchased a 2002 Jeep Grand Cherokee from Howard Wilson on July 30, 2002. The purchase price of the Holmans' vehicle was listed on the purchase contract as $33,685.[2] The Jeep was a demonstrator vehicle and had been driven 8,821 miles when purchased. Within the purchase contract was a clause which states, in full:
4. The Vehicle may have suffered damages and may have had repairs performed on it during prior ownership or usage, during transit or while in the control or possession of Howard Wilson. It is acknowledged that the Vehicle has been inspected in accordance with the law, and that it has been test driven and fully inspected by offeror(s) and all others requested or desired by offeror(s) to do so. The Vehicle is fully acceptable to offeror(s) in its present condition. Howard Wilson has no obligation to furnish any loaner car to offeror(s) or to provide any other substituted transportation to offeror(s) for any reason.
¶ 5. On October 2, 2003, the Holmans' insurance agent informed them that the Jeep was involved in an automobile accident prior to their purchase of it.[3] The Holmans contacted Howard Wilson and confirmed that the vehicle had been in a wreck and was repaired prior to their purchase. The repair bill indicated that several automotive parts were replaced or repaired, including the condenser, deflector, cross-members and brackets, freon *568 and coolant, and the front bumper. The bill for the repairs totaled $2,190.38.
STANDARD OF REVIEW
¶ 6. We apply a de novo standard of review to a trial court's grant of summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006). "The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss.Ct.App.2006) (citing City of Jackson v. Sutton, 797 So.2d 977, 979 (Miss.2001)). If any triable issues of material fact exist, this Court will reverse the trial court's decision to grant summary judgment. Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006).
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO THE HOLMANS' CLAIMS OF NEGLIGENCE, MISREPRESENTATION AND FRAUD.
¶ 7. Howard Wilson made three arguments in its motion for summary judgment: (1) It owed the Holmans no duty to disclose the damage to them due to Regulation One of the Mississippi Motor Vehicle Commission; (2) it had, in fact, disclosed the possibility of damage to them within the terms of the purchase contract; and (3) the Holmans suffered no damages due to the failure to disclose. It reiterates these arguments on appeal. The Holmans argue that the Consumer Protection Act and Regulation One of the Mississippi Motor Vehicle Commission are in direct conflict, and the regulation must give way. Miss.Code Ann. §§ 75-24-1 through XX-XX-XXX (Rev.2000); 50-014 Miss.Code R. § 003-2 (2005).[4] They claim a genuine issue of material fact remains to be tried: Whether Howard Wilson sold the Jeep demonstrator vehicle to them as new.
¶ 8. The Court of Appeals agreed Regulation One "did not require [Howard Wilson] to disclose any damage." Holman, 972 So.2d at 647, 2005-CA-01154-COA at ¶ 7. It also concluded that the disclosure recited above "fulfilled [Howard Wilson's] duty [to disclose] had there been one." Id. at ¶ 12. Finally, the Court of Appeals found the Holmans "failed to show any connection with the prior damage to the damages they allegedly suffered." Id.
¶ 9. The duty to disclose is based upon a theory of fraud that recognizes that the failure of a party to a business transaction to speak may amount to the suppression of a material fact which should have been disclosed and is, in effect, fraud. Welsh v. Mounger, 883 So.2d 46, 49 (Miss. 2004) (discussing Guastella v. Wardell, 198 So.2d 227 (Miss.1967)). According to the Restatement (2d) of Torts:
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated . . .
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and . . .
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter *569 into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
Restatement (Second) of Torts § 551 (1977). See also Welsh, 883 So.2d at 50 (discussing Guastella, 198 So.2d 227, and Restatement (Second) of Torts § 551).
¶ 10. Howard Wilson indicated that its policy was to disclose whether a vehicle had been stolen, had flood damage, or had wreck damage. The Holmans state in their affidavit that they intended to buy a new vehicle when they purchased the Jeep and that they expressed this intention to the salesperson at Howard Wilson. Giving the Holmans the benefit of the doubt and all favorable inferences, their affidavit reflects that the salesperson told them the Jeep was new, as indicated in the title and sales documents. There is enough evidence in the record to find a genuine issue of material fact exists whether Howard Wilson owed the Holmans a duty to disclose the damage prior to the consummation of the sale of the Jeep.
¶ 11. Howard Wilson argues the language within the purchase contract met its duty to disclose: "The Vehicle may have suffered damages and may have had repairs performed on it during prior ownership or usage, during transit or while in the control or possession of Howard Wilson." (Emphasis added). The Holmans bear the burden at trial of proving this language did not put them on notice of the damage to the vehicle done in the automobile accident and the further burden of demonstrating the knowledge of the damage would be material to their purchase of the automobile. We find the adequacy of this notice a question for the jury. See Hobbs Automotive, Inc. v. Dorsey, 914 So.2d 148, 154 (Miss.2005); Lane v. Oustalet, 873 So.2d 92, 95-98 (Miss.2004). See generally Davidson v. Rogers, 431 So.2d 483 (Miss.1983); Averitt v. State, 246 Miss. 49, 63, 149 So.2d 320 (1963) (an affirmative defense is a question of fact to be submitted to the jury).
¶ 12. Howard Wilson also argues it was under no duty to disclose the vehicle's prior damage to the Holmans at the time of purchase, due to Mississippi Motor Vehicle Commission Regulation One. The regulation reads:
On any vehicle, corrected damage exceeding six percent (6%) of the manufacturer's suggested retail price, as measured by retail repair costs, must be disclosed in writing prior to dealer transfers and consumer deliveries. Damage to glass, tires and bumpers and any damaged components or options which can be replaced by identical components are excluded from the six percent (6%) regulation when replaced by identical manufacturer's original equipment.
This regulation does not waive or alter any requirements or obligations which may be created by other Federal or State laws and regulations.
50-014 Miss.Code R. § 003-2 (2005). The retail repair costs associated with fixing the Holmans' car after the accident exceeded the six-percent retail repair costs discussed in the regulation.[5] By its own terms, the regulation required Howard Wilson to disclose this damage to the Holmans in writing, unless some of the costs were excluded from the calculation. The exception within the regulation simply removes *570 the requirement imposed by the regulation that dealers and customers are to be notified in writing of corrected damage repairs performed on a particular vehicle. Nothing in the regulation indicates that Howard Wilson is relieved from its potential duty to disclose as examined above in Welsh.
¶ 13. Howard Wilson argues these repairs are excluded from the calculation as they were "corrected damage" to "damaged components" which were replaced by "identical components." As noted above, the exception in the regulation merely removes the requirement that a purchaser be notified in writing of corrected damage. It does not relieve Howard Wilson of any other requirement under Mississippi law. Further, the regulation offers little guidance as to what constitutes a "component" of a vehicle. It specifically identifies glass, tires and bumpers as qualifying under its disclosure exemption, if replaced. The Motor Vehicle Commission Law offers only indirect guidance. Cf. Miss.Code Ann. § 63-17-55 (Rev.2000) ("`Specialty vehicle' means a motor vehicle manufactured by a second stage manufacturer by purchasing motor vehicle components, e.g. frame and drive train. . . . ").
¶ 14. Howard Wilson identifies the purpose of Regulation One as protecting automobile dealers from being forced to disclose minor damage to vehicles "sustained in transit." The Mississippi Automobile Dealers Association, as amici, similarly state this purpose: "The vast movement and management of a fleet of automobiles in the delivery, sale and marketing to the public dictates there will be instances of damage to vehicles in the process." The Motor Vehicle Commission likewise offers this as the purpose of the regulation in its amicus brief. "Automobiles often sustain minor damage in transit from the manufacturer to the dealer. Often times this damage is as simple as a cracked windshield or a scratch in the paint. As a result, Regulation One was enacted to protect both dealers and consumers." We see nothing in our case law or statutes that disagrees.
¶ 15. Assuming this is the purpose of Regulation One, we find the damage done to the Holmans' Jeep, which was corrected by repairs performed by Howard Wilson, falls outside the purpose of the regulation. This vehicle was involved in an automobile accident, not damaged in transit. The regulation appears to cover new vehicles. It was illegal for the Holmans' demonstrator vehicle to be represented and sold as a new car under the Mississippi Motor Vehicle Commission Act. Miss.Code Ann. § 63-17-73(1)(b)(2) (Rev. 2004). The very purpose of the act which gives the Commission the power to promulgate regulations is to "prevent frauds, unfair practices . . . impositions and other abuses upon the citizens of the State of Mississippi." Miss.Code Ann. § 63-17-53 (Rev.2004). Since the purpose of the regulation and the Mississippi Motor Vehicle Commission Act would not be served by an interpretation of the regulation which allowed a demonstrator vehicle involved in a documented automobile accident to be sold as new after the accident damage is repaired, we find Regulation One offers no relief to Howard Wilson. The circuit court erred in relying upon this regulation to grant summary judgment for Howard Wilson; and therefore, its judgment is reversed.
II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO THE HOLMANS' CLAIMS UNDER THE CONSUMER PROTECTION ACT.
¶ 16. The Holmans amended their complaint with the court's permission to allege *571 a violation of the Consumer Protection Act prior to the court granting summary judgment in favor of Howard Wilson. The circuit court concluded that the addition of this claim would not affect its judgment. A discussion of the effect the summary judgment had on the Holmans' claim under the Consumer Protection Act does not appear in the Court of Appeals opinion, yet the Holmans pursued this claim in their briefs and petition for writ of certiorari. The act allows the Holmans to pursue this claim on their own behalf, so we address it below. Miss.Code Ann. § 75-24-15(1) (Rev.2000).
¶ 17. At the hearing, the Holmans argued that the Consumer Protection Act permitted them to recover damages because Howard Wilson sold them a car it represented as "new" when it was, in fact, "used" or "reconditioned." See Miss. Code Ann. § 75-24-5(2)(f) (Rev.2000). Howard Wilson denied it sold them the demonstrator car as a new car. These arguments, on their face, suggest a genuine issue of material fact exists concerning whether Howard Wilson sold the Holmans the demonstrator Jeep as a new vehicle. We find factual support for the Holmans' argument in the record. Therefore, summary judgment is inappropriate.
¶ 18. In responding to the motion for summary judgment, the Holmans offered their affidavit which provided, in pertinent part:
After looking around for a while we decided upon a new 2002 Jeep Grand Cherokee.
We talked to the sales representative who advised that the Jeep was new as reflected on the title and other applicable sales documents.
When the sales representative stated the Jeep was "new", it carried with it the generally accepted connotation that it had never sustained any damages. Based upon this and other representations of good quality, we decided to, and did, purchase the vehicle on July 31, 2002.
As noted above, the Manufacturer's Suggested Retail Price on the manufacturer's vehicle invoice matched the price of the vehicle listed on the purchase contract the Holmans signed. On the face of the Howard Wilson purchase contract there is one area where one of three boxes can be marked to identify the vehicle being sold as "new vehicle," "demo," or "used vehicle." The area immediately adjacent to the "new vehicle" box was marked on the Holmans' purchase contract. These facts stand in opposition to Howard Wilson's claim it did not sell the Holmans the demonstrator Jeep as new. Since there exists a genuine issue of material fact as to whether Howard Wilson sold the demonstrator Jeep to the Holmans as a new car, the circuit court erred in granting summary judgment to Howard Wilson. Its judgment is therefore reversed, and this matter remanded for further proceedings.
¶ 19. We are urged by the Motor Vehicle Commission and the Mississippi Automobile Dealers Association to find that the Consumer Protection Act and Regulation One do not conflict, as alleged by the Holmans. We agree that the Consumer Protection Act does not conflict with Regulation One. The language of Regulation One specifically states that it does not waive or alter any requirements or obligations created by state law. The purpose of both the Mississippi Motor Vehicle Commission Act and the Consumer Protection Act is to protect the citizens of Mississippi from deceptive and unfair trade practices. Miss.Code Ann. §§ 63-17-53 (Rev.2004), 75-24-5 (Rev.2002). Both the Motor Vehicle Commission Act and the Consumer Protection Act prohibit the sale of a used or reconditioned car as a *572 new car. Miss.Code Ann. §§ 63-17-73(1)(b)(2) (Rev.2004), 75-24-5(2)(f) (Rev. 2002). While the regulation identifies "any Vehicle" within its coverage, we have noted above that the purpose of the regulation is to cover corrected damage done to new vehicles while "in transit." Under the circumstances, we perceive no conflict between the regulation and the Consumer Protection Act.
CONCLUSION
¶ 20. After reviewing the trial court's grant of summary judgment, we find that there exist genuine issues of material fact in this case that should be presented to a jury. Mississippi law allows recovery for damages by fraud as well as for violations of the Consumer Protection Act. Therefore, we reverse the judgments of the Court of Appeals and of the circuit court and remand this matter to the trial court for further proceedings consistent with this opinion.
¶ 21. REVERSED AND REMANDED.
SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., NOT PARTICIPATING.
NOTES
[1] In their complaint, the Holmans also made claims for breach of express or implied warranties and intentional infliction of emotional distress. The merits of these claims were not addressed at the hearing or in the motion for summary judgment, yet the circuit court granted summary judgment and dismissed the entire case. These claims were not raised on appeal and have, therefore, been waived. See, e.g., Vail v. Jackson, 206 Miss. 299, 41 So.2d 357 (1949). The parties have participated in the attorney general's dispute resolution program as required by law. Miss.Code Ann. § 75-24-15(2) (Rev.2000).
[2] There is some discrepancy as to the purchase price of the car. The only executed copy of the purchase contract in the record lists this amount, however, there is what appears to be a draft contract listing the vehicle price as $31,299. This discrepancy is explained by an exhibit in the record. The DaimlerChrysler Motors vehicle invoice in the record identifies $33,685 as the Manufacturer's Suggested Retail Price, and $31,299 as the total price for the vehicle beginning with the Factory Wholesale Price and adding the options included with the vehicle such as leather seats, a trailer tow package, and chrome aluminum wheels.
[3] The record reflects the accident occurred March 12, 2002, when the vehicle had approximately 8,745 miles on its odometer.
[4] This regulation also can be accessed at the Commission's internet website: www.mmvc. state.ms.us/mmvc/MotorVeh.nsf/webpages/ regulations_one?OpenDocument
[5] Six percent of $33,685 is $2,021.10. The retail repair costs listed in the invoice totaled $2,190.38. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/456245/ | 769 F.2d 425
PLAYBOY ENTERPRISES, INC., a Delaware corporation, Plaintiff-Appellee,v.ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Minnesotacorporation, Defendant-Appellant.
No. 84-1762.
United States Court of Appeals,Seventh Circuit.
Argued April 22, 1985.Decided July 30, 1985.
Arthur W. Friedman, Miller, Shakman, Nathan & Hamilton, Chicago, Ill., for plaintiff-appellee.
Robert Marc Chemers, Pretzel & Stouffer, Chtd., Chicago, Ill., for defendant-appellant.
Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and TIMBERS, Senior Circuit Judge.*
FLAUM, Circuit Judge.
1
This diversity case presents the issues of (1) whether the district court properly concluded that the general liability insurance policy issued by the defendant insurance company to the plaintiff insured provided coverage for a libel claim brought against the insured, and (2) whether the district court properly awarded the insured $287,385.23 in attorneys' fees and costs incurred in defending against the libel action. For the reasons stated below, we affirm on the first issue and remand on the second.
I.
2
In 1973, the plaintiff Playboy Enterprises, Inc. ("Playboy") purchased a general liability insurance policy from the defendant St. Paul Fire and Marine Insurance Company ("St. Paul") to cover the period from January 1, 1973, to January 1, 1976. The policy provided that Playboy would be insured against any claims arising from "the publication or utterance of a libel or slander or other defamatory or disparaging material, ... except publications or utterances in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the Named Insured."
3
On May 24, 1974, Penthouse International, Ltd. ("Penthouse") sued Playboy in federal district court, alleging libel and various business torts. This action was based on a letter that John Kabler, one of Playboy's regional advertising managers, had sent to eleven advertisers. The letter erroneously stated that Penthouse had failed to meet its circulation guarantees by not selling the number of magazines that it claimed to be selling. Playboy sent a copy of the summons and the complaint in the Penthouse libel action to St. Paul. When St. Paul notified Playboy that it would not defend Playboy in the libel action, Playboy retained counsel to defend itself and incurred over $400,000 in attorneys' fees and costs. The libel action was subsequently dismissed by the district court.
4
On July 20, 1982, Playboy filed a complaint against St. Paul for breach of St. Paul's contract of insurance, claiming that St. Paul should have defended Playboy against the libel action and that St. Paul should reimburse Playboy for the attorneys' fees and costs that it incurred in defending itself in the libel case. On June 28, 1983, the district court granted Playboy's motion for summary judgment, holding that the distribution of the eleven letters by the Playboy employee was not excluded from the policy's coverage because such a distribution did not constitute advertising. The district court proceeded to award Playboy $395,459.95, which included $287,385.23 in defense costs from the Penthouse libel case and $108,074.72 in prejudgment interest. On October 19, 1983, the district court denied St. Paul's motion to reconsider and vacate the decision.
5
On appeal, St. Paul argues that the district court's decision should be reversed because the insurance policy at issue did not cover suits relating to the defamatory material that Playboy had disseminated. St. Paul alternatively claims that the district court did not correctly compute the amount of attorneys' fees and costs incurred by Playboy. We will address each of these claims in turn below.
II.
A. Insurer's Duty to Defend
6
In a lawsuit by an insured against its insurer following the insurer's refusal to defend its insured, a court must decide whether the insurer's initial refusal to defend breached the insurance contract. Maneikis v. St. Paul Insurance Co., 655 F.2d 818, 822 (7th Cir.1981).1 A court's primary concern in interpreting an insurance policy is to effectuate the intent of the parties as expressed in the insurance contract. State Farm Fire and Casualty Co. v. Moore, 103 Ill.App.3d 250, 255, 58 Ill.Dec. 609, 614, 430 N.E.2d 641, 646 (1981). If the particular policy language at issue in a case is unambiguous, the court will give effect to the plain, ordinary, and popular meaning of the language. Canadian Radium and Uranium Corp. v. Indemnity Insurance Co. of North America, 411 Ill. 325, 332, 104 N.E.2d 250, 254 (1952); State Farm v. Moore, 103 Ill.App.3d at 255, 58 Ill.Dec. at 614, 430 N.E.2d at 646; State Farm Mutual Automobile Insurance Co. v. Childers, 50 Ill.App.3d 453, 456, 8 Ill.Dec. 52, 54, 365 N.E.2d 290, 292 (1977). However, if the policy language is ambiguous, a court will construe such ambiguity in favor of the insured since the insurer drafted the policy. State Farm v. Moore, 103 Ill.App.3d at 255, 58 Ill.Dec. at 614, 430 N.E.2d at 646; Great Central Insurance Co. v. Bennett, 40 Ill.App.3d 165, 171, 351 N.E.2d 582, 588 (1976). This rule of strictly construing ambiguous provisions against the insurer is most rigorously applied in the case of ambiguous exclusionary provisions in which the insurer seeks to limit its liability. State Farm v. Moore, 103 Ill.App.3d at 255, 58 Ill.Dec. at 614, 430 N.E.2d at 646; Dawe's Laboratories v. Commercial Insurance Co., 19 Ill.App.3d 1039, 1049, 313 N.E.2d 218, 225 (1974). Thus, exclusionary provisions are applied to deny the insured coverage only where their terms are clear, definite, and explicit. State Farm v. Moore, 103 Ill.App.3d at 256, 58 Ill.Dec. at 614, 430 N.E.2d at 646.
7
The issue before us is whether the eleven letters sent out by Kabler to advertisers and advertising agencies referring to Penthouse's failure to meet its circulation guarantees constitute a publication or utterance "in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the Named Insured" under the policy's exclusionary provision. We conclude that the exclusionary provision is ambiguous and thus must be construed in favor of Playboy.2
8
The term "advertising" has been defined as follows: "the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public especially by means of printed or broadcast paid announcements." Webster's Third New International Dictionary of the English Language Unabridged 31 (1963). This definition requires that the presentation of the item to be sold or approved be made in a medium directed to the public at large. The district court similarly concluded that the term "advertising" as used in the exclusionary provision referred to promotional material directed to the public at large, especially since the term is used in conjunction with two other terms that connote widespread public dissemination, "broadcasting" and "telecasting."
9
This interpretation of the term "advertising" to mean public or widespread distribution was adopted by the Minnesota Supreme Court in Fox Chemical Co. v. Great American Insurance Co., 264 N.W.2d 385, 386 (Minn.1978). In Fox Chemical, the court held that an alleged defamatory pamphlet prepared by Fox Chemical, the insured, for distribution to its personnel did not constitute advertising within the provision of an insurance policy, which, like the present exclusionary provision, excluded publications or utterances in the course of or related to advertising activities conducted by or on behalf of the insured. Id. In that case, Fox Chemical directed the printing of four hundred copies of a pamphlet to be circulated to the company's distributors to aid them in educating the salespersons employed to solicit purchase orders for the company's new synthetic oil product. Id. Only seventy-four of the four hundred pamphlets were ultimately delivered to distributors, and the pamphlet was never sent out in Fox Chemical's mail advertising campaign to potential customers. Id. One of Fox Chemical's competitors, Amzoil, obtained a copy of the pamphlet and commenced a libel action against Fox Chemical as a result of some defamatory material contained in the pamphlet. Id. at 385-86. Fox Chemical subsequently sued its insurance company for its failure to defend Fox Chemical in the libel action. Id. The Minnesota Supreme Court held that Fox Chemical's insurer had a duty to defend its insured because the limited distribution of the pamphlets to the company's distributors did not constitute a public distribution within the scope of the policy's exclusionary provision. Id. at 386. The court concluded that the provision's reference to advertising activities merely excluded any public or widespread distribution of defamatory material such as by posting the pamphlet in a public place or by reproducing it in the general media or in trade publications. Id.
10
We agree with the district court and the Minnesota Supreme Court in Fox Chemical that the term "advertising" does refer to the widespread distribution of promotional material to the public at large. Thus, if the insurance policy only excluded advertising activities, we would conclude that St. Paul breached its duty to defend Playboy because the dissemination of eleven letters would not constitute the widespread distribution of promotional materials to the public at large. However, the exclusionary provision in the present policy excludes any publication or utterance "in the course of or related to advertising." (Emphasis added). St. Paul argues that in order for Kabler's letters to be outside of the policy's coverage, the letters need only have a connection or affiliation with an advertising activity. St. Paul concludes that Kabler's statements, which were made within the scope of his employment as an advertising manager for Playboy, are connected with and relevant to advertising activities--activities intended to attract Penthouse advertisers to Playboy.
11
In response to St. Paul's interpretation, Playboy argues that if St. Paul's construction of the policy were accepted, then there would never be policy coverage for defamatory written or oral statements that might even remotely be characterized as somehow promoting the sale of advertising space. Playboy stresses that in view of the myriad ways in which its magazine endeavors to promote the sale of advertising space. St. Paul's construction of the exclusionary provision would result in a major gap in policy coverage.
12
We agree that Kabler's dissemination of the eleven letters, while not advertising per se, was related to an activity designed to promote one of Playboy's products, advertising space, to potential buyers of the space and thus appears to come within the plain meaning of the clause "related to advertising activities." However, we are also cognizant of the fact that this construction of the exclusionary provision could completely exclude any activities conducted by Kabler, as Playboy's advertising manager, because one could always attempt to show that any act performed by him was related to an advertising activity. The ambiguous nature of the exclusionary provision is evidenced by Playboy's and St. Paul's varying interpretations of the purpose of the policy. St. Paul claims that the policy only covers publication of defamatory articles and literature in the magazine itself, while Playboy argues that there is nothing in the record or the policy itself to suggest that this was the policy's only purpose. In view of the several equally plausible interpretations that can be placed on the provision, we conclude that the exclusionary clause is ambiguous and that we must construe it in favor of the insured. Therefore, we hold that St. Paul breached its duty to defend Playboy in the libel suit.
B. Attorney's Fees
13
After granting Playboy's motion for summary judgment, the district court awarded Playboy $287,385.23 in attorneys' fees for defending against the libel action and $108,074.72 in prejudgment interest at the statutory rate of 5% per annum. See Ill.Rev.Stat. ch. 17, Sec. 6402 (1983). Playboy submitted evidence to the district court in the present case that it had incurred $389,535.27 in connection with the Penthouse litigation. However, since Playboy had been awarded $102,150.04 in costs and fees in the Penthouse suit by the district court in New York and the Second Circuit as a result of Penthouse's refusal to produce certain of its financial records pursuant to court order, the district court in the present case subtracted the $102,150.04 from the total amount for costs and fees of $389,535.27 for a net result of $287,385.23. The district court added the prejudgment interest to this net result. St. Paul had argued to the district court that more than $80,000 of the attorneys' fees incurred by Playboy were represented on time slips containing undecipherable or nonspecific billing entries such as descriptions of time spent for "legal research." The district court did not address St. Paul's argument in its order on attorneys' fees. St. Paul now claims that the district court's assessment of attorneys' fees and costs against it was erroneous and should be reversed.
14
Under Illinois law, an insurer that breaches its duty to defend its insured is liable to its insured for any defense costs and for the amount of any judgment or settlement. Maneikis v. St. Paul Insurance Co., 655 F.2d at 827. The Supreme Court has held in an analogous context that a district court must provide a concise but clear explanation of its reasons for an award of attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). See also Lynch v. Milwaukee, 747 F.2d 423, 427-28 (7th Cir.1984). This need for adequate explanation by the district court is necessary in order for an appellate court to engage in a meaningful review of the award. Lynch v. Milwaukee, 747 F.2d at 428.
15
In the present case, the district court appears to have adopted without comment the breakdown of costs and fees submitted by Playboy in its reply memorandum in support of its motion for the entry of judgment against St. Paul. The district court did not offer any explanation for its rejection of St. Paul's claim that over $80,000 in attorneys' fees were summarized in undecipherable or nonspecific billing entries. In order to allow us to engage in a meaningful review of the district court's award of $287,385.23 in attorneys' fees and costs, the district court needed to provide a brief explanation of the reasons for its award. This explanation is especially appropriate in a case like the present one where the district court did not have firsthand knowledge of the reasonableness of the fees claimed by Playboy since the court did not preside over the libel suit. Because of the need to have the district court explain the reasons for its award, we must remand that portion of the district court's decision dealing with attorneys' fees, so that a concise explanation of the reasons for the award can be provided to this court.
16
In conclusion, we affirm the district court's decision for Playboy on its claim that St. Paul breached its duty to defend Playboy and remand that portion of the district court's decision dealing with attorneys' fees.
*
The Honorable William H. Timbers, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit, is sitting by designation
1
Under Illinois law there are three options available to an insurer when it receives a request from its insured to defend against claims that, in the insurer's opinion, exceed the policy's coverage: (1) seek a declaratory judgment regarding its obligations before the trial of the underlying action, (2) defend the insured under a reservation of rights, or (3) refuse either to defend or to seek a declaratory judgment at the insurer's peril since a court may later find that the insurer breached its duty to defend. Maneikis v. St. Paul Insurance Co., 655 F.2d 818, 821 (7th Cir.1981)
2
Interpreting Illinois law, this circuit has held that even if recovery in the underlying action against the insured is premised upon several theories of liability, some of which may be excluded from the policy's coverage, the insurer is still obligated to defend its insured if even one theory falls within the scope of the policy. Maneikis v. St. Paul Insurance Co., 655 F.2d at 822. Since we find that Penthouse's third and fourth causes of action for trade libel and conspiracy to libel in its suit against Playboy fall within the scope of Playboy's policy with St. Paul and thus that St. Paul had a duty to defend Playboy in the action, we express no opinion as to whether Penthouse's three remaining counts for intentional interference with contract and business relations, unfair competition, and injunctive relief were also included within the scope of the policy | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1587777/ | 33 So.3d 389 (2010)
Barbara Ann Moss McManus, McCANN
v.
Judson Hugh McCANN, II.
No. 09-1341.
Court of Appeal of Louisiana, Third Circuit.
March 10, 2010.
*391 Kenneth Michael Wright, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Judson Hugh McCann, II.
Brad Guillory Loftin, Cain & LeBlanc, Lake Charles, LA, for Defendant/Appellant, Judson Hugh McCann, II.
Walter M. Sanchez, The Sanchez Law Firm, L.L.C., Lake Charles, LA, for Plaintiff/Appellee, Barbara Ann Moss McManus McCann.
Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
CHATELAIN,[*] Judge Pro Tempore.
Judson Hugh McCann, II, the estranged husband of Barbara Ann Moss McManus McCann, appeals the trial court's August 6, 2009 issuance of a Louisiana Uniform Abuse Prevention Order (sometimes hereinafter referred to as "Domestic Abuse Order").[1] For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Judson and Barbara were married on July 28, 2001. The couple began living separate and apart in early June 2009. On June 29, 2009, Barbara filed a Petition for Divorce and Determination of Incidental Matters. She claimed therein that she was in immediate danger of harassment, and she requested the issuance of an ex parte temporary restraining order (TRO) prohibiting Judson from threatening or harassing her. The trial judge signed the requested TRO on July 2, 2009. Several weeks later, Barbara filed a Petition for Domestic Abuse Protection (PDAP), pursuant to La. R.S. 46:2131-43. Barbara filed the PDAP on behalf of herself and her two minor granddaughters who live next door to her. Barbara noted in the PDAP that Judson had shoved her; threatened her with bodily harm; and struck her with keys, cutting her hand and arm. She further detailed the abuse that Judson had inflicted upon her as follows:
On July 4, 2009, McCann came to Petitioner's home, sweating from jogging and complaining of chest pains. She drove him to his home in the co-owned Mercedes which is in her possession. Once at his home, McCann quit pretending to be ill and made a grab for the car keys in her possession. McCann struck her on the hand and arm with the keys, cutting both. The Lake Charles Police Department was called and a complaint was filed, Case No. 09-006430, and a request for Formal Prosecution has been made for Domestic Abuse Battery.
Subsequently, on July 13, 2009, 3 of the tires on the Mercedes were slashed with a knife in her driveway.
On July 14, 2009, tires were cut on the cars of Brent McManus, Petitioner's son and father of the minors McKenzie & Madison referenced herein. Later that day, lawn furniture and items of movable *392 property belonging to Brent were thrown in the lake at his residence under construction at 238 Shell Beach Drive. Video surveillance from a neighbors home confirmed McCann as the vandal. He has been rearrested, upon information and belief, on felony Criminal Damage to Property Charges.
Petitioner is afraid for the minor grandchildren who are at both addresses [noted in the petition].
The PDAP included a notarized Affidavit/Verification signed by Barbara stating that the allegations contained therein were true and that she believed Judson posed a threat to the safety of her and her granddaughters. The trial court signed an order on July 21, 2009, granting the relief prayed for in the PDAP which, among other things, prohibited Judson from going within one hundred yards of Barbara's residence. Judson was ordered to show cause on August 5, 2009, why the TRO and other requested relief should not be made protective orders.
At the August 5, 2009 hearing, the trial court heard testimony from Barbara and her daughter-in-law, Kim McManus. Barbara's testimony about the key incident basically conformed to her description of the incident in the PDAP. She further expounded upon the incident, explaining that Judson had gotten angry when she refused his offer to come inside once they arrived at his house. Thereafter, he grabbed the keys out of the vehicle and tried to take them off the key ring. In addition to her car key, the key ring also held keys to her home, which had recently been rekeyed. When she demanded that he return her keys, Judson slung his arm at her, cutting her arm and two of her fingers with the keys and causing them to bleed. Barbara identified a photograph labeled as Exhibit P-1 which showed her right arm with a deep scratch and bruise.[2] Barbara stated that after Judson struck her, she walked across the street and called 9-1-1. A unit from the Lake Charles Police Department responded to her call and retrieved the keys for her, and she was able to return home in the vehicle.
Barbara testified about an event that happened just two days prior to the August 5, 2009 hearing. She explained that as she was taking out the trash, Judson drove in front of her house, yelling at her and honking his horn. He then drove down the street, turned around, and drove back to her driveway, where he stopped and told her, "You must really be happy with all the lying you're doing." Barbara explained that Judson was about ten feet away from her during the incident.
When Barbara attempted to testify regarding two incidents that were captured by her neighbor's video surveillance cameras, counsel for Judson objected on the basis that the recordings themselves were the best evidence of their contents. After Barbara explained that both of the original video recordings[3] had been turned over to law enforcement, the trial court overruled Judson's objection and allowed Barbara to testify as to what she saw in the recordings. The first video was taken on July *393 14, 2009, and involved the vandalism of property at Barbara's son's residence. Barbara stated that she recognized Judson in the video. This incident was mentioned in the PDAP. The second video was taken on August 4, 2009, just one day before the scheduled domestic abuse hearing. The video showed someone starting a fire in a dumpster located between her and her son's property. Barbara testified that she recognized Judson's truck in the video.
When Ms. McManus was questioned about the two video recordings, counsel for Judson again objected, but the trial court overruled the objection and allowed the testimony. Ms. McManus testified that she had viewed the two recordings; her testimony regarding both essentially mirrored Barbara's testimony.
Both Barbara and Ms. McManus offered testimony that their vehicles' tires had been slashed while parked on their respective properties; however, both admitted that they had not witnessed the acts of vandalism. Barbara told the trial court that the reason she wanted the abuse order to cover her granddaughters was because they resided in such close proximity to her residence and because they were scared of Judson. Ms. McManus confirmed that her two daughters were afraid of Judson.
Judson refused to testify at the hearing, instead choosing to assert his Fifth Amendment right against self-incrimination on the ground that criminal charges were pending against him. Thereafter, Barbara's attorney requested that the trial court apply an adverse inference against Judson. The trial court acknowledged that Barbara was entitled to the benefit of an adverse inference as a result of Judson's refusal to testify.
At the close of the evidence and testimony, the trial court orally ruled that it was granting the relief Barbara sought. The following day, on August 6, 2009, the trial court signed a Domestic Abuse Order granting a protective order in favor of Barbara and her two granddaughters ordering Judson not to: 1) abuse, harass, stalk, follow or threaten the protected persons in any manner; 2) contact the protected persons personally, electronically, by phone, in writing, or through a third party, without the express written permission of the court; 3) go within 100 yards of Barbara's residence at 240 Shell Beach Drive or her granddaughters' residence at 238 Shell Beach Drive; or 4) damage any of the belongings of the protected persons or interfere with their living conditions. The order further granted Barbara use of the Shell Beach residence and use and possession of the 2003 Mercedes that she and Judson co-owned. Judson was ordered to pay all court costs associated with the hearing as well as Barbara's attorney fees in the amount of $750.
Judson now appeals, asserting that the trial court erred in: 1) finding sufficient evidence of domestic abuse as defined in La. R.S. 46:2132 and 2) in allowing the introduction of evidence of damage to property and in allowing testimony of the contents of video recordings when there was no evidence of any of the exceptions found in La.Code Evid. art. 1004.[4] While *394 not specifically assigned as error, Judson also challenges the authority of the trial court to extend coverage of the protective order to include Barbara's grandchildren.
DISCUSSION
In Rouyea v. Rouyea, 00-2613, p. 3 (La. App. 1 Cir. 3/28/01), 808 So.2d 558, 560, our brethren of the first circuit stated:
Under the Domestic Abuse Assistance Statute, La. R.S. 46:2131, et seq., upon good cause shown in an ex parte proceeding, the court may issue a TRO to protect a person who shows immediate and present danger of abuse. La. R.S. 46:2135(A). If the TRO is granted without notice, the matter shall be set for a hearing within twenty days, at which time, cause must be shown why a protective order should not be issued. At the hearing, the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B).
The standard of review that we must apply was set out in Ruiz v. Ruiz, 05-175, p. 4 (La.App. 5 Cir. 7/26/05), 910 So.2d 443, 445, (citation omitted) as follows:
In cases decided pursuant to the Domestic Abuse Assistance Statute, a trial court's order is reversible only upon a showing of an abuse of discretion. Further, the trial court sitting as the trier of fact is in the best position to evaluate the demeanor of the witnesses and its credibility determinations will not be disturbed by this Court absent manifest error.
Did Barbara prove her allegations of domestic abuse by a preponderance of the evidence?
In enacting the Domestic Abuse Assistance Statute, the legislature noted that its intent was "to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection." La. R.S. 46:2131. According to the statute, "`Domestic abuse' includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another." La. R.S. 46:2132(3). "Battery" is defined, in part, as "the intentional use of force or violence upon the person of another." La. R.S. 14:33. Battery is listed under Part II of the Criminal Code of Louisiana under the title of "Offenses Against the Person." Thus, battery fits the definition of "Domestic abuse" given in the Domestic Abuse Assistance Statute.
In finding that Barbara had met her burden of proof under the domestic abuse statute, the trial court stated that while it "should consider" the evidence that Barbara presented concerning the slashing of vehicle tires and the damaging of items on her son's property, it was focusing on the testimony concerning the physical altercation over the car keys and the photograph *395 submitted as Exhibit P-1 which depicted the injury inflicted upon Barbara's right arm during that struggle. The trial court concluded that the evidence presented regarding the key incident was sufficient to prove domestic abuse whereby Barbara was entitled to protection under the statute. In doing so, it agreed with Barbara's argument that she was not required to show a pattern of violence or abuse in order to receive the relief prayed for in her PDAP.
We agree that Judson's act of striking Barbara on the arm with her keys amounted to domestic abuse. Considering the verified allegations in Barbara's PDAP, along with her testimony concerning the key incident and the photograph documenting the injuries that she received in that incident, bolstered by the adverse inference[5] that arose when Judson chose to assert his Fifth Amendment right against self-incrimination rather than testify regarding Barbara's allegations against him, we cannot say that the trial court abused its discretion in concluding that Barbara proved her allegations of domestic abuse by a preponderance of the evidence. Accordingly, the trial court properly issued the Domestic Abuse Order. Judson's first assignment of error lacks merit.
Did the trial court err in allowing the introduction of evidence of damage to property and in allowing testimony concerning the contents of video recordings?
At the domestic abuse hearing, Judson objected to the trial court's allowance of testimony concerning the video recordings on the basis that the recordings themselves were the best evidence of their contents. On appeal, however, Judson now complains that the trial court erred in allowing testimony of the contents of the recordings when there was no evidence that any of the exceptions found in La. Code Evid. art. 1004 were applicable.
At trial, a party must make a timely objection to evidence that the party considers inadmissible and must state the specific ground for the objection. La. C.E. art. 103 A(1); La. C.C.P. art. 1635. The reasons for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. See Jeansonne v. Bosworth, 601 So.2d 739, 744 (La.App. 1st Cir.1992), writ not considered, 614 So.2d 75 (La.1993). An appellate court will therefore not consider a ground for objection different from the grounds raised at trial. Tutorship of Price v. Standard Life Ins. Co., 569 So.2d 261, 264 (La.App. 2d Cir.1990), writs denied, 572 So.2d 91, 92 (La.1991).
State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 04-1311, p. 9 (La.App. 1 Cir. 6/15/05), 925 So.2d 1, 6-7. Because Judson did not draw the trial court's attention to La.Code Evid. art. 1004 as the ground for his objection to the introduction of testimony concerning the video recordings, he is precluded from urging that ground on appeal.
*396 Nevertheless, as we mentioned previously, the trial court specifically noted that it did not focus on the evidence regarding damage to property in determining that Barbara had met her burden of proof. We, too, conclude that Barbara proved her entitlement to a Domestic Abuse Order against Judson without regard to the testimony that she and her daughter-in-law offered concerning what they saw on the video recordings. Accordingly, any error which the trial court may have committed in allowing testimony concerning the contents of the video recordings would be harmless, not prejudicial, and thus not reversible error. See Duzon v. Stallworth, 01-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, writs denied, 03-589, 03-605 (La.5/2/03), 842 So.2d 1101, 842 So.2d 1110; La.Code Civ.P. art. 1635. Judson's second assignment of error is meritless.
Did the trial court err in granting a protective order in favor of Barbara's grandchildren?
Judson complains that the trial court lacked authority to issue a protective order in favor of Barbara's grandchildren, his step-grandchildren. He bases his argument on the fact that the Domestic Abuse Statute does not specifically list "grandchildren" in the definition of "Family members." Barbara counters that the statutory scheme is broad enough to include any minor child needing protection from an abusive family member. Neither Judson nor Barbara cites any jurisprudence in support of their position. Likewise, we have not found any jurisprudence to offer any guidance regarding this issue.
The Domestic Abuse Assistance Statute provides that "`[f]amily members' means spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children." La. R.S. 46:2132(4). On the other hand, the statute provides that "[t]he court may grant any protective order ... to bring about a cessation of abuse of ... any minor children." La. R.S. 46:2136(A). In addition, the statute directs that "[t]he courts of this state shall use a uniform form for the issuance of any protective or restraining order, which form shall be developed, approved, and distributed by the Judicial Administrator's Office, [and] shall be titled the `Uniform Abuse Prevention Order.'" La. R.S. 46:2136.2(C). The administrative construction given the provision by the administrative agency charged with enforcing it constitutes persuasive interpretive authority. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958). The "Louisiana Uniform Abuse Prevention Order" that Barbara filed appears at pages twenty-four through twenty-eight of the record. The portion of the form describing the persons seeking protection in the order lists the categories of "Family members" mentioned in La. R.S. 46:2132, as well as a category entitled "grandparent or grandchild." Thereafter, there is a category entitled "Other" with a blank provided for writing in an additional category of person(s) seeking protection and their relationship to the defendant. In the PDAP, Barbara listed her granddaughters' relationship to Judson as that of "Other: Step-Grandchildren."
Even if we ignore the testimony concerning the video recordings, other testimony provided at the domestic abuse hearing indicates that Judson continued to come within one hundred yards of Barbara's residence even after the TRO was issued on July 21, 2009. Given the intent and purpose of the Domestic Abuse Assistance Statute, the layout of the Louisiana Uniform Abuse Prevention Order form, and the fact that Barbara's granddaughters *397 live next door to her residence, we cannot say that the trial court abused its discretion in granting a protective order that included them in its scope of protection.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed in all respects. All costs of this appeal are assessed to Judson Hugh McCann, II.
AFFIRMED.
NOTES
[*] Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1] Relying upon La. R.S. 46:2136.1, Barbara asserted in her appellate brief that if this court affirms the trial court's ruling, she is legally entitled to collect all attorney fees and costs associated with defending this appeal. However, at oral argument Barbara withdrew this request, and, thus, the issue of whether she would be entitled to additional attorney fees and costs, if successful, is no longer before us.
[2] Barbara stated that she had also taken a photograph of the injuries to her fingers but that the photograph did not come out.
[3] In a supplemental brief filed in this court, Barbara explained that although the original videos were not available at the trial, on the morning of trial, her daughter-in-law provided counsel with a portable USB drive that contained copies of the two videos. Counsel for Barbara and Judson attempted to view the files, but technical problems hampered their attempts. Ultimately, only one of the files was opened and viewed in the secretarial area. As far as we can tell, this copy of the video was not introduced by either party nor was it viewed by the trial court.
[4] Louisiana Code of Evidence Article 1004, which is entitled "Admissibility of other evidence of contents," provides as follows:
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing;
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue; or
(5) Impracticality of producing original. The original, because of its location, permanent fixture, or otherwise, cannot as a practical matter be produced in court; or the cost or other consideration to be incurred in securing the original is prohibitive and it appears that a copy will serve the evidentiary purpose.
[5] "[I]n a civil case, a negative inference may be drawn against a party to the action who asserts his Fifth Amendment privileges." Econ. Auto Salvage, Inc. v. Allstate Ins. Co., 499 So.2d 963, 977 (La.App. 3 Cir. 1986), writ denied, 501 So.2d 199 (La.1986). In Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976), the Supreme Court stated that in a civil proceeding "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment `does not preclude the inference where the privilege is claimed by a party to a Civil cause.' 8 J. Wigmore, Evidence 439 (McNaughton rev.1961)." In the present case, Judson has not challenged the trial court's application of an adverse inference against him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586400/ | 33 So. 3d 782 (2010)
Karl Ernest HINDLE, Appellant,
v.
Sheila Kay FUITH, Appellee.
No. 5D08-3850.
District Court of Appeal of Florida, Fifth District.
April 23, 2010.
*784 Karl E. Hindle, Richmond, VA, pro se.
C. Kim Banister, Daytona Beach, for Appellee.
ORFINGER, J.
The father, Karl E. Hindle, appeals a final judgment of paternity, which determined that Florida courts have jurisdiction over the custody dispute concerning the parties' eight-year-old daughter; granted custody of the child to the mother, Sheila K. Fuith; ordered monthly child support; and placed the burden of visitation costs entirely on the father. We find that the circuit court had subject matter jurisdiction to make an initial custody determination and acted within its discretion in granting custody to the mother. However, we reverse as to the child support and visitation costs.
Subject matter jurisdiction over child custody matters is governed by the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"), sections 61.502 to 61.542, Florida Statutes (2003).[1]See Arjona v. Torres, 941 So. 2d 451, 454 (Fla. 3d DCA 2006). One of the stated purposes of the UCCJEA is to "[a]void jurisdictional competition and conflict with courts of other states in matters of child custody." § 61.502(1), Fla. Stat. (2003). Under the UCCJEA, a foreign country is treated "as if it were a state of the United States" for purposes of applying the provisions of the UCCJEA. § 61.506(1), Fla. Stat. (2003). A Florida court has jurisdiction to make an initial child custody determination if Florida "is the home state of the child on the date of the commencement of the proceeding." § 61.514(1)(a), Fla. Stat. (2003).[2] "Home state" is defined in relevant part as "the state in which a child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period." § 61.503(7), Fla. Stat. (2003).
The UCCJEA gives jurisdictional priority to the child's home state. Arjona, 941 So.2d at 455. However, the UCCJEA grants an exception to the home state jurisdictional *785 requirement when "[a] court of another state does not have jurisdiction...." § 61.514(1)(b), Fla. Stat. (2003). Therefore, under the UCCJEA, even if Florida is not the child's home state, Florida may exercise subject matter jurisdiction over a child custody matter if another state does not have jurisdiction.
On the date that the paternity action was commenced in this case, Florida was not the "home state" of the child because the child had not lived in Florida for six consecutive months prior to the commencement of the paternity action in November 2003. § 61.503(7), Fla. Stat. (2003). However, no other state had jurisdiction since the mother and the child had lived in several states in the six months prior to their arrival in Florida and the commencement of the paternity action. § 61.514(1)(a)-(b), Fla. Stat. (2003). As a result, because no court of any other state would have had jurisdiction under section 61.514, the Florida trial court had jurisdiction to make an initial custody determination.
In making an initial custody determination, the trial court must evaluate the non-inclusive factors listed in section 61.13(3), Florida Statutes, and determine the best interests of the child. See § 61.13, Fla. Stat. (2008); Fuller v. Fuller, 13 So. 3d 1108, 1109 (Fla. 5th DCA 2009); see Burgess v. Burgess, 347 So. 2d 1078, 1079 (Fla. 1st DCA 1977) (stating that polestar for guidance in custody proceedings is best interests of child). However, there is no statutory requirement that the trial court make specific written findings in a custody decision. See Adair v. Adair, 720 So. 2d 316, 317 (Fla. 4th DCA 1998); Murphy v. Murphy, 621 So. 2d 455, 456-57 (Fla. 4th DCA 1993). Thus, a final judgment is not erroneous simply for failing to list the factors on which it relied in making its determination. Aguirre v. Aguirre, 985 So. 2d 1203, 1206 (Fla. 4th DCA 2008).
Here, the court found that it was in the best interest of the child that the mother have primary residential custody. A finding that primary residential custody is in the "best interests" of the child, whether made in the final judgment or at trial, is sufficient to uphold a custody determination so long as there is substantial competent evidence in the record that permits the court to properly evaluate the relevant factors. Aguirre, 985 So.2d at 1206; see Clark v. Clark, 825 So. 2d 1016, 1017 (Fla. 1st DCA 2002); Bader v. Bader, 639 So. 2d 122 (Fla. 2d DCA 1994). Because no transcript of the final hearing is contained in the record, this Court can review only errors that appear on the face of the judgment. Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). As no error appears on the face of the judgment, this Court is unable to review the evidentiary basis of the court's ruling, and must affirm on appeal. Aguirre, 985 So.2d at 1206.
However, our review of the judgment does reveal several matters requiring further consideration. In determining child support, the court found that the mother earned $8 per hour working twenty hours per week. With respect to the father's income, the court found that he "has the capacity to be employed[,] earning at least minimum wage and has no disability that would prevent him from working a full-time schedule of forty (40) hours per week." The court then calculated the father's current child support obligation to be $623.53 per month, and determined that he owed retroactive child support in the amount of $29,154. The judgment required the father to pay $124.71 per month toward the arrearage for a total support obligation of $748.24. However, in calculating child support, the *786 court never disclosed the net incomes of each party and the parties' respective shares of the child support expenses. And, the Child Support Guidelines Worksheet, which would have provided some insight on this issue, was not attached to the final judgment of paternity as the final judgment indicated.[3]
Child support awards must be supported by substantial competent evidence. Reddick v. Reddick, 728 So. 2d 374 (Fla. 5th DCA 1999). The failure to make adequate findings requires remand for determination of child support. Armour v. McMiller, 15 So. 3d 923, 925 (Fla. 5th DCA 2009); Crouch v. Crouch, 898 So. 2d 177 (Fla. 5th DCA 2005). In making an award of child support, the trial court is required to determine the net income of each parent pursuant to section 61.30, and to include findings in the final judgment. See Deoca v. Deoca, 837 So. 2d 1137, 1138 (Fla. 5th DCA 2003); see also § 61.30(2) (includable income), (3) (allowable deductions), (4)-(6) (determination of net income), Fla. Stat. (2008). On remand, the trial court shall make sufficient findings to permit meaningful review of its ruling on any child support amount, both monthly and retroactive. See, e.g., Aguirre, 985 So.2d at 1207 (explaining that final judgment is facially erroneous, requiring remand, where it does not make any findings as to net income of each party as starting point for calculating child support or explain how calculation was performed); Sumlar v. Sumlar, 827 So. 2d 1079, 1083 (Fla. 1st DCA 2002) (explaining that final judgment must include factual findings sufficiently specific to allow reviewing court to ascertain basis of calculations relating to child support); Savery v. Savery, 670 So. 2d 1034, 1035 (Fla. 4th DCA 1996) (explaining that to determine child support, trial court required to make specific findings with regard to parties' net incomes, derived from gross incomes minus allowable deductions).
The father also contends that the trial court erred when it ordered him to bear all visitation costs associated with visiting the child in Florida. He contends that these costs should be borne equally by both parents. The child was born in the United Kingdom where the father resides and removed to Florida by the mother's unilateral decision. The trial court ruled that the father can only visit the child in Florida, thereby, incurring substantial travel expenses to effectuate his visitation.
The expense of visiting the child in Florida from the father's residence in the United Kingdom is a childrearing expense like any other. See Miller v. Miller, 826 So. 2d 480 (Fla. 1st DCA 2002); Drakulich v. Drakulich, 705 So. 2d 665, 667 (Fla. 3d DCA 1998). Child support guidelines provide that transportation expenses, *787 like other childrearing costs, should be shared by the parents in accordance with their financial means. McKenna v. Fisher, 778 So. 2d 498, 499 (Fla. 5th DCA 2001). On remand, the trial court is directed to reconsider the visitation expense issue. See Bevil v. Carson, 966 So. 2d 1007, 1009 (Fla. 5th DCA 2007).
AFFIRMED in part; REVERSED in part; REMANDED.
TORPY and LAWSON, JJ., concur.
NOTES
[1] "Subject matter jurisdictionthe `power of the trial court to deal with a class of cases to which a particular case belongs'is conferred upon a court by constitution or by statute." Strommen v. Strommen, 927 So. 2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994)). Parties cannot agree to jurisdiction over the subject matter where none exists, and the defense of lack of subject matter jurisdiction can be raised at any time. Cunningham, 630 So.2d at 181. "A trial court's lack of subject matter jurisdiction makes its judgments void...." Strommen, 927 So.2d at 179.
[2] Contrary to the mother's contention, section 61.1312, Florida Statutes (2002), does not apply in this case. In 2002, the Florida Legislature adopted the UCCJEA, to replace the Uniform Child Custody Jurisdiction Act, sections 61.1302 to 61.1348, Florida Statutes, which had included that section. The UCCJEA became effective on October 1, 2002. See ch. 2002-65, Laws of Fla. As this paternity action was commenced in November 2003, the applicable statute is section 61.514, Florida Statutes.
[3] We cannot determine how the court calculated the father's child support obligation. At the time that the final judgment was entered, the federal minimum wage was $6.55 per hour, which multiplied by 40 totals $262 per week and a gross salary of $1,126.60 per month. The court found that the mother earned $8 per hour, which multiplied by 20 hours, totals a gross salary of $688 per month. Thus, the parties' combined gross income is $1,814.60, which under the guidelines provides for the sum of $400 to $410 in monthly child support. While it does not appear that the court used the parties' financial affidavits, even if calculated based on those numbers (which include the father's disability checks), the court's child support calculation is still unclear. According to the father, he has a net monthly income of $2,823.01 and the mother calculates her net income as $1,161.75, for a combined net income of $3,984.76, which under the guidelines provides for $819 to $828 in monthly child support. If the court did use the father's disability benefits to calculate the child support obligation (after finding that he was not disabled), then it must make specific findings, clarifying this source of income. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3085666/ | Opinion filed March 8, 2012
In The
Eleventh Court of Appeals
__________
No. 11-11-00129-CV
__________
TIMOTHY W. BUCHANAN, Appellant
V.
DANA COOLEY, Appellee
On Appeal from the 132nd District Court
Borden County, Texas
Trial Court Cause No. 1176-A
MEMORANDUM OPINION
This appeal arises from Timothy W. Buchanan’s pro se civil action filed against the
district attorney of Borden County. The trial court granted the district attorney’s motion for
summary judgment. We affirm.
Appellant is an inmate in the Institutional Division of the Texas Department of Criminal
Justice. He is currently serving a sixty-year sentence for his conviction occurring on
November 1, 2000, for aggravated sexual assault of a child. Appellant’s conviction arose from
Trial Court Cause No. 192 in the 132nd District Court of Borden County. This court affirmed
his conviction in 2002 in Cause No. 11-00-00368-CR.
This appeal concerns appellant’s indictment in Trial Court Cause No. 193. The grand
jury indicted him for indecency with a child in Trial Court Cause No. 193. Appellant was never
tried for the offense of indecency with a child in Trial Court Cause No. 193 because the trial
court granted the State’s motion to dismiss Trial Court Cause No. 193 on October 29, 2007.
The State based the motion to dismiss on the ground that “[t]he defendant was convicted in
Cause Number 192 on the 1st day of November, 2000, and was sentenced to sixty years in the
Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine.”
Despite the fact that Trial Court Cause No. 193 was dismissed on the State’s motion after his
conviction in the other case, appellant contends that the district attorney is liable to him under a
tort theory of recovery because the indictment stated the wrong term of court. Appellant
additionally contends that the district attorney is liable to him for damages because her brother-
in-law served on the grand jury.1 Irrespective of his conviction and sixty-year sentence arising
from Trial Court Cause No. 192, appellant contends that he suffered damages as a result of the
allegedly defective indictment in Trial Court Cause No. 193 because “it could be use [sic]
against me.”
In a single issue, appellant contends that the trial court erred in dismissing his claims by
granting the district attorney’s motion for summary judgment. The district attorney sought
summary judgment on multiple grounds, including a claim of absolute immunity from suit with
respect to appellant’s claims. We review the trial court’s summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A trial court must grant a traditional motion for
summary judgment if the moving party establishes that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear
Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).
A jurisdictional plea may be asserted in a motion for summary judgment. See Thomas v.
Long, 207 S.W.3d 334 (Tex. 2006). Subject-matter jurisdiction is essential for a court to have
1
Appellant has not cited any authority supporting his contention that the district attorney’s brother-in-law was
disqualified from serving on the grand jury. While a prosecutor that is personally involved in presenting an indictment is subject
to challenge, there is no statutory authority precluding a relative of a prosecutor from grand jury service. See TEX. CODE CRIM.
PROC. ANN. art. 19.31(2) (West 2005).
2
the authority to resolve a case. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex.
1999). Whether the trial court has subject-matter jurisdiction is a question of law that we review
de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex.
Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The
determination of whether a trial court has subject-matter jurisdiction begins with the pleadings.
Miranda, 133 S.W.3d at 226. The plaintiff has the burden to plead facts affirmatively showing
that the trial court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
446 (Tex. 1993). We construe the pleadings liberally in favor of the pleader, look to the
pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda, 133
S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex. App.—Fort
Worth 2004, pet. denied). A plea to the jurisdiction may be granted without allowing the
plaintiff to amend the pleading if the pleading affirmatively negates the existence of jurisdiction.
See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
Immunity from suit deprives a trial court of subject-matter jurisdiction. Reata Constr.
Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). In construing the doctrine of
absolute immunity, Texas courts follow federal jurisprudence and apply the functional approach.
Clawson v. Wharton County, 941 S.W.2d 267, 271 (Tex. App.—Corpus Christi 1996, writ
denied). Under this approach, government officials or actors have absolute immunity when the
complained-of activities were intimately associated with the judicial phase of the criminal
process. Id.
Prosecutors enjoy absolute immunity in initiating prosecutions and presenting the State’s
case. Bradt v. West, 892 S.W.2d 56, 69–70 (Tex. App.—Houston [1st Dist.] 1994, writ denied);
see Imbler v. Pachtman, 424 U.S. 409 (1976); Morrison v. City of Baton Rouge, 761 F.2d 242,
246–48 (5th Cir. 1985). “In construing the doctrine of absolute immunity, Texas courts follow
federal jurisprudence and apply the functional approach.” Clawson, 941 S.W.2d at 271. Under
this approach, government officials or actors have absolute immunity when the complained-of
activities were intimately associated with the judicial phase of the criminal process. Id. “Those
acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial,
and which occur in the course of his role as an advocate for the State, are entitled to the
protection.” Id. at 272. “Absolute immunity will shelter a prosecutor even should he act
maliciously, wantonly, or negligently.” Id.
3
All of appellant’s claims against the district attorney flow from her role in initiating
prosecution against him. Even if appellant’s allegations were true, the district attorney would be
absolutely immune from liability. See Clawson, 941 S.W.2d at 272; Bradt, 892 S.W.2d at 69–
70. Accordingly, the trial court did not err in granting summary judgment in favor of the district
attorney based on absolute immunity.
Moreover, the trial court did not specify the grounds upon which it relied in its order
granting summary judgment. Accordingly, we must affirm the trial court’s order granting
summary judgment if any of the summary judgment grounds are meritorious. See Progressive
County Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009). Because the grounds for
which the order was granted were not specified, appellant is required to defeat all grounds on
which the motion was filed in order to prevail on appeal. See Carr v. Brasher, 776 S.W.2d 567,
569 (Tex. 1989). Given that appellant has failed to attack each independent ground listed in the
district attorney’s motion for summary judgment, he cannot prevail on appeal. Appellant’s sole
issue is overruled.
The judgment of the trial court is affirmed.
PER CURIAM
March 8, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
4 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1586423/ | 33 So.3d 1241 (2010)
M.S.
v.
ALABAMA DEPARTMENT OF HUMAN RESOURCES.
2080540.
Court of Civil Appeals of Alabama.
August 28, 2009.
*1242 Elissa H. Green, Huntsville, for appellant.
Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appellee.
THOMAS, Judge.
M.S. ("the mother") appeals from a judgment terminating her parental rights to her son D.S. ("the child"). We affirm.
The mother is 31 years old; by her own admission, she has been an alcoholic since the age of 16. She suffers from cirrhosis of the liver and paranoid schizophrenia. The Madison Juvenile Court had previously terminated her parental rights to another child. The child who is the subject of the present appeal was born on January 29, 2008. He was removed from the mother's custody on February 8, 2008, when he was 10 days old, following a domestic-violence incident between the mother and her boyfriend. The mother does not know who the child's father is. She stated that there were five men, known to her by their first names only, who could possibly be the child's father.
At the shelter-care hearing on February 8, 2008, the juvenile court determined that the child was dependent and awarded custody to the Department of Human Resources ("DHR"). Following the shelter-care hearing, DHR placed the child in foster care and developed an Individualized Service Plan ("I.S.P.") for the mother. Despite the fact that it was not statutorily required to use reasonable efforts to rehabilitate the mother or to reunite her with the child, see § 12-15-65(m), Ala.Code 1975 (providing that "[r]easonable efforts shall not be required to be made where the parental rights to a sibling have been involuntarily terminated"),[1] DHR assessed the mother's needs and began providing services to her. DHR determined that the mother needed a substance-abuse-treatment assessment, a psychological evaluation, and parenting classes. It proposed to offer her those services plus bi-monthly supervised visitation with her child, transportation, random drug-and-alcohol screening, and parenting classes.
The mother had a psychological evaluation on March 21, 2008, by Dr. Christine Lloyd, a clinical psychologist. Based on a personal interview with the mother, Dr. Lloyd determined that the mother was an alcoholic, that she had been diagnosed as suffering from cirrhosis of the liver and anemia, that she was receiving Supplemental Security Income ("S.S.I.") as a consequence of being a "slow learner," and that she was neither under a doctor's care nor compliant with recommended medical treatments for her physical conditions. Dr. Lloyd testified that, at the time of her evaluation, the mother was incoherent and may have been under the influence of alcohol. Dr. Lloyd was, therefore, unable to make a definitive diagnosis of mental illness, but she noted that the mother's psychological tests indicated that she had a "schizoid personality disorder, with paranoid personality features." Dr. Lloyd recommended that the mother seek medical care for her physical problems and attend an in-patient treatment facility for alcoholism, after which, Dr. Lloyd said, the mother would benefit from psychological intervention and a follow-up psychological evaluation.
*1243 The mother had an alcohol-and-drug-treatment assessment that resulted in a recommendation that she enter a detoxification program immediately. The mother complied with that recommendation and participated in a three-day "detox" program from May 21 to May 24, 2008. In June 2008, the mother participated in group-therapy sessions at Bradford Health Services. DHR provided her with transportation to the sessions. On June 25, 2008, after the mother had attended six sessions at Bradford, the therapist recommended that the mother undergo residential treatment for her alcoholism. The mother refused to enroll in a residential program, and she did not participate in the Bradford group-therapy sessions after June 25. Meghan Nobriga, the mother's caseworker at the Madison County DHR, testified that she did not hear from, and was unable to locate or contact, the mother from June 25 to September 2. On August 25, DHR filed a petition to terminate the mother's parental rights.
On September 2, 2008, the mother telephoned Nobriga to say that she had gone through another three-day detoxification program during which, she said, she had been advised to enroll in a residential alcohol-treatment facility. The mother told Nobriga that the program staff had located a facility for her but that she had chosen a different facility, Phoenix House in Tuscaloosa, and would be leaving soon. The mother was at Phoenix House from the middle of September until December 3, 2008. Nobriga received monthly reports from the Phoenix House staff concerning the mother's progress. The reports indicated that the mother was complying with the program requirements, which, in addition to alcohol-dependency treatment, included G.E.D. classes, parenting classes, and Alcoholics Anonymous ("A.A.") meetings. On three occasions, Nobriga transported the child to Tuscaloosa to visit the mother while she was in residence at Phoenix House.
On December 1, 2008, the mother telephoned Nobriga to inform her that she had completed the Phoenix House program and would be coming home on December 3. Nobriga reminded the mother to provide DHR with her address and telephone number as soon as she returned home so that DHR could resume services to her. The mother did not contact Nobriga again until January 14, 2009.
On that occasion, Nobriga informed the mother that she should have drug-and-alcohol screenings once per week; she told the mother that DHR would provide transportation to the screening site if she needed it. Between January 14 and March 6, 2009 the date of the termination-of-parental-rights trial the mother was scheduled for seven drug-and-alcohol-screening tests; she failed to appear for five of them.
At a scheduled court hearing on December 12, 2008, the mother's attorney had requested that the mother be given a second psychological evaluation. Nobriga made an appointment for the mother with Dr. Lloyd on January 21, 2009; the mother failed to keep the appointment and failed to contact DHR and explain why she would not be there. Nobriga set up a second appointment for February 4, 2009; again, the mother failed to show up or to contact DHR. At trial, the mother testified that she had not received the notice of the first appointment that, Nobriga said, had been mailed to her brother's address because, the mother explained, she was no longer living with her brother. The mother stated that she had missed the second appointment because she was "busy trying to obtain a residence." The mother finally saw Dr. Lloyd for a second psychological evaluation on February 25, 2009, less than *1244 two weeks before the hearing on the petition to terminate her parental rights.
Dr. Lloyd testified that the mother had improved since her first evaluation almost a year earlier; she was coherent and she told Dr. Lloyd that she had conquered her alcohol problem. She stated that she had been "clean" on all her drug-and-alcohol tests. Dr. Lloyd was able to make a definite diagnosis regarding the mother's psychological state. Based on the mother's psychological tests and the mother's history of having experienced auditory and visual hallucinations "all her life," as well as other factors, Dr. Lloyd opined that the mother was suffering from paranoid schizophrenia. Dr. Lloyd also found that the mother had borderline mental retardation.
Dr. Lloyd's recommendations were: first, that the mother should be treated with psychotherapy and medication for paranoid schizophrenia; second, that the mother should participate in an out-patient recovery program for alcoholism, such as A.A., because of the high probability of relapse; and third, that the mother should attend parenting classes. Dr. Lloyd explained that, without treatment for her mental illness and alcoholism, the mother would not be able to parent the child and parenting classes would not be effective.
The mother has not been employed for 10 years. Her sole source of income is S.S.I, benefits of approximately $650 per month. In the first juvenile proceeding with respect to this child, the court waived the mother's child-support obligation. At the time of trial, the mother was living in a one-bedroom duplex and her rent payment was $469 per month. Nobriga's testimony indicated that the mother has never had stable housing, that the mother had lived in 3 different places after returning from the Phoenix House program, and that, for approximately 4 of the 13 months that Nobriga was the mother's caseworker, Nobriga did not know where the mother was or how to reach her. When the termination-of-parental-rights petition was filed, Nobriga had not heard from the mother in two months.
Nobriga testified that, although the mother was allowed supervised visitation with the child twice per month, she had actually visited the child only 9 times in 13 months, and 3 of those visits occurred because Nobriga brought the child to Tuscaloosa to see the mother. Nobriga stated that the mother loves the child and is appropriately attentive and caring during the visits. Nobriga acknowledged that, in the mother's first I.S.P., DHR had identified parenting classes as a service that the mother needed and that DHR would offer her. She admitted that DHR had not provided parenting classes to the mother. Nobriga also conceded that the mother currently needed mental-health treatment and that DHR had never provided her with any mental-health services beyond evaluations, but, she said, DHR had focused first on treating the mother's alcoholism, believing that until the mother's substance-abuse issues were addressed, mental-health or parenting services "would not really benefit" the mother. Pointing out that, after completing the Phoenix House program, the mother had not attended A.A. or any other alcoholism support group and had not reported for five of seven scheduled drug-and-alcohol tests, Nobriga testified that she was not convinced that the mother had maintained her sobriety. Nobriga testified that several maternal relatives had appeared at the shelter-care hearing. She said that DHR had investigated those relatives and had found that none of them were suitable placement resources for the child.
The mother testified that she had first rejected the suggestion that she undergo *1245 residential treatment for her alcoholism because she did not think she needed it, but then, as she became sicker and sicker, she thought she would die if she did not get help, so she enrolled in and completed the Phoenix House program. Responding to a question about her five no-shows for drug-and-alcohol tests, the mother testified that she missed the tests because she had no transportation; she acknowledged that she could have received transportation services from DHR if she had contacted Nobriga, which, she admitted, she did not do. The mother explained that, during the times she had not been in contact with Nobriga, she had "nowhere to live" and the places where she stayed did not have a telephone. In answer to a question about why she did not visit her child more than nine times in more than a year, she said that there was "no reason." She testified, however, that she loved her child and would do "whatever it took" to get him back.
In oral argument to the juvenile court at the conclusion of the testimony, DHR's attorney emphasized the fact that it was not required to make reasonable efforts to rehabilitate the mother because the mother had previously had her rights to another child involuntarily terminated. In response, the mother's attorney argued that DHR had never formally invoked § 12-15-65(m), the statutory provision exempting it from making reasonable efforts, and had never given the mother notice that it would rely on that Code section, but had, instead, provided the mother with rehabilitation services. The mother's attorney maintained that once DHR had begun to make rehabilitation efforts, it was obligated to follow through with those efforts.
The juvenile court entered a judgment determining that the mother had exercised only limited visitation with the child, that DHR had made reasonable efforts at reunification, that there were no less drastic alternatives to terminating the mother's parental rights, that there were no suitable relative placements for the child, that the mother was "unable or unwilling to discharge her responsibilities to the child," and that the mother's "conduct and condition... is such as to render [her] unable or unlikely to change in the foreseeable future."
On appeal, the mother argues (1) that DHR did not exhaust all reasonable efforts to rehabilitate her and to reunite her with the child, (2) that DHR did not present sufficient evidence of her current circumstances, and (3) that the juvenile court failed to consider all viable alternatives to the termination of her rights.
Reasonable Efforts
When required, DHR must establish by clear and convincing evidence that it has made reasonable efforts to reunite a child with his or her parents. See B.J.K.A. v. Cleburne County Dep't of Human Res., 28 So.3d 765, 770 (Ala.Civ.App. 2009) (stating that "[t]here is no question that DHR is required to exert reasonable efforts toward the reunification of a parent and his or her child, except in limited circumstances ...."). One of the circumstances exempting DHR from making reasonable efforts to reunite a parent with a child is present in this case. Section 12-15-65(m) provides that "[r]easonable efforts shall not be required to be made where the parental rights to a sibling have been involuntarily terminated." The juvenile court's finding that DHR made reasonable efforts is surplusage because, not being a matter that DHR was required to prove, it was not necessary to the judgment.
The Mother's Current Circumstances
The mother's argument as to this issue is somewhat disjointed, but we discern *1246 that she is contending that because her circumstances at the time of the termination hearing had improved somewhat over the circumstances that existed at the time DHR opened its case file on her, the termination of her parental rights was premature and she should be given additional time to improve her situation. Specifically, the mother points out that her completion of an in-patient alcohol-abuse program indicated her willingness and ability to do the things necessary to parent her child.
The mother's completion of the in-patient alcohol-abuse program indicates that she decided to comply in September with a recommendation that she had rejected over two months earlier that she enter a residential treatment facility to address her alcohol-abuse problem. Given that DHR was not required to provide the mother with any rehabilitative services before moving to terminate her rights, the mother's window for compliance with the recommendations made by DHR's service providers, or for rehabilitating herself, was narrow indeed. Cf. § 12-15-65(n), Ala. Code 1975, which provides:
"If reasonable efforts are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in situations as described above [outlining aggravated circumstances under which reasonable efforts are not required], a permanency hearing, as provided in Section 12-15-62, shall be held for the child within 30 days after the determination. Reasonable efforts shall be made to place the child and to complete whatever steps are necessary to finalize the permanent placement of the child. Reasonable efforts to place a child for adoption or with a legal guardian or custodian may be made concurrently with other reasonable efforts."
Simply put, if the mother wanted to be reunited with her child, she did not have two months to waste. Moreover, while the mother's completion of the Phoenix House program was commendable, it was only the first step on what, according to the evidence, was likely be a long path towards overcoming her alcohol dependency. The evidence indicated that the mother had not taken any further steps such as participating in A.A. or showing up for substance-abuse testing that could have verified her claimed sobriety. Finally, even assuming that the mother had done everything that was necessary to overcome her alcohol dependency, she was, at the time of the termination hearing, unable to parent her child because of significant unaddressed mental-health issues issues for which DHR was not required to assist her or to "give her more time."
In 1998, the Alabama Legislature, in response to the passage of the federal Adoption and Safe Families Act ("the ASFA") specifically, 42 U.S.C. § 671(a)(15)(D)(iii) enacted § 12-15-65(m), which provides that reasonable efforts to preserve the family or to reunite a parent with his or her child are not required if the parental rights of the parent to a sibling of the child have been involuntarily terminated. In addition, § 12-15-65(m) lists four aggravated circumstances whose existence, if found by a "court of competent jurisdiction," will exempt DHR from making reasonable efforts. Subsection (m) does not require that a prior involuntary termination of parental rights to another child be determined by a court of competent jurisdiction before DHR will be exempt from the reasonable-efforts requirement. For those aggravated circumstances that do require court determination, however, subsection (m) limits to 30 days the time after which a court's determination that reasonable efforts are no longer required must be followed by a permanency hearing. Both provisions one self-executing and one requiring judicial *1247 determinationwere intended to accelerate the process by which a parent's rights are terminated and a child's need for permanency is realized. The purpose and scope of the ASFA were stated in the report of the House of Representatives' Committee on Ways and Means to Congress:
"The Committee bill is expected to increase the number of adoptions in the United States. Three major provisions of the bill were designed to produce this increase in adoptions. First, under current law, States must engage in `reasonable efforts' to help families that have abused or neglected their children. Some observers have argued that uncertainty about the reasonable efforts standard sometimes delays State action in making children available for adoption. In response to this problem, the bill requires States to define `aggravated circumstances' in State law, such as child torture or sexual abuse, that would permit the State to bypass the Federal reasonable efforts criterion and move expeditiously to terminate parental rights and make a child available for adoption. In addition, States would not be required to reunite families in cases where a parent has murdered another child or lost their parental rights to a sibling. . . .
". . . .
"There seems to be almost universal agreement that adoption is preferable to foster care and that the nation's children would be well served by a policy that increases adoption rates. Over the past several years, however, witnesses before the Committee have testified that there are a variety of barriers to adoption, some of them Federal. One barrier is the `reasonable efforts' criterion in the Federal statute. This criterion requires States to make reasonable efforts to prevent removing a child from its home and to facilitate returning children to their homes if removal has been necessary. The intent of this policy is to provide services to families so that they can continue to fulfill their child rearing function.
"However, there seems to be a growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents. As a result, too many children are subjected to long spells of foster care or are returned to families that reabuse them.
"The bipartisan group that wrote this legislation recognized the importance and essential fairness of the reasonable efforts criterion. What is needed is not a wholesale reversal of reasonable efforts or of the view that government has a responsibility to help troubled families solve the problems that lead to child abuse or neglect. The Federal government now spends well over $4.5 billion dollars helping these families and their children. . . . Rather than abandoning the Federal policy of helping troubled families, what is needed is a measured response to allow States to adjust their statutes and practices so that in some circumstances States will be able to move more efficiently toward terminating parental rights and placing children for adoption.
"Thus, the Committee bill would require States to define `aggravated circumstances,' such as child torture, chronic abuse, or sexual abuse, in which States are allowed to bypass the Federal reasonable efforts criteria and instead would be required to make efforts to place the child for adoption. In addition, States would be required to bypass reasonable efforts to provide services to families if the parent has murdered a child, committed manslaughter in the *1248 death of a child, or has another child for whom parental rights were involuntarily terminated."
H.R. Rep. 105-77, at 7-8 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2739-40 (emphasis added). See generally M.A.J. v. S.F., 994 So.2d 280 (Ala.Civ.App.2008) (holding that DHR properly ended reunification efforts after only eight months, when previous reunification efforts had failed and the record indicated that further efforts would be unavailing).
Viable Alternatives
The mother contends that the juvenile court erred by determining that there were no "less drastic alternatives to terminating [her] parental rights." She maintains that an alternative not considered by the juvenile court was to provide her with the parenting classes that, DHR witnesses acknowledged, had been identified as a need for her, but had not been provided to her. That contention is another version of the "more-time-to-improve" argument that we have previously rejected. We reject it in this context for the same reason: because DHR was not required to use reasonable efforts to rehabilitate the mother in order to reunite her with her child, the mother could be reunited with her child only if she rehabilitated herselfi.e., established that she was willing and currently able to parent her childbefore DHR moved to terminate her rights. That did not occur in this case.
The judgment of the Madison Juvenile Court is affirmed.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Section 12-15-65 was effective until January 1, 2009. See Act. No 2008-277, Ala. Acts 2008. Neither the mother nor DHR raises any issue with respect to the applicability of § 12-15-312(c), Ala.Code 1975, a part of the Alabama Juvenile Justice Act of 2008 (see Act No. 2008-277, codified at Ala.Code 1975, § 12-15-101 et seq.), and we, therefore, assume without deciding that § 12-15-65(m) applies in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586441/ | 352 Mich. 97 (1958)
89 N.W.2d 532
MURPHY
v.
ROUX.
Docket No. 40, Calendar No. 47,299.
Supreme Court of Michigan.
Decided April 14, 1958.
van Benschoten & van Benschoten, for plaintiff.
Heilman & Purcell, for defendant.
*98 SMITH, J.
This is an automobile accident case. The appeal is from the grant of defendant's motion for a directed verdict at the close of plaintiff's proofs.
Relating the facts in the light most favorable to plaintiff, she, Mrs. Murphy, was traveling south on South Merrill, a black-top country road. Defendant Roux was traveling west on Colvin, a gravel road. Neither road is superior, although Mrs. Murphy was under the impression that cars entering South Merrill from Colvin were under a duty to stop. As she proceeded south, on her own side of the road, at a speed of from 50 to 55 miles per hour, she observed defendant's car coming from the east on Colvin. It slowed down slightly at the intersection (she thought it was going to stop), then entered South Merrill road. It was the manner of entrance that (allegedly) gave rise to the accident. Mrs. Murphy testified that defendant made a wide turn, that he "pulled way over in my lane and forced me off the highway." She says that he was "completely over" in her lane and that she would have "hit him head-on" had she continued on her course. Accordingly, she says, she swung out to her right onto the shoulder and it was on the shoulder, as she was trying to regain the paved portion, that she hit a cement abutment which caused her injuries.
Upon these facts why is there any doubt about a prima facie case? It was because Mrs. Murphy was a very poor witness. How wide was the traveled portion of South Merrill road? She didn't know. How wide was Colvin road? She didn't know. How fast was she going? That she did know. She had glanced, off and on, at her speedometer. It was between 50 and 55 miles per hour. What speed was defendant going on Colvin road? She didn't know. She did know that he slowed up. Slowed to what speed? "I don't know," she replied. How far north *99 of the intersection was she when she saw him slow down? Again, no idea. "I'm very poor with feet" was the way she put her inability to gauge the distance. Another witness who was present at the scene of the accident testified in her behalf. We will analyze his testimony at a later point. Verdict was directed against plaintiff on the ground that she had not established her freedom from contributory negligence.
We have had before us upon occasion, it is true, cases in which both plaintiffs and defendants have been able to testify with the assurance of surveyors and mathematicians as to distances, speeds, lengths, widths, angles and relative positions. Not all are blessed with faculties so acute. Yet even litigants who, as Mrs. Murphy, are "very poor with feet" may have a cause of action. How far may we retreat from the precision of the well-drilled witness with his mental stop watch and yardstick before we must hold that the case has dissolved into such vagueness and uncertainty as not to merit submission to the jury? We probably answer very little when we say that it depends upon the nature of the case, the showings made, and the reasonable inferences to be drawn therefrom. Yet all would concede that the fraction of an inch crucial on the question of negligence in brain surgery speaks not with the same authority on the question of negligence involving 2 automobiles on a country highway.
Here the crux of the argument centers around the distance of plaintiff from the intersection at the time the defendant commenced his alleged roundhouse turn, swinging all the way onto the wrong side of the road and approaching the oncoming driver thereon. Was plaintiff's car then right on top of the intersection, so to speak? In other words, was there an emergency situation in which reflexes must respond in fractions of a second? Or was plaintiff *100 a comfortable distance away, in a position to observe defendant's wide-sweeping turn with the detachment of an interested observer, having ample time to reflect and act? In short was she so close that she was involved in his turn almost as a participant or was she so far distant that she was a mere spectator? We agree with defendant that if the favorable view of the testimony would leave the record silent on this point, plaintiff's proofs as to her freedom from contributory negligence would have been deficient.
But the record is not so silent. Here the location of the automobiles involved is made reasonably specific by the testimony of Mrs. Murphy, supplemented by that of her witness Becker. Mrs. Murphy had testified that the 2 cars passed each other, prior to her crashing with the abutment, "right along by the gas station there." (Exhibit 10, a photograph of a blackboard drawing of the area used at the trial, shows the intersection of South Merrill and Colvin roads, at or near which intersection is situated a gasoline filling station.) Witness Becker testified that he was sitting in his father's car, in front of the gasoline pumps at this filling station, facing north (the direction from which Mrs. Murphy was approaching). From this position, he testified on direct examination, he saw Mrs. Murphy's car when she turned onto the shoulder, which spot was approximately 90 feet north of him, and, turning around, saw that "she hit the abutment." He did not see her pass. "I just saw the dust. It was that quick." (Mrs. Murphy had testified that it all happened in a "split second.") It was brought out on cross-examination that Mr. Becker did not actually see her turn onto the shoulder some 90 feet away. That point, he says, is where the cloud of dust started. But it would seem a reasonable inference, well within the jury's competence, that the dust was *101 raised by Mrs. Murphy's car. There was no other traffic on the road. In addition, Mr. Becker testified that when defendant stopped his car, the front bumper was slightly over the center of the road with the car headed in a northwesterly direction. Upon these facts a jury would be justified in finding that a sudden emergency had been created by defendant's acts and that Mrs. Murphy's reaction thereto was not unreasonable.
The words of Mr. Justice BLACK'S concurrence in Davis v. New York Central R. Co., 348 Mich 262, 273, 274, are applicable to the facts before us. It was there said:
"The question, then, brought here by plaintiff, is whether the judge was right in assuming to determine the issue himself.
"The problem of contributory negligence is usually complicated by the necessity of taking into account 2 sets of causally-connected circumstances affecting conduct of different persons in this case the plaintiff motorist and the defendant's engineer. Whether plaintiff was contributorily negligent depends, in part, on what if anything he had a right to expect of the engineer. This requisite of dual view of the action of 2 persons `if the danger depends at all upon the action of any other person,' when a court undertakes consideration of a motion for instructed verdict aimed at contributory negligence, is the essence of and reason for our general rule that `the question of negligence is a question of fact and not of law.' (Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 118, 119.)
"Our difficulty in recent years is due, I think, to a want of reflective thought upon the fenced-in position the moving party occupies when he asks that the court decide the issue of contributory negligence to exclusion of the jury. Actually, and when a defendant moves that the court so decide, he concedes for the purposes of his motion all that his opponent *102 may rightfully claim from the evidence (Van Steinburg, p 118 of report). * * * The case must now, as in the days of our Court from COOLEY through FELLOWS, be a very clear one which will justify the court in taking upon itself the responsibility of instructing a verdict on assigned ground of contributory negligence."
See, also, Hopkins v. Lake, 348 Mich 382.
It is our conclusion that the issues in this case should have been presented to the jury. The judgment is reversed and the cause remanded for a new trial. Costs to appellant.
BLACK, EDWARDS, VOELKER, and KAVANAGH, JJ., concurred with SMITH, J.
DETHMERS, C.J., and CARR and KELLY, JJ., concurred in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586447/ | 89 N.W.2d 94 (1958)
STATE of North Dakota, ex rel. PUBLIC SERVICE COMMISSION, Plaintiff and Respondent,
v.
MONTANA-DAKOTA UTILITIES CO., a foreign corporation, Defendant and Appellant.
No. 7741.
Supreme Court of North Dakota.
March 31, 1958.
*95 Cox, Pearce & Engebretson, Bismarck, Earl H.A. Isensee, Minneapolis, of counsel, for defendant and appellant. Leslie R. Burgum, Atty. Gen., and Gerald G. Glaser, Commerce Counsel, Bismarck, for plaintiff and respondent.
*96 Richard P. Gallagher, Mandan, amicus curiae.
MORRIS, Judge.
The defendant and appellant, Montana-Dakota Utilities Co., is a corporation engaged in the operation of public utilities in the state of North Dakota and as such is subject to regulation by the Public Service Commission of the state pursuant to statutory authority and direction. This controversy involves rates charged or to be charged by the appellant for the sale of electric energy.
In 1948 the Public Service Commission approved a schedule of rates to be charged by the appellant. On or about April 17, 1957 the appellant filed with the Public Service Commission a new and increased schedule of rates accompanied by a notice that they were to be effective thirty days after the receipt thereof by the Commission which included the statement that:
"This application is submitted in accordance with the provisions of the North Dakota Revised Code of 1943, Chapters 49-05 and 49-06."
On May 7, 1957 the appellant filed an amendment of the schedule above described. On May 13, 1957 the Commission adopted by unanimous action a motion:
"that the revised schedule of electric rates for various classes of service as filed by the Montana-Dakota Utilities Company and which has been docketed as Case No. 5576 be suspended until further order of the Commission."
On the following day the secretary of the Commission wrote the appellant as follows:
"This is to advise you that on May 13, 1957, the Commission suspended until further order the application of Montana-Dakota Utilities Company for an increase in electric rates covering various classes of electric service in North Dakota.
"The matter has been docketed as Case No. 5576. You will be promptly informed of any further action taken by the Commission."
Under date of June 4, 1957, which was within thirty days after the filing of the amended schedule, the Commission gave notice to the appellant that an initial public hearing would be held with respect to the reasonableness of the proposed rate schedules on July 1, 1957. On September 10, 1957 the Commission gave notice that the hearing would be resumed. The resumed hearing was completed October 9, 1957. On or about November 2, 1957 the appellant notified the Commission and its consumers by letter that the new rate schedules went into effect on October 5, 1957 and that all service rendered after October 4, 1957 would be billed by the company at the new rates.
On November 6, 1957 the Commission instituted this proceeding in the District Court of Burleigh County reciting in substance the facts above set forth and alleging that a hearing had been held by the Commission on the appellant's application and new rate schedule and that the Commission was in the process of reviewing the evidence preparatory to rendering a decision. It was further alleged that on May 13, 1957 the new rate schedule was suspended by the Commission and that the suspension was never modified, revoked or altered. It was also alleged that the rate schedule approved by the Commission in 1948 is still in full force and effect but that unless the Montana-Dakota Utilities Company is restrained by the court it will collect rates from its customers pursuant to its letter of November 2, 1957 and that such rates are in excess of those set out in the schedules of 1948 and are unlawful, unauthorized and improper. The Commission then asked the court to enjoin the appellant from instituting and making effective its proposed new rates pending the further order of the Commission.
The appellant answered and alleged the filing of its new rate schedules and the motion *97 of the Commission of May 13, 1957 purporting to suspend the effective date of the new schedules until the further order of the Commission. It also alleged that a hearing was held by the Commission on its own motion to inquire into the reasonableness and fairness of the new rates, which hearing was held on July 1, 1957 and resumed on October 8 and 9, 1957, but that no order had been issued by the Commission up to the date of the answer which was November 27, 1957. Appellant further alleged:
"That the resolution of the Public Service Commission suspending the effective date of said new rate schedules could not, under the law, be effective for more than 120 days after the initial 30 day notice period, and that no other resolution or order of the Commission suspending the effective date of said rate schedules was made, except that of May 13, 1957, and that said new rates and schedules of charges became effective and became the legal rates and charges for the company on the 5th day of October, 1957."
This paragraph of the answer sets forth appellant's position with respect to the main issue of this controversy.
After a hearing had in the District Court, judgment was entered enjoining the appellant from charging and collecting the proposed rates for 90 days from November 29, 1957 and directing the Public Service Commission to take appropriate action during that period.
The Montana-Dakota Utilities Co. appealed from that judgment. At the time the case was argued in this court on February 5, 1958 counsel were agreed that the Public Service Commission had decided the matter and had entered its order accordingly. The primary question is whether it was lawful for the appellant to charge and collect rates pursuant to the new schedule after October 4, 1957. The case is here for trial de novo on demand of the appellant.
This controversy involves the interpretation and application of two statutes. The first is Section 49-0505, NDRC 1943 which provides:
"No change shall be made by any public utility in any tariffs, rates, joint rates, fares, tolls, schedules, classifications, or service which have been filed and published by any public utility, except after thirty days' notice to the commission. Such notice shall state plainly the changes proposed. The commission for a good cause shown, may allow changes upon less than the notice herein specified, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions."
The appellant contends that under this section a public utility may file a new schedule of rates regardless of the origin or source of the old ones and that the new schedule when accompanied by proper notice to the commission will become effective thirty days after filing unless suspended pursuant to the procedure provided by the succeeding Section 49-0506, NDRC 1943 without reference to whether rates to be charged are increased or decreased by the new schedules.
The Commission points to Section 49-0511, NDRC 1943 which provides that:
"Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in such order or until revoked or modified by the commission, unless the same is suspended, modified, or revoked by order or decree of a court of competent jurisdiction."
It is argued that in this case a schedule of rates was approved by the Commission December 8, 1948 which can be changed only by another order of the Commission *98 or by the decree of a court of competent jurisdiction in a proper case. It is particularly urged that Section 49-0505, NDRC 1943 is not applicable where the rates filed exceed those named in an outstanding unrevoked order of the Commission.
The source of the three sections above referred to is Chapter 192, Session Laws N.D.1919 which was our first comprehensive regulatory statute pertaining to rates, charges and services of public utilities. The identical language of Section 49-0511 is to be found in Section 3 of the original act. See also Section 4609c3, 1925 Supplement to Compiled Laws.
Section 49-0505, NDRC 1943 is an amendment of the first paragraph of Section 14 of the original Act which read:
"No change shall be made by any public utility in any tariffs, rates, joint rates, fares, tolls, schedules or classifications, or service in force at the time this Act takes effect, except after thirty days' notice to the Commissioners, which notice shall plainly state the changes proposed, and, upon a showing before the Commissioners and finding by the Commissioners that such increase is justified."
This paragraph was amended to read in its present form by Chapter 207, Session Laws N.D.1937. In rate litigation arising prior to the amendment the expressions of this court are in accord with the views expressed by the Commission:
"As we construe the Public Utilities Act, rate increases cannot be ordered except after notice and hearing." City Commission of Bismarck v. Bismarck Water Supply Company, 47 N.D. 179, 181 N.W. 596, 600.
"Before a schedule can be adopted, the interested parties must have had a hearing upon notice." Lyons v. Otter Tail Power Co., 68 N.D. 403, 280 N.W. 192, 194.
However, Chapter 207, Session Laws N.D.1937 wrought a drastic change in procedure pertaining to the promulgation and adoption of rates and other specified matters involving rates and services of public utilities. The discretionary power of the Commission was greatly enlarged. No longer did the statute compel it to hold a hearing or make any finding with respect to every proposed increase in rates by a public utility. Where rate schedules were filed and noticed pursuant to Section 49-0505 non-action by the Commission resulted in the proposed rates becoming effective. The amendment came in conflict with Section 3 of Chapter 192, Session Laws N.D.1919 (Section 49-0511, NDRC 1943) and to the extent of the matters particularly covered by the amendment it superseded and repealed that older and more general statute.
"When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict." Sutherland Statutory Construction, 3rd Ed., Sec. 2012.
"The subsequent enactment of a statute which treats a phase of the same general subject matter in a more minute way consequently repeals pro tanto the provisions of the general statute with which it conflicts."
Sutherland Statutory Construction, 3rd Ed., Sec. 2022; State ex rel. Lofthus v. Langer, 46 N.D. 462, 177 N.W. 408; Hagstrom v. Estherville School Dist. No. 43, 67 N.D. 56, 269 N.W. 93.
Having determined that Section 49-0505, NDRC 1943 is applicable to the schedules filed by the appellant with the Public Service Commission it follows that Section 49-0506 is also applicable and these two sections *99 must be considered together in determining if or when the schedules filed by the appellant became effective.
It is interesting to note that our original Public Utilities Act, Chapter 192, Session Laws N.D.1919, contained a number of similar provisions and some of the identical language found in the Illinois Public Utility Act (Laws 1913, page 478). Section 36 of that Act corresponded in a large measure to Section 14 of our original Public Utility Law. See Illinois Bell Telephone Co. v. Commerce Commission, 304 Ill. 357, 136 N.E. 676, 677. In interpreting the Illinois statute in that case the court said:
"Whenever a schedule of a change of rates is filed with the Commission, that body may upon complaint, or upon its own initiative, enter upon a hearing and investigation concerning the propriety of such change of rates, charges, etc., and during that hearing the rates shall not go into effect. Section 36 contains a proviso, however, that the period of suspension of the rates, charges, etc., shall not be more than 120 days beyond the time when the same would otherwise go into effect, unless the Commission extends the period of suspension for a term of not more than 6 months. It is clear from the language of this section that the power to suspend rates is limited to a period of 10 months after the time at which the schedule would otherwise have gone into effect."
The Illinois act also provided that the Commission should make findings before allowing a rate increase to become effective but that provision was repealed in 1921, S.H.A. ch. 111 2/3, §§ 1 et seq., 91. Antioch Milling Co. v. Public Service Co. of Northern Illinois, 4 Ill.2d 200, 123 N.E.2d 302, 305, wherein the court said:
"The substantive requirement that rate increases have the prior approval of the commission has been repealed, and the decision whether to suspend them has been committed to the discretion of the commission."
Section 49-0506, NDRC 1943 provides that when a notice or schedule resulting in an increase or decrease in any rate is filed with the Commission, the Commission upon a complaint or its own initiative may order a hearing upon due notice:
"and pending the hearing and decision thereon, such rate, classification, contract, practice, rule, or regulation shall not go into effect, but the period of suspension thereof shall not extend more than one hundred twenty days beyond the time when it otherwise would go into effect, unless the commission extends the period of suspension for a further period not exceeding six months."
This section further provides that on the hearing the Commission shall establish rates which it shall find to be just and reasonable. At the hearing the burden is on the utility to show that a proposed rate is just and reasonable.
"All such rates, classifications, contracts, practices, rules, or regulations not so suspended, on the expiration of thirty days from the time of filing the same with the commission, or of such lesser time as the commission may grant, shall go into effect * * * subject to the power of the commission, after a hearing had on its own motion or upon complaint, to alter or modify the same."
The language quoted from this section appears in substantially the same form in the second paragraph of Section 14 of our original Public Utilities Act.
In City of Edwardsville v. Illinois Bell Telephone Co., 310 Ill. 618, 142 N.E. 197, 199, the court, in commenting on similar language in the Illinois Act, said:
"The right of the public utility to fix its rates, subject to the power of the Commission to suspend or alter them. *100 is recognized. The power of the Commission to suspend is limited to 120 days beyond the time when the rate or charge would otherwise go into effect, unless the Commission, in its discretion, extends the period of suspension for a further period not exceeding six months."
"The board of railroad commissioners possesses only the authority conferred upon it by the Constitution and the statutes of the state. All orders made by it must conform with the statutes to be valid." Lyons v. Otter Tail Power Co., 68 N.D. 403, 280 N.W. 192, 194.
"It is elementary that the Board of Railroad Commissioners possesses only the authority conferred upon it by the Constitution and the statutes of the state. Railroad Com'rs v. Oregon Ry. & Nav. Co., 17 Or. 65, 19 P. 702, 2 L.R.A. 195. Its action, therefore, concerning any subject-matter within its jurisdiction, to be valid, must be in substantial conformity with the statutes governing its procedure, and must be consonant with due process of law." State ex rel. Lemke v. Chicago & N. W. R. Co., 46 N.D. 313, 179 N.W. 378, 381.
"The constitution of North Dakota provides that the `powers and duties' of the Public Service Commissioners `shall be prescribed by law.' The powers conferred upon the Public Service Commissioners by law pursuant to the constitutional requirement must be exercised by them in accordance with the statute bestowing such powers and they cannot rightfully dispense with any of the essential forms of proceedings which the lawmakers have prescribed for the purpose of investing them with the power to act." Petition of Village Board of Wheatland, 77 N.D. 194, 42 N.W.2d 321, 325, Syllabus by the court, Par. 9.
"Administrative authorities are creatures of statute and have only such powers as the statute confers on them. Their powers must be exercised in accordance with the statute bestowing such powers, and they can act only in the mode prescribed by statute." 42 Am.Jur. Public Administrative Law, Sec. 68. See also 73 C.J.S. Public Administrative Bodies and Procedure § 59.
When Sections 49-0505 and 49-0506, Compiled Laws N.D.1943 are construed together the powers and duties of the Public Service Commission with respect to the procedure to be followed when a proper schedule and notice with respect to change of rates is filed seems clear. The Commission has 30 days after filing to exercise its discretion as to whether or not it will hold a hearing with respect to the propriety of the rate. If it decides to hold a hearing it must do so upon due notice. If no notice is given the rate becomes effective at the end of thirty days by virtue of the statute. The Commission also, for a good cause shown, may allow rate changes to become effective in less than the thirty days. If the Commission orders a hearing upon due notice
"pending the hearing and decision thereon, such rate * * * shall not go into effect, but the period of suspension thereof shall not extend more than one hundred twenty days beyond the time when it otherwise would go into effect,".
This suspension is wholly dependent upon the issuance by the Commission of an order for hearing on notice. Once the hearing is so ordered the statute provides a suspension of the rate "pending the hearing and decision thereon" which is limited to 120 days beyond the time the rate would have gone into effect had no hearing been ordered. However, the limitation of 120 days is not necessarily final. The suspension terminates at the end of 120 days "unless the commission extends the period of suspension *101 for a further period not exceeding six months." This extension is a matter that rests in the discretion of the Commission. Thus it appears that a rate becomes effective on the expiration of 30 days from the time of filing or such lesser time as the Commission may grant unless a hearing on notice is ordered, in which event the proposed rate is suspended pending the hearing and decision of the Commission with a limit of 120 days on that suspension subject to the power of the Commission to extend the suspension for as long as 6 months.
The difficulty in this case arises from the fact that the Commission neither followed the statute nor based its action upon it. Its only action with respect to the suspension of rates was a motion adopted May 13, 1957 stating:
"that the revised schedule of electric rates for various classes of service as filed by the Montana-Dakota Utilities Company and which has been docketed as Case No. 5576 be suspended until the further order of the Commission."
The motion makes no reference to a hearing. At the time the motion was passed no hearing had been ordered. None was ordered until June 4, 1957. At the time the motion was made no power of suspension was vested in the Commission. No suspension either statutory or pursuant to the discretion of the Commission can exist except "pending the hearing and decision thereon." The action taken by the Commission on May 13 was wholly abortive and void. This becomes abundantly clear when we consider that had the Commission not some three weeks later ordered a hearing the proposed rate would have gone into effect under the mandate of the statute 30 days after the filing of the amended schedule regardless of the motion of May 13 and there would have been no suspension, statutory or otherwise.
In United States v. Baltimore & Ohio R. Co., 284 U.S. 195, 52 S.Ct. 109, 111, 76 L.Ed. 243, the court considered an order of the Interstate Commerce Commission entered on November 5, 1927 which directed:
"That this order take effect as of August 6, 1926, and shall continue in force until the further order of the commission."
Section 15, Par. (2) of the Transportation Act, 49 U.S.C.A. § 15(2) provided that:
"all orders of the commission, other than orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force until its further order, or for a specified period of time, according as shall be prescribed in the order, unless the same shall be suspended or modified or set aside by the commission, or be suspended or set aside by a court of competent jurisdiction."
The court said:
"The Commission had no power to put this order into effect as of a prior day; no future day was prescribed; the designated date was not a lawful one. Accordingly, the order did not become operative and was wholly ineffective."
The Public Service Commission had no power or authority to take the action that it did on May 13. It then had no power of suspension. Later, by virtue of the hearing ordered on June 4, the 120 day suspension provided by the statute became effective. The Commission made no decision and no attempt to extend the period of suspension with the result that the schedule of rates filed by the appellant became effective at the end of the statutory period, which was October 5, 1957.
The trial court determined as a conclusion of law that:
"The Commission did not extend the suspension of rates for any additional time after October 5, 1957." *102 We agree with that conclusion. However, the trial court felt that he had the equitable power to enjoin the Montana-Dakota Utilities Co. from charging and collecting the proposed rates and therefore ordered entry of the judgment from which this appeal is taken. The court overlooked the fact that under the statutes heretofore discussed the power of suspension is wholly statutory. It is a discretionary power vested in the Commission exclusively, not in the courts. A similar power is vested in the Interstate Commerce Commission. The same basic question now before us on this point was involved in Great Northern R. Co. v. Board of Railroad Commissioners, D.C., 33 F.2d 934, in which the trial court issued an injunction restraining the Board of Railroad Commissioners of North Dakota from putting into effect intrastate rates pending a decision of the Interstate Commerce Commission involving the same rates. On appeal to the Supreme Court of the United States that court, in Board of Railroad Commissioners of State of North Dakota v. Great Northern R. Co., 281 U.S. 412, 50 S.Ct. 391, 396, 74 L.Ed. 936, said:
"Congress, in 1910, authorized the Interstate Commerce Commission, on the filing of rates by interstate carriers with the Commission, to suspend the operation of the rates for a stated period, and this provision has been continued in later legislation. Interstate Commerce Act, § 15(7), 36 Stat. 552, 41 Stat. 486, 487 [49 U.S.C.A. § 15(7)]. This power of suspension was intrusted to the Commission only."
See also Manhattan Transit Co. v. United States, D.C., 24 F.Supp. 174; Carlsen v. United States, D.C., 107 F.Supp. 398; Long Island Railroad Co. v. United States, D.C., 140 F.Supp. 823. The same construction has been given to a Pennsylvania suspension statute. City of Philadelphia v. Pennsylvania Public Utility Commission, 164 Pa.Super. 96, 63 A.2d 391; Equitable Gas Co. v. Pennsylvania Public Utility Commission, 174 Pa.Super. 450, 102 A.2d 235. The power of suspension under the provisions of Section 49-0506, NDRC 1943 has been entrusted to the Public Service Commission only, to be exercised in the manner therein provided.
The Public Service Commission failed to suspend the rates proposed in the new schedules filed by the Montana-Dakota Utilities Co. beyond October 4, 1957 and the trial court was without power to restrain the collection of such rates as a matter of its own discretion. The judgment appealed from is therefore reversed.
GRIMSON, C. J., and SATHRE, JOHNSON and BURKE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586460/ | 763 F.Supp. 862 (1991)
Lisa FOWLER, Plaintiff,
v.
BURNS INTERNATIONAL SECURITY SERVICES, INC. and Cletus Meek, Defendants.
No. WC89-81-S-O.
United States District Court, N.D. Mississippi, W.D.
May 24, 1991.
David G. Hill, Oxford, Miss., Fred Swaney, Memphis, Tenn., for plaintiff.
Susan Fahey, Phelps, Dinbar, Marks, Claverie & Sims, Jackson, Miss., for defendants.
*863 OPINION
SENTER, District Judge.
In this case of alleged sexual harassment, plaintiff contends that defendants violated Title VII, 42 U.S.C. § 2000e, et seq., and RICO, 18 U.S.C. § 1961, et seq. She also asserts various state law claims. Presently pending before this court is defendants' motion for summary judgment on all claims.[1]
FACTS
The court and the parties are well versed in the alleged facts of this case, but they will be repeated nonetheless and are of course stated in the light most favorable to the nonmoving party, the plaintiff.
In April, 1988, plaintiff, Lisa Fowler, was hired by defendant Meek to work as a security guard for defendant Burns. Shortly after she was hired, Meek informed Fowler that her work was unsatisfactory and that she would be discharged. Ms. Fowler explained to Meek that she had to have the job to support her family and asked him what she could do to keep her job. Meek told Fowler to meet him at a local motel where he would explain what she must do to continue her employment with Burns. When Fowler met Meek at the motel, he informed her that she could keep her job only if she agreed to have sex with him. Ms. Fowler "gave in" to Meek's demands. This pattern was repeated at least once a month until Meek fired Ms. Fowler on January 31, 1989. During the nine months that she was employed by Burns, Fowler was required to engage in a variety of sexual acts with Meek (including oral sex) in order to avoid being discharged.
DISCUSSION
I. Title VII Claim
The court has carefully reviewed defendants' motion for summary judgment on plaintiff's Title VII claim, the parties' memoranda and supporting and opposing evidence, and the pertinent case law, and is of the opinion that there exist genuine issues of material fact and defendants are not entitled to judgment as a matter of law. Consequently, defendants' motion for summary judgment on plaintiff's claims of sexual harassment is not well taken and is denied.
II. RICO Claim
Section 1962(c) of Title 18 of the United States Code provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debts.
18 U.S.C. § 1962(c). "Reduced to its three essentials, a civil RICO claim must involve: (1) a person who engages in (2) a pattern of racketeering activity (3) connected to the acquisition, establishment, conduct, or control of an enterprise." Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir.1988), cert. denied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989) (emphasis in original). "The absence of a fact issue regarding any one of these elements is sufficient to grant summary judgment provided the legal analysis also favors the movants." Landry v. Air Line Pilots Association International AFL-CIO, 901 F.2d 404, 424 (5th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990).
Section 1962(c) requires that the "person" and the "enterprise" be separate and distinct entities. Landry, 901 F.2d at *864 425. "The violator of section 1962(c) who commits the pattern of predicate racketeering acts must be distinct from the enterprise whose affairs are thereby conducted." Old Time Enterprises, Inc. v. International Coffee Corp., 862 F.2d 1213, 1217 (5th Cir.1989). Because defendant Burns International Security Services, Inc. cannot be both a RICO "person" and the enterprise, the motion for summary judgment on the RICO claim as to Burns is well taken and is granted.
The court next considers whether plaintiff has established a pattern of racketeering activity on the part of defendant Meek.
"Racketeering activity" is statutorily defined as "any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year...." 18 U.S.C. § 1961(1)(A). In her amended complaint, plaintiff alleges that the predicate acts were "acts of extortion and assault which are indictable violations of the laws of the State of Mississippi."
In response to the court's directions, plaintiff identifies three state statutes which she claims were violated through extortion: (1) Miss.Code Ann. § 97-29-59 (unnatural intercourse); (2) Miss.Code Ann. § 97-3-53 (kidnapping by inveiglement); and (3) Miss.Code Ann. § 97-3-65 (rape). Plaintiff's attempt to bring Meek's alleged conduct within RICO's predicate act of extortion via these felony statutes involves the following logic: The general definition of extortion includes compelling or coercing by any means which overcome one's power of resistance or gaining by wrongful methods. In turn, and according to plaintiff, (1) Meek's "threats to fire [Fowler] unless she engaged in acts of oral sex constitute `means serving to overcome one's power of resistance' and the obtaining of sexual gratification by `wrongful methods' within the general meaning of ... extortion"; (2) Meek "tricked and deceived Plaintiff into being involuntarily confined in his [motel] room ... by means of extortionate threats and intimidation that his decision whether to terminate her depended upon her willingness ... to sexually gratify him"; and (3) Meek's "extortionate demands for sexual gratification in exchange for future employment ... constitutes forcible rape...."
A plain reading of the statutes cited by plaintiff leads this court to the conclusion that the crime chargeable under each has nothing whatsoever to do with extortion as it is generally defined. Consequently, plaintiff has failed to establish the requisite predicate act on the part of defendant Meek.
Assuming arguendo that plaintiff has established the required racketeering activity, she has not shown a pattern of such activity as defined by the United States Supreme Court. In H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), the Court held that proof of a pattern of racketeering activity involves a showing "that the racketeering predicates are related, and that they amount to or pose a threat of continuing criminal activity." H.J. Inc., 492 U.S. at 239, 109 S.Ct. at 2900 (emphasis in original). The Court rejected the multiple scheme test adopted by some lower courts and stated that to establish a RICO pattern, "it must be shown that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity." Id. at 240, 109 S.Ct. at 2901 (emphasis in original).
The concept of "continuity" is therefore central to the analysis of a RICO claim. The Supreme Court explained it as follows:
"Continuity" is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.... [W]hat must be continuous [is] RICO's predicate acts or offenses.... A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no *865 future criminal conduct do not satisfy this requirement....
Id. at 241-42, 109 S.Ct. at 2902 (emphasis in original) (citation omitted). The Court rejected the argument that very short periods of criminal activity that do not carry a threat of continuing criminal activity fall within the reach of RICO: "[W]hen congress said predicates must demonstrate `continuity' before they may form a RICO pattern, it expressed an intent that RICO reach activities that amount to or threaten long-term criminal activity." Id. at 243 n. 4, 109 S.Ct. at 2902 n. 4. Whether the predicates establish a threat of continued racketeering activity depends on the facts of each case. Id. at 242, 109 S.Ct. at 2902.
The alleged criminal acts by defendant Meek occurred over a nine-month period which presumably ended when plaintiff was discharged. Plaintiff has brought forth no evidence that the activity in which Meek allegedly engaged threatened any future criminal conduct. Therefore, and alternatively, plaintiff has not established a pattern of racketeering activity, and the motion for summary judgment on the RICO claim against defendant Cletus Meek is hereby granted.
III. State Law Claims
Plaintiff seeks damages for the following state law claims: (1) intentional infliction of emotional distress; (2) assault; (3) seduction; and (4) threat and extortion. Defendant argues that because the Mississippi Workers' Compensation Commission (MWCC) has exclusive jurisdiction over these claims, they should be dismissed.
Assuming this court has the power to hear these pendent claims, the court is of the opinion that discretion should be exercised in favor of dismissing the state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The court has not casually reached this conclusion but instead has carefully considered the four factors of judicial economy, convenience, fairness, and comity as required by Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988).[2] Frankly, the court has struggled with the particular issues presented by the parties, and due to their novelty and complexity, the court is of the opinion that the resolution of these matters is best left to the appropriate state tribunal.
Plaintiff has demanded a jury trial in this cause. With the dismissal of the RICO claim, the only claims on which a jury could render a verdict are the state law claims, the decision on the alleged Title VII violation to be made, of course, by the court. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969). As such, there is certainly the possibility of jury confusion. See Gibbs, 383 U.S. at 728-29, 86 S.Ct. at 1140-41. This is not the first time this court has chosen to exercise its discretion in dismissing pendent claims in the context of a Title VII case and under similar circumstances, see Saulsberry v. Atlantic Richfield Co., 673 F.Supp. 811, 816-17 (N.D.Miss.1987), and this dismissal will be subject to conditions set forth in the accompanying order. See id.
CONCLUSION
Defendants' motion for summary judgment is denied as to plaintiff's Title VII claim but is granted as to her RICO claim. The court exercises its discretion to dismiss without prejudice the pendent state claims upon compliance with certain conditions. Because the only claim proceeding to trial is the sexual harassment claim brought under Title VII, defendant's motion to strike the jury trial is granted, and the case will be heard by the court in a bench trial. See Johnson, 417 F.2d at 1125.
Finally, the parties have already attended a final pretrial conference in this matter, and a pretrial order has been entered. In light of the court's rulings, a revised pretrial order would be helpful to the court and will lead to a more expeditious final ruling following the trial of this case.
An appropriate order shall issue.
*866 ORDER
Pursuant to an opinion filed contemporaneously herewith, it is ORDERED:
That defendants' motion for summary judgment on plaintiff's Title VII claim is denied;
That defendants' motion for summary judgment on plaintiff's RICO claim is granted and is hereby dismissed with prejudice;
That, pursuant to the court's discretionary power to dismiss pendent claims, plaintiff's state law claims are dismissed upon the following conditions:
1. Defendants shall submit to the jurisdiction of the appropriate state tribunal;
2. Defendants shall waive or toll all statutes of limitations for the period from the date of filing of this action to the date of this order;
3. Defendants shall consent to the use of discovery taken in this action in the state cause;
Upon compliance with these conditions, the pendent claims will be dismissed without prejudice;
That defendants' motion to strike jury trial is granted, and this cause will be heard as a nonjury matter;
That a revised pretrial order shall be submitted by the parties no later than June 21, 1991; failure to comply in a timely manner will result in the imposition of appropriate sanctions.
SO ORDERED.
NOTES
[1] Defendants previously filed a motion for partial dismissal of the RICO claim. On March 8, 1990, this court ordered plaintiff to supplement her response to the motion for partial dismissal by informing the court of the Mississippi statute which she charged makes the defendants' alleged acts punishable by imprisonment for a term of more than one year. Plaintiff followed the court's directions, and defendants responded. Defendants have now requested summary judgment on the RICO claim as well as the other claims; therefore, the court will consider all claims in light of the standards governing summary judgment motions.
[2] Because this cause of action was filed before December, 1990, the new statute codifying, in part, the Gibbs decision, 28 U.S.C. § 1367 ("Supplemental jurisdiction"), is not applicable in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586461/ | 352 Mich. 390 (1958)
89 N.W.2d 756
KOFFMAN
v.
MATHEWS.
Docket No. 48, Calendar No. 47,383.
Supreme Court of Michigan.
Decided April 15, 1958.
Smith & Brooker (Carl H. Smith, Sr., of counsel), for plaintiff.
Dykema, Jones, Wheat, Spencer & Goodnow, for defendants Damman and Damath Realty Corporation.
KELLY, J. (dissenting).
Plaintiff and appellant sought equitable relief in the circuit court of Bay county, claiming that defendants failed to include him as a partner in the "acquisition and development" of certain lands in or near the city of Midland, *392 Michigan. Plaintiff's bill of complaint asks for an accounting and that defendants be required to carry out the terms and conditions of an oral agreement, and, also, that the legal status of the property be determined.
Defendants Damman and Damath Realty Corporation made a motion to dismiss said cause, claiming that the bill of complaint disclosed that the agreement plaintiff was endeavoring to enforce was unenforceable under the statute of frauds.[*] The trial court granted defendants' motion, and plaintiff takes this appeal.
Plaintiff alleged in his pleadings that he was acquainted with defendant Mathews, who was engaged in real-estate development projects in and around Bay City, Michigan; that while said defendant was a guest at his home he made known to defendant that he (plaintiff) was about to acquire certain lands in and around the city of Midland, and that defendant stated he was very much interested in such a project and suggested the formation of a partnership. Plaintiff alleged that he refused to disclose to defendant the location of the property without assurance that development of the property would be a joint endeavor.
Plaintiff then alleged in his bill of complaint that:
"The defendant Mathews then and there agreed with your plaintiff to enter into a partnership with plaintiff and another person then present for the acquisition and development of the parcel of land known to the plaintiff on condition that the plaintiff would disclose the location of said lands to the defendant Mathews; that the plaintiff did then and there agree with the defendant Mathews to enter into the partnership aforesaid and that, after said agreement had been agreed upon by said plaintiff with Mathews, the plaintiff disclosed that the parcel *393 of land in question was the following described * * *."
Plaintiff again refers to the agreement in paragraph 10 of his bill of complaint, as follows:
"That the said Ernest Mathews, disregarding the agreement theretofore entered into with the plaintiff, Herman Koffman, for the organization of a partnership for the purpose of acquiring and developing the said lands, did, with the said Archie J. Damman, secure the option to purchase said lands and premises, cause the defendant corporation to be organized and the title to said premises to be taken and purchased in the name of said defendant corporation, Damath Realty Corporation. That ever since the acquisition of said lands and premises, by the Damath Realty Corporation, the defendants, Ernest Mathews, Archie J. Damman and Damath Realty Corporation, have refused to recognize the agreement heretofore entered into between Ernest Mathews and Herman Koffman."
Plaintiff's prayer for relief is, in part, as follows:
"That the defendants, Ernest Mathews, Archie J. Damman and Damath Realty Corporation, may come to a true and just accounting with this plaintiff in connection with the development, profits and title to the real estate hereinbefore described."
Plaintiff contends that "The trial court in its opinion holding the oral agreement unenforceable by reason of the statute of frauds disregards the fact that the agreement was not only to acquire and develop real estate but also was for a sharing and division of the profits to be realized therefrom. * * * While the arrangement between the parties hereto contemplated the acquiring of real estate, yet the ultimate aim and purpose was making and realizing of profits from the property and development thereof."
*394 To sustain his position, appellant quotes the following from Price v. Nellist, 316 Mich 418, 422:
"The general rule is that agreements to share profits and losses arising from the purchase and sale of real estate are not contracts for the sale or transfer of interests in land and need not be in writing."
The trial court in granting the motion to dismiss relied upon Raub v. Smith, 61 Mich 543 (1 Am St Rep 619), and stated "that the facts in the Raub Case are almost four-square with the facts in the present case." The facts of the Raub Case, accurately and concisely set forth in syllabus 1 thereof, are in effect that the plaintiff therein, being the owner of a steam sawmill, agreed to manufacture into lumber, at a fixed price, a quantity of pine timber owned by the defendants; also to show defendants a tract of pine land for sale at $15 per acre, which plaintiff had "looked over," and if found to be as valuable as he represented, plaintiff and defendants were to form a copartnership, the defendants agreeing to advance the money and purchase the land, taking the deed in the names of plaintiff and defendants in such a way as to vest the title to an undivided 1/3 in plaintiff and the remaining 2/3 in defendants. Plaintiff was to pay defendants for his interest by manufacturing the timber on said land into lumber, which was to be sold, and the profits and losses shared and borne by the parties in the proportions above specified.
The defendants in the Raub Case, as alleged by plaintiff, refused to form the copartnership, purchased the land in their own names, sold the same for $8,000, and refused to share the profits with plaintiff.
It was held in that case (Raub) that the agreement sued upon included a verbal contract for the sale of land, and was void under the statute of frauds.
It was further held in that case:
*395 "A contract void under the statute of frauds cannot be used for any purpose * * * and is regarded as a nullity." (Syllabus 2.)
Price v. Nellist, supra, relied upon by appellant herein, did not involve a transaction whereby plaintiff endeavored to enforce an oral agreement by which plaintiff was to acquire a partnership interest in the title to real estate. In the Price Case the plaintiff deeded his interest in land to defendant, who agreed to hold same, on a basis of 1/2 interest, in trust for plaintiff, and in this regard this Court in that case stated (p 422):
"We are not in accord with defendants' claim that parol evidence is not admissible to show that Nellist was to hold a 1/2 interest in the lands in trust for Price."
It is interesting to note that Raub v. Smith, supra, and subsequent decisions following Raub were not commented upon by this Court in Price v. Nellist, supra. An examination of Michigan cases that have come before this Court in the past, including the 7 cited by appellant, does not sustain appellant's contention that an oral agreement to acquire and purchase real estate does not come within the statute of frauds if it happens to be coupled with an agreement calling for a sharing and division of the profits to be realized therefrom.
Said previous decisions establish the principle that an oral agreement to form a partnership by which the parties are to acquire an interest in land comes within the statute, but if such agreement only refers to the profits from said land purchase and enterprise it is not within the statute.
The paragraphs of the pleadings, set forth above, establish that plaintiff claimed the right to enforce an oral agreement entered into for the purpose of "acquisition and development" of land and the *396 prayer for relief in said pleadings asked for a determination of title in said land.
The lower court did not err in granting the motion to dismiss and the order of dismissal should be affirmed, with costs to appellees.
DETHMERS, C.J., and CARR, J., concurred with KELLY, J.
KAVANAGH, J.
Normally I would not attempt to restate the facts as set forth in the opinion of Mr. Justice KELLY. However, since my position with reference to the case turns, in part, upon the fact questions, which actually differ from those set forth in my Brother's opinion, I will attempt to briefly restate them.
Plaintiff-appellant filed a bill of complaint in the circuit court for the county of Bay, alleging an oral agreement between himself, defendant Ernest Mathews and a third party to enter into a partnership for the acquisition and development of certain real estate in or near the city of Midland, Michigan, and to split the profits therefrom. Prior to the oral agreement defendant Ernest Mathews asked plaintiff to disclose to him the whereabouts of the property he had in mind that they might develop and make a profit. Plaintiff alleges that this he refused to do. When the oral agreement to buy and sell real estate and to divide the profits therefrom was completed, plaintiff then disclosed a particular parcel of land that he had in mind. Plaintiff further alleges that defendant Mathews, in violation of the agreement and without disclosing his action to the plaintiff, on or about the 7th day of July, 1955, along with defendant Archie J. Damman, caused to be organized a corporation under the name and style of Damath Realty Corporation and took title to the premises in the name of Damath Realty Corporation. *397 In the amended bill of complaint plaintiff alleged that when title to the real estate was acquired by the corporation by defendant Ernest Mathews and defendant Archie J. Damman in the name of the corporation, both of the stockholders of the corporation had full knowledge of the interest of plaintiff therein and of his right to participate in the profits. He asked that the defendants Ernest Mathews and Archie J. Damman and Damath Realty Corporation come to a true and just accounting with plaintiff with respect to the development, profits and title to the real estate described; that the defendants be required to specifically perform and carry out the terms and conditions of the partnership agreement entered into between the plaintiff and the defendant Ernest Mathews; that the defendants, and each of them, be restrained by the order and injunction of the court, from selling, disposing of, encumbering or leasing or otherwise dealing with said real estate described until the further order of the court.
On November 23, 1956, Archie J. Damman and Damath Realty Corporation, 2 of the defendants, filed a motion to dismiss and gave as their reasons why the motion should be granted: (1) the claim on which the action is founded is unenforceable under the provisions of the statute of frauds of the State of Michigan;[*] (2) the bill of complaint fails to state a legally sufficient cause of action against defendants Archie J. Damman and Damath Realty Corporation; (3) as to defendants Archie J. Damman and Damath Realty Corporation there is a misjoinder of alleged causes of action as the liability is not one which can be asserted against all of the defendants; (4) as to defendants Archie J. Damman and Damath Realty Corporation there is a misjoinder of parties. Defendant Ernest Mathews is *398 not a party to the motion to dismiss. The circuit judge filed a written opinion on the motion to dismiss and granted the relief prayed for. Accordingly an order of dismissal was entered on April 29, 1957, dismissing said cause as to the defendants Archie J. Damman and Damath Realty Corporation. No order of dismissal was entered as to defendant Ernest Mathews.
The trial court in his written opinion indicated that the oral agreement was such that it involved the purchase and sale of lands and was void and unenforceable because of the statute of frauds.
Plaintiff appeals to this Court, asking relief from the granting of the order of dismissal as to the 2 defendants.
In this matter we are dealing with a motion to dismiss based upon the pleadings. No testimony was taken in the court below. We are compelled therefore to recognize all well-pleaded matters in the bill of complaint and in the amended bill of complaint to be true for the purpose of deciding this motion. The bill of complaint alleges an oral agreement to split profits by the 3 parties and alleges this agreement was made prior to the mention of any particular piece of real estate. This fact alone distinguishes this case from the authorities cited by my Brother in support of his affirmance of the order of dismissal and brings it within the category of cases which follow: Carr v. Leavitt, 54 Mich 540; Stewart v. Young, 247 Mich 451; Price v. Nellist, 316 Mich 418. In Price v. Nellist, supra, at p 422, the Court had this to say with respect to the rule in this State:
"The general rule is that agreements to share profits and losses arising from the purchase and sale of real estate are not contracts for the sale or transfer of interests in land and need not be in writing."
In the case of Carr v. Leavitt, supra, at p 542, the Court said as follows:
*399 "If the contract the plaintiff relied upon was within the statute, it must have been because it contemplated a purchase and then a sale of certain lands. But the plaintiff was to be neither purchaser nor seller, and the contract did not contemplate that in any contingency an interest in the land was to be conveyed to or vested in him. It contemplated only that in a certain event the plaintiff should receive a share of the moneys that a sale of the land should bring. His interest was therefore in these moneys, and not in the land itself. And the moneys were to be payable to him in consideration of services performed. The profits on the 2 trades, to be brought about by the plaintiff, were to be taken as the measure of compensation, instead of any other that might have been agreed upon.
"This surely was not a contract `for the sale of any lands, or any interest in lands,' within the meaning of the statute of frauds. How Stat § 6181.[**] That statute contemplates a transaction between parties contracting with each other as principals; and this was not such a transaction. In this case the plaintiff as agent undertook to perform for the defendant certain services, and the defendant undertook to make a compensation therefor, the amount of which should be contingent on the value of the services."
In this case it is to be kept in mind that until the oral agreement had been completed no particular piece of property was involved. Consequently, there certainly could not be any interest in land within the meaning of the statute of frauds. There was an oral agreement to share in the development and profits of any purchase made by the parties. Under the above-mentioned authorities and the cases of Davis v. Gerber, 69 Mich 246; Bresee v. Robinson, 236 Mich 633; Youngs v. Read, 246 Mich 219, oral agreements are valid with reference to the sharing of *400 profits in the development of real estate. It may be that after testimony of the parties, and even testimony of the plaintiff himself has been taken, that the proofs would disclose an agreement that came within the holdings of this Court in the case of Raub v. Smith, 61 Mich 543 (1 Am St Rep 619), but I do not read the bill of complaint and the amended bill of complaint as doing so. Plaintiff's claim is not for an interest in real estate, but for an interest from the proceeds of real estate. A bill for an accounting under such circumstances may be maintained. Stewart v. Young, 247 Mich 451, and the authorities cited therein: Carr v. Leavitt, 54 Mich 540; Edinger v. Heiser, 62 Mich 598, 612; Davis v. Gerber, 69 Mich 246; Collar v. Collar, 86 Mich 507 (13 LRA 621); Petrie v. Torrent, 88 Mich 43; Lasley v. Delano, 139 Mich 602; Tuttle v. Bristol, 142 Mich 148; Mullholland v. Patch, 205 Mich 490 (18 ALR 468); Bresee v. Robinson, 236 Mich 633; Browne, Statute of Frauds (5th ed), § 268; 29 Am & Eng Enc Law (2d ed), p 897; 27 CJ, p 221. For the above reasons the court below erred in granting the motion to dismiss. The subsequent reasons enumerated in the motion to dismiss, I believe, are adequately covered in 2 recent cases. This Court in the case of L'Hommedieu v. Smith, 351 Mich 223, 227 (decided March 4, 1958), in the words of Justice BLACK, said:
"Whether the accounting as sought by plaintiffs is due from defendant Smith or defendant city of Highland Park, or both, or whether that accounting is due from remaining defendants, or whether plaintiffs are entitled to no relief at all, are questions for determination on testimonial hearing rather than motion to dismiss. The latter is but another instance of attempted short-cut trial of issues of fact by motion and without taking of testimony and it proceeds (as did the moving defendant in Love v. Wilson, 346 Mich 327) on erroneous assumption that a *401 bill in equity must state, as at law, a cause of action against each defendant in order to hold the latter in court until the invoked purposes of equity are fulfilled."
I shall not endeavor to quote at length the well-reasoned opinion of Mr. Justice BLACK in Love v. Wilson, 346 Mich 327, in which he goes into the Michigan practice in this respect, in which he states at p 332:
"We agree, then, that the bill does not state a cause of action against the bank in the sense that substantial, distinguished from auxiliary, relief may on that bill be granted against it. We do hold that the bank's presence before the court as a party defendant is necessary to the jurisdictional function the bill invokes."
In this case, if the proofs develop that an oral agreement was entered into and that defendants, who have moved to dismiss, are holding property, money or effects in their possession from which the plaintiff might recover from Mathews plaintiff's share of profits found due him from Mathews' share in the real estate, equity would have jurisdiction to dispose of the entire matter by a final decree.
The lower court erred in granting the motion to dismiss. The order of dismissal is hereby reversed, with costs to appellant.
SMITH, BLACK, EDWARDS, and VOELKER, JJ., concurred with KAVANAGH, J.
NOTES
[*] See CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908). REPORTER.
[*] See CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908). REPORTER.
[**] See CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908). REPORTER. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586462/ | 33 So.3d 498 (2009)
Tyronne Lekeith WADE a/k/a Tyronne Lakeith Wade, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-KA-01098-COA.
Court of Appeals of Mississippi.
September 29, 2009.
Rehearing Denied April 27, 2010.
*499 Alvin Chase, Biloxi, attorney for appellant.
*500 Office of The Attorney General, by Lisa Lynn Blount, attorney for appellee.
Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
ROBERTS, J., for the Court.
¶ 1. Tyronne Lekeith Wade was found guilty of possession of more than one kilogram of marijuana with the intent to transfer or distribute. The Harrison County Circuit Court sentenced Wade to twenty years in the custody of the Mississippi Department of Corrections (MDOC) with ten years to serve and five years of "supervised" post-release supervision followed by five years of "unsupervised" post-release supervision. Wade appeals and claims the circuit court erred when it denied his pretrial motion to suppress the evidence against him. Wade claims the circuit court should have suppressed the evidence against him because he was illegally detained during a traffic stop. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On the morning of November 13, 2006, Wade was driving a rental car through Harrison County, Mississippi. The rental car did not have a traditional metal license plate displayed in the commonly-accepted location. Instead, there was a paper Alabama license displayed in the rear window. Deputy William Senseney with the Harrison County Sheriff's Department did not see the paper Alabama license in the rear window of Wade's rental car, because it was displayed from the inside of the heavily-tinted rear window of the rental car and the window was covered by a layer of dirt and dust. Because Deputy Senseney did not see any license plate when he encountered Wade, he pulled Wade over at approximately 10:13 a.m.
¶ 3. As Deputy Senseney approached Wade's rental car, Deputy Senseney noticed the Alabama paper license in the rear window of the car. Deputy Senseney then went to the passenger side of Wade's rental car and asked Wade for his driver's license and his proof of insurance. Wade presented his North Carolina driver's license and informed Deputy Senseney that the rental car was insured through the rental agreement.
¶ 4. Deputy Senseney noticed that Wade appeared nervous. According to Deputy Senseney, Wade's hands were shaking when he provided his driver's license and the rental agreement. Deputy Senseney asked Wade "where he was coming from." Deputy Senseney reported that Wade told him "that he was just coming from seeing his uncle who was dying of cancer in Beaumont, Texas." However, Deputy Senseney later repeated his question to Wade. Wade's later response indicated that he could not remember what he had said to Deputy Senseney. According to Deputy Senseney, Wade "hesitated for a while, and he then said [']where did I tell you I was coming from?[']" Deputy Senseney responded, "I don't know ... [y]ou tell me." Wade then said, "well, you know where I was coming from." Deputy Senseney then asked Wade how his uncle was doing. As mentioned, Wade first told Deputy Senseney that his uncle was dying. However, when asked about his uncle a second time, Wade replied, "[o]h, he's fine. I just went out there to visit him."
¶ 5. According to Deputy Senseney, the placement of certain items in Wade's rental car further aroused his suspicions. Deputy Senseney smelled an unusually strong odor of air fresheners from the car, and he noticed that there were large air fresheners attached to each of the rental car's air conditioning vents. Wade had a *501 small Bible in the open console of the rental car, and he had hung a set of rosary beads from the dashboard. Additionally, Wade had hung a set of military identification tags, commonly referred to as "dog tags," from the rear-view mirror. Deputy Senseney articulated that, under the totality of the circumstances, he became suspicious that the air fresheners could be intended to mask the smell of narcotics, and the religious and military articles could be intended to convey a message that Wade was a "good person" who would not warrant further attention.
¶ 6. Deputy Senseney asked Wade to join him in his patrol car while he wrote out what he described as a "courtesy citation" for what he characterized as Wade's "improperly displayed tag." Wade complied and sat in the front passenger seat of the patrol car. Meanwhile, Deputy Senseney "noticed that ... [Wade's] breathing seemed to be heavier than what [he] would think would be a normal person's breathing patterns, and he continued to fidget with the leg on his pants and just ... appeared to be nervous."
¶ 7. Deputy Senseney requested a criminal background check on Wade. While they waited, Deputy Senseney reviewed Wade's rental agreement. Deputy Senseney noticed what he considered to be another inconsistency in Wade's story. Although Wade told Deputy Senseney that he was coming from Beaumont, Texas, the rental agreement reflected that Wade had rented the car in Harlingen, Texas. According to Deputy Senseney, "Beaumont is basically on one side of Texas; Harlingen is down on the opposite end of Texas down by the border in the valley area." When the criminal background check on Wade was completed, Deputy Senseney discovered that Wade "had several ... prior drug-related arrests, with the latest one being in June of [20]06 in Louisiana." However, there were no outstanding warrants for Wade's arrest.
¶ 8. Deputy Senseney filled out a consent-to-search form and explained that, if Wade signed it, he would allow Deputy Senseney to search the car. Deputy Senseney also explained that Wade had the right to refuse to consent to a search of his car. Wade refused to sign the form and refused to consent to a search of his rental car. However, after Wade refused to consent to a search of his rental car, Deputy Senseney requested that an officer with a drug-detecting dog report to the scene of the traffic stop. According to Deputy Senseney, he made that request at 10:27 a.m.
¶ 9. The record reflects that Deputy Timothy Huguet arrived at the scene of the traffic stop in just three minutes. Deputy Senseney testified that when Wade realized that Deputy Huguet was walking around his rental car with a dog, Wade "hopped out of the [patrol] car and ... started hollering [']whoa, you've got to stop, you've got to stop['] and all this stuff." Despite protesting the dog's presence, Wade did not interfere with Deputy Huguet as he walked around the rental car with the dog.
¶ 10. Deputy Huguet's dog "alerted" at the right and left rear quarterpanels of the rental car and indicated that it had smelled narcotics in the rental car. Deputy Senseney and Deputy Huguet then searched Wade's rental car. They found approximately sixty pounds of what they suspected to be bundled and packaged marijuana concealed within three suitcases: two in the back cargo area of the rental car, and one on the passenger side of the back seat.
¶ 11. Wade was arrested at the scene. On June 11, 2007, he was indicted and charged with possession of more than one kilogram of marijuana with the intent to transfer or distribute. Wade pled not *502 guilty. On March 26, 2008, Wade filed a motion to suppress the marijuana and dismiss the indictment against him. According to Wade, Deputy Senseney unlawfully detained him until Deputy Huguet could respond with his dog.
¶ 12. On April 1, 2008, the circuit court conducted a hearing on Wade's motion to suppress the evidence against him. Deputy Senseney and Deputy Huguet testified during that hearing. After each side presented its argument, the circuit court announced that it would take Wade's motion under advisement. The circuit court allowed Wade and the prosecution to submit letter briefs on the issue of whether the evidence against Wade should be suppressed. Each side submitted a letter brief. On April 23, 2008, the circuit court denied Wade's motion to suppress the evidence against him.
¶ 13. On May 1, 2008, Wade went to trial. Wade waived his right to a jury trial and chose to have a bench trial. Deputies Senseney and Huguet testified during the trial. Agent Ian Estorffe of the Mississippi Bureau of Narcotics also testified for the prosecution. Agent Estorffe testified that he took custody of the packaged substance suspected to be marijuana and transported it to the Mississippi Crime Laboratory. According to Agent Estorffe, the bundles actually contained sixty-six pounds, 29,937 grams, of marijuana.[1]
¶ 14. The prosecution rested its case-in-chief after Agent Estorffe testified. Wade did not testify. He rested without calling any witnesses or presenting any evidence. The circuit court did not render a verdict at the end of the trial. Instead, the circuit court took the matter under advisement. On May 27, 2008, the circuit court entered its judgment finding Wade guilty. The circuit court sentenced Wade to twenty years in the custody of the MDOC. The circuit court suspended ten years of Wade's sentence with ten years to serve followed by five years of post-release supervision.
¶ 15. Wade filed a motion for reconsideration. Wade's attorney stated that he "was, perhaps mistakenly, under the impression [that] the [c]ourt had previous[ly] stated a willingness to defer sentencing for a period of time to allow [Wade's] family to be present and to address the [c]ourt" prior to sentencing Wade. On June 23, 2008, the circuit court conducted a hearing and allowed Wade's attorney, Wade's mother, and Wade's aunt to address the circuit court judge and request that he be lenient in sentencing Wade. Afterward, the circuit court amended its previous sentence. The circuit court stated that "under state law, I'm not allowed to suspend any part of a sentence."[2] Accordingly, the *503 circuit court sentenced Wade to twenty years in the custody of the MDOC with ten years to serve followed by five years of "supervised" or "reporting" post-release supervision and then five years of "unsupervised" or "non-reporting" post-release supervision.[3]
¶ 16. Wade appeals. He raises one issue on appeal. According to Wade, the circuit court erred when it denied his motion to suppress the marijuana.
STANDARD OF REVIEW
¶ 17. "The standard of review regarding the admission or exclusion of evidence is abuse of discretion." Lattimer v. State, 952 So.2d 206, 215(¶ 24) (Miss.Ct.App. 2006). "Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense." Id.
¶ 18. We further note that, as part of his overall argument, Wade claims that there were no "specific and articulable facts" from which a "reasonable suspicion" of a traffic offense or other crime could be gleaned to support and justify Deputy Senseney's traffic stop. The Mississippi Supreme Court has clarified the appropriate standard of review in the event of such arguments, stating that:
The principal components of a determination of [whether there was] reasonable suspicion or probable cause [justifying a traffic stop] will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.
Gonzalez v. State, 963 So.2d 1138, 1141(¶ 10) (Miss.2007) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). "[T]he `first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact.'" Id. "Thus, historical facts are reviewed only for clear error, while determinations of reasonable suspicion are reviewed de novo." Id. (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. 1657) (footnote omitted).
ANALYSIS
¶ 19. Wade claims the circuit court erred when it denied his motion to suppress the evidence. According to Wade, Deputy Senseney had no legal right to stop him. Wade also claims Deputy Senseney had no right to detain him after Deputy Senseney determined that he had a valid temporary license plate.
¶ 20. The Fourth Amendment to the United States Constitution and Article 3 Section 23 of the Mississippi Constitution provide that an individual has the right to be free from unreasonable searches and seizures. Dies v. State, 926 So.2d 910, 917-18(¶ 21) (Miss.2006). "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, *504 constitutes a `seizure' of `persons' within the meaning of this provision." Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). Evidence, however relevant and trustworthy, obtained from an illegal arrest or detention is inadmissible at trial. Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The Mississippi Supreme Court has held that:
Unless the marijuana was discovered during a legal search, it may not be seized. If it was illegally seized, it may not be admitted into evidence. It is therefore important to examine the legality of the particular intrusions which enabled the police to see this marijuana to determine if these intrusions were outside the legitimate scope of the police's authority.
Gonzalez, 963 So.2d at 1140(¶ 9) (quoting Carney v. State, 525 So.2d 776, 785 (Miss. 1988)).
¶ 21. There are several exceptions to the Fourth Amendment's general prohibition of warrantless searches. Gonzalez, 963 So.2d at 1141(¶ 12). The exception central to this case is the exception for non-custodial investigatory stops, also known as Terry stops. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "The United States Supreme Court has noted that swift and necessary actions by officers `must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.'" Gonzalez, 963 So.2d at 1141(¶ 13) (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). "To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest." Id. (citation omitted). "[I]t is imperative that the facts be judged against [the following] objective standard: Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Id. at 1141-42. (citations and internal quotations omitted).
¶ 22. There is a two-fold test to determine whether a law enforcement officer's search and seizure were reasonable: "(1) whether the officer's action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 1142(¶ 14) (citation omitted). "[T]o satisfy the first prong, the law enforcement officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. (citation and internal quotations omitted).
I. DEPUTY SENSENEY'S RIGHT TO STOP WADE
¶ 23. The facts in this case are strikingly similar to the underlying facts in Gonzalez. In Gonzalez, a Mississippi State Highway Patrol Trooper stopped a rental car because the trooper could not see a temporary license tag that was displayed from the inside of windows that were described as "very dark" and "very tinted." Gonzalez, 963 So.2d at 1142(¶ 16). The Mississippi Supreme Court noted that "vehicles operated on Mississippi's highways must have tags `conspicuously displayed on the vehicle being operated in such a manner that it may be easily read.'" Id. at 1143(¶ 20) (quoting Miss. Code Ann. § 27-19-323 (Rev.2006)). The supreme court went on to hold that "[i]n light of this clear statutory language, it is not enough that the vehicle actually had a tag. If the tag was not `conspicuously displayed' and `easily read,' [the trooper] was fully justified in making the stop." Id.
*505 ¶ 24. Deputy Senseney's decision to stop Wade was not unreasonable. Deputy Senseney was not able to see Wade's license plate because it was displayed inside the heavily-tinted rear window of Wade's rental car, and the tag was further obscured by a significant amount of dirt and dust. Having viewed the picture introduced in evidence that depicted Wade's rental car and the visible conditions of the rear window, it was reasonable that Deputy Senseney could not see Wade's tag. Even from a close viewpoint in daylight, it is impossible to determine that the rectangular object in the window is a valid temporary license tag.
¶ 25. Failure to conspicuously display a tag in such a manner that it may easily be read is an offense under Mississippi Code Annotated section 27-19-323 (Rev.2006). Additionally, Mississippi Code Annotated section 27-19-40 (Rev.2006) regulates "special in-transit tags" like the tag presently at issue, and requires that such a tag be "properly displayed" and "displayed in plain view." Miss.Code Ann. § 27-19-40(1)(c) and (4) (Rev.2006). Deputy Senseney personally observed that Wade did not have a license plate that was "conspicuously displayed" on his rental car. Additionally, because Deputy Senseney could not see any license plate on Wade's rental car, Deputy Senseney had probable cause to believe that Wade did not have a license plate. It follows that Deputy Senseney had probable cause to believe that Wade had committed a traffic violation. A law enforcement officer may stop a vehicle when there is probable cause to believe that a traffic violation has occurred. Walker v. State, 962 So.2d 39, 42(¶ 6) (Miss.Ct.App.2006) (citing Whren, 517 U.S. at 810, 116 S.Ct. 1769). Consequently, we cannot find that the circuit court erred when it concluded that Deputy Senseney acted within his authority when he stopped Wade.
¶ 26. Wade stopped his car, and as Deputy Senseney approached Wade, Deputy Senseney realized that Wade had a temporary Alabama license plate. However, having stopped Wade, Deputy Senseney also had the responsibility to ensure that Wade's temporary license plate was valid and that Wade had liability insurance. See Miss.Code Ann. § 63-15-4(3) (Rev.2004) (stating that "[u]pon stopping a motor vehicle for any other statutory violation, a law enforcement officer, who is authorized to issue traffic citations, shall verify that the insurance card required by this section is in the motor vehicle." (emphasis added)).
II. DEPUTY SENSENEY'S RIGHT TO DETAIN WADE
¶ 27. Although Wade had a valid temporary license plate, it is not enough that one simply have a valid tag, "but also that the tag be displayed in plain view." Gonzalez, 963 So.2d. at 1144(¶ 24). Deputy Senseney wrote a "courtesy citation" for Wade's failure to display his temporary tag in plain view. During the stop, Deputy Senseney observed certain aspects of Wade's behavior that aroused his suspicions. There was a heavy air freshener odor. There were air fresheners clipped to the air conditioning vents. There was a Bible in the center console and rosary beads hanging from the dashboard. There were what appeared to be military "dog tags" hanging from the rear-view mirror. Those features, alone, would not create reasonable suspicion that one might be smuggling contraband, but there were other matters that aroused Deputy Senseney's suspicions, and Deputy Senseney articulated those matters during the hearing on Wade's motion to suppress the evidence against him.
¶ 28. Deputy Senseney noted that, although Wade told him that his trip originated *506 from Beaumont, Texas, Wade had rented his car in Harlingen, Texas. However, when Deputy Senseney later asked Wade again where he was coming from, it appeared to Deputy Senseney that Wade could not remember where he had begun his trip. Deputy Senseney also testified he was suspicious due to the fact that Beaumont, Texas is a considerable distance from Harlingen, Texas, and that Harlingen was significantly out of the path of Wade's trip from Beaumont, Texas to North Carolina.[4] Deputy Senseney testified that Wade initially told him that he was traveling from Beaumont, Texas because he had been visiting an uncle who was terminally ill. However, Wade later told Deputy Senseney that his uncle was "fine."
¶ 29. Deputy Senseney testified that Wade was behaving nervously during the traffic stop. Deputy Senseney also articulated Wade's nervous behavior. According to Deputy Senseney, Wade's hands were shaking when he gave Deputy Senseney his driver's license and his car rental agreement. While Wade was in the front seat of Deputy Senseney's patrol car, Wade was breathing heavier than normal and he was fidgeting with his clothing. Finally, Deputy Senseney requested a criminal background check on Wade. That background check indicated that Wade had multiple prior drug-related convictions.
¶ 30. Wade's prior criminal history, display of religious items, display of military "dog tags," and the presence of air fresheners may not, on their own or taken together, give rise to further detention of Wade. However, when viewed alongside Wade's nervous behavior and inconsistent statements about his trip, it is not unreasonable to suspect that the "dog tags," religious items, and heavy odor of air fresheners could be intended to conceal or distract from criminal behavior. Consequently, we cannot find that the circuit court erred when it determined that those circumstances, in conjunction with the inconsistencies in Wade's responses and his articulable nervous behavior, warranted Deputy Senseney's further investigation. Deputy Senseney clearly articulated that the heavy odor of air fresheners could be an attempt to mask the smell of narcotics. Deputy Senseney also stated that the Bible, rosary beads, and military identification tags could have been placed intentionally to send a message that the driver is a "good person" who was unlikely to be someone that might smuggle contraband items.
¶ 31. If, during a traffic stop, a law enforcement officer develops reasonable, articulable suspicion of criminal activity other than what was originally suspected, the scope of the officer's stop expands and includes the investigation of the newly-suspected criminal activity. Tate v. State, 946 So.2d 376, 382(¶ 18) (Miss.Ct.App. 2006). Based on the matters discussed above, Deputy Senseney developed reasonable, articulable suspicion that Wade was engaged in smuggling narcotics. It follows that Deputy Senseney had a legal basis to detain Wade until Deputy Huguet could resolve his reasonable suspicion through the dog's sniff test of Wade's car. The record reflects that it took just three *507 minutes for Deputy Huguet to respond with a dog. Deputy Huguet's dog "alerted" and indicated that it smelled contraband. Those positive alerts created probable cause for Deputy Senseney and Deputy Huguet to search Wade's car. McNeal v. State, 617 So.2d 999, 1006 (Miss.1993). Accordingly, pursuant to our standard of review, we can find no error in the circuit court's decision to deny Wade's motion to suppress the evidence seized as a result of Deputy Senseney's traffic stop.
¶ 32. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH THE INTENT TO DISTRIBUTE OR TRANSFER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE FOLLOWED BY FIVE YEARS OF SUPERVISED POST-RELEASE SUPERVISION AND FIVE YEARS OF UNSUPERVISED POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
NOTES
[1] Exhibit S-12, a report from the Mississippi Crime Laboratory, indicated that the bundled packages found inside luggage in Wade's rental car contained 31.4 kilograms of marijuana.
[2] During the sentencing hearing, Wade's attorney stated that Wade "had a couple of prior convictions." Wade's attorney went on to state that, in 1991, Wade had been convicted for a "drug-related charge" in North Carolina. Wade's attorney indicated that Wade had been sentenced to twelve years and that the sentence "was suspended for probation." Wade's attorney said Wade "did in fact do about [fourteen] months of probation. He got revoked, I think, for a dirty urine at that time, and he did some time, but it was not the twelve years." Additionally, Wade's attorney stated that, in 1999, Wade was charged with "possession of a gun after having a felony conviction" for which Wade was sentenced to "eight to ten months of probation." Consequently, the most likely reasoning for the circuit court judge's indication that he could not suspend any portion of Wade's sentence was the circuit court judge's interpretation of the provision in Mississippi Code Annotated section 47-7-33(1) (Rev.2004) that a circuit court may not suspend a portion of a sentence and place a defendant on probation if that defendant "[has] been convicted of a felony on a previous occasion in any court or courts of the United States." However, Mississippi Code Annotated section 47-7-34 (Rev.2004) addresses the circuit court's authority to suspend a sentence and place a defendant on post-release supervision. The Mississippi Supreme Court has held that section 47-7-34 "does not prohibit the imposition of post[-]release supervision upon a prior[-]convicted felon." Johnson v. State, 925 So.2d 86, 105(¶ 39) (Miss.2006).
[3] "`Unsupervised' post-release supervision is also known as `non-reporting' post-release supervision." Johnson, 925 So.2d at 102 n. 12.
[4] During the suppression hearing, Wade's attorney introduced a printout of a map demonstrating that Harlingen, Texas is located at the extreme southern tip of Texas's border with Mexico. Beaumont, Texas is approximately 415 miles northeast of Harlingen. One could conclude that if Wade had been visiting his uncle in Beaumont, and Wade was traveling from Beaumont to his home in North Carolina, it defies logic to travel 415 miles in the opposite direction of his destination, adding a total of approximately fourteen hours to his trip, for the purposes of renting a car. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586466/ | 180 So.2d 403 (1965)
248 La. 500
STATE of Louisiana
v.
Wilbert DICKSON.
No. 47744.
Supreme Court of Louisiana.
November 8, 1965.
Rehearing Denied December 13, 1965.
McKay & Doane, New Orleans, for appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
SUMMERS, Justice.
By a bill of information Wilbert Dickson and one Herbert Walton were jointly charged in four counts with the sale, possession, transportation and delivery of narcotic drugs (three capsules of Heroin) contrary to R.S. 40:962.
Walton pleaded guilty and was sentenced. Thereafter Dickson was tried, convicted on all counts and sentenced; his appeal is before us.
Prior to trial defense counsel filed a prayer for oyer in which he sought to view and copy all confessions, statements and admissions, both written and oral, pertaining to the charge against defendant in the possession of the district attorney and the police *404 of Orleans Parish. The prayer sought any evidence in typewritten form, on tape recordings, in moving pictures or otherwise recorded by electronic devices. It was further set forth that defendant was entitled to be informed by the district attorney and the police whether or not the confessions, statements or admissions in their possession would be used at the trial.
The State's answer represents that it was not in possession of any written or recorded confessions which it intended to use at the trial, and, therefore, was not required to furnish anything in response to the prayer for oyer. The State's position in argument is that the motion pictures and recording in its possession were not a reenactment of the crime nor oral admissions of guilt obtained by the police from the accused after he was taken into custody, but instead were made by the police while the accused was in the act of committing the crime. Under the law and the circumstances, it argues, these motion pictures and recording were direct evidence of the commission of the crime and the accused was not entitled to a pretrial examination of them.
The trial court agreed with this latter contention and denied the prayer for oyer, whereupon defendant reserved a bill of exceptions to the ruling. The ruling of the trial court was correct.
All evidence relating to a pending criminal trial which is in the possession of the district attorney or the police is privileged; and it is not subject to pretrial inspection by the accused, an exception to this rule being written confessions of the accused. R.S. 44:3; State v. Pailet, 246 La. 483, 165 So.2d 294 (1964); State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); 6 Wigmore on Evidence (3d ed. 1940) § 1859g.
Another point, and, we might add, the principal contention of the accused, will be taken up without determining the propriety of the procedure whereby this issue has been brought to our attention.
During the trial defendant took the stand to explain his presence at the scene when the sale of the narcotics took place. He also produced other witnesses to corroborate his version of the occurrence. Thereafter on rebuttal the State offered, for the first time, motion pictures alleged to have been made at the time the offense was stated to have occurred. These were received in evidence. It did not, however, offer the sound recording made in conjunction with these motion pictures, but instead produced as witnesses police officers who made the recording. The police officers (we are informed in briefs) testified that the recording was not usable as evidence because it was wholly unintelligible. The inference we draw from these events is that the State introduced this testimony to explain the nonproduction of the recording and thereby deny to the accused the presumption the law would ordinarily accord to him, that is, the evidence was unfavorable to the State because it was in its possession and available to it but not used. Defense counsel made no objection to the omission at that time.
In this court, for the first time, defendant takes the position that the State's failure to produce the auditory evidence along with the showing of the motion pictures, when it was available and could be expected to be produced, gives rise to a presumption (based upon a natural inference) that the evidence held back under such circumstances would favor defendant's cause. From this it may be concluded, he contends, that the auditory evidence, if produced, would have corroborated the explanation of defendant's presence at the scene of the crime. The failure to produce this recording therefore constitutes a deliberate suppression of evidence favorable to the accused, amounting to a denial of due process of law guaranteed by the Federal Constitution. In support of his contention he relies upon Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942) and United States v. Rutkin, 212 F.2d 641 (3d Cir. 1954).
*405 In Pyle v. State of Kansas the Supreme Court of the United States said "perjured testimony knowingly used by the State authorities to obtain (a) conviction, and * * the deliberate suppression by those same authorities of evidence favorable to (a defendant) * * * sufficiently charge a deprivation of rights guaranteed by the Federal Constitution * * *." There evidence was alleged to have been "repressed under threat and coercion by the State * * *." Such an allegation was held to sufficiently charge a deprivation of constitutional rights.
In United States v. Rutkin the suppression complained of involved a statement obtained by the United States attorney, unknown to the accused or his counsel, which contradicted the testimony of a witness for the government, whose testimony in turn was mainly responsible for the conviction of the accused. In that case defense counsel had no access to the favorable statement or the witness who gave it. A deprivation of due process was found to have been adequately set forth, based upon allegations that the United States attorney failed to produce that evidence.
These cases do not support defendant's position in the case at bar. The "suppression" referred to in the rule announced in those cases, and others reviewed, contemplates a knowing and deliberate concealment from the accused and the court of the fact that evidence favorable to the accused exists, thereby denying him access to the favorable evidence at his trial. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Mooney v. Holohan, 294 U.S. 103 (1935); United States ex rel. Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963); U. S. ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407 (3d Cir. 1952); White Thunder v. Hunter, 149 F.2d 578 (10th Cir. 1945); Smith v. Squier, 136 F.2d 536 (9th Cir. 1943); Soulia v. O'Brien, 94 F.Supp. 764 (D.Mass.1950); Ex parte Horowitz, 33 Cal.2d 534, 203 P.2d 513 (1949); 74 Yale L.J. 136 (1964).
Under the foregoing concept of the rule there could be no suppression in the case at bar, for here the defendant was aware of the existence of the auditory evidence at all times, even prior to trial. Although this evidence was not available to the accused prior to trial, it was available during the trial when the State disclosed the existence of the auditory evidence and produced witnesses who testified that the recording was unintelligible. In other words the State could not be suppressing the evidence when it admitted its existence and disclosed where it was, but took the position it was not being used because it was unintelligible. Defense counsel (we understand from briefs) made no effort to cross-examine the State's witnesses who testified that the recording was unintelligible, nor did he otherwise seek to repudiate the testimony that the recording was not being produced because it was unintelligible. And more important, if the accused believed that the recording was intelligible and was being kept out of evidence by the prosecuting attorney because it was favorable to the accused, he should have, and could have, asked the trial court to issue an instanter subpoena ordering its production in court at the time when the police officer testified that it was unintelligible. He made no such request.
Instead of being a complaint that evidence was suppressed we think that defendant's contention is in reality a complaint that the recording should have been introduced by the State and not by the defendant. But such a position would likewise be without foundation. If the State did not suppress the evidence (and there is no showing to this effect), and the defendant had knowledge of its existence and could have obtained its production, the State could not be compelled to introduce that evidence to make out a case for defendant. All the district attorney is required to do under the law is to introduce the evidence relied upon for convictionhe need not introduce evidence relied upon by the defendant for an acquittal. La.Code Crim.Proc. art. 333.
*406 Although two other bills of exceptions were reserved during the trial, they have not been referred to in brief or argument here. The record as made up discloses them to be without merit.
The conviction and sentence are affirmed.
McCALEB, J., concurs in the decree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586468/ | 33 So.3d 776 (2010)
Barbara SIMPSON, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-233.
District Court of Appeal of Florida, Fourth District.
April 21, 2010.
*777 Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
Barbara Simpson appeals the trial court's order denying her motion to dismiss. We affirm based on the tipsy coachman rule.[1]
While at the Fort Lauderdale International Airport, Simpson was approached by two detectives. The detectives conducted a search of her purse and discovered a pill box and burgundy change purse, both of which contained oxycodone tablets and other controlled substances. Based upon a combination of the controlled substances in her pill box and change purse, Simpson was charged with one count of trafficking in oxycodone, along with two other controlled substance offenses. Simpson subsequently filed a motion to dismiss as to two charges, one of which was trafficking in oxycodone.
In the motion, Simpson alleged that she and her husband had valid prescriptions for the oxycodone in her pill box and change purse, respectively, and that she was the custodian for her ill husband of the oxycodone in her change purse. The State responded with a traverse, specifically denying that Simpson's husband had a valid prescription and that she was the custodian of the oxycodone in her change purse. The State further asserted in its traverse that Simpson's prescription was invalid because she fraudulently obtained it by not telling her prescribing doctor about a previously-issued oxycodone prescription from another doctor. At the conclusion of the hearing on the motion to dismiss, the trial court denied the motion. The court found that Simpson unlawfully obtained her prescription by misrepresentation, constituting fraud. Simpson now appeals the trial court's denial of her motion *778 to dismiss only as to her trafficking in oxycodone charge and contends that the court erred in denying the motion because she legally possessed the oxycodone in her pill box under a valid prescription.
The standard of review of a trial court's denial of a motion to dismiss is de novo. State v. Santiago, 938 So.2d 603, 605 (Fla. 4th DCA 2006) (citing State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004)). "A motion to dismiss ... shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss." Fla. R.Crim. P. 3.190(d) (emphasis added).
We affirm the trial court's denial of Simpson's motion to dismiss based on the tipsy coachman rule, see Kennard, 903 So.2d at 245-46, because the State specifically denied in its traverse that Simpson's husband had a valid oxycodone prescription and that she was the custodian for her ill husband of the oxycodone in her change purse, see Fla. R.Crim. P. 3.190(d). At this stage, the State sufficiently traversed, specifically denying two material facts, and the trial court was required to deny the motion to dismiss because the State charged Simpson with only one count of trafficking in oxycodone. Accordingly, we need not address the trial court's conclusion that Simpson unlawfully obtained her oxycodone prescription by misrepresentation.
Affirmed.
HAZOURI, J., concurs.
FARMER, J., concurs specially with opinion.
FARMER, J., concurring specially.
I do not agree that the trial judge correctly denied the motion for the wrong reason. I do agree that he correctly considered the traverse sufficient to defeat the motion to dismiss. This case presents no occasion for the Applegate rule.[2]
Because defendant has entered pleas and been sentenced on the charge, there are no further proceedings to be had. So this case has proceeded beyond the pretrial stage to final judgment. Accordingly I would address defendant's contention that the final sentence from his order denying the motion to dismiss is improper.
In deciding a motion to dismiss a criminal charge, rule 3.190[3] neither requires nor permits the judge to engage in fact finding. The court simply lays the traverse beside the charging document and motion to dismiss, ascertaining whether the traverse properly appears to deny critical facts involved. In this sense it is different from a motion to suppress where the judge is called upon to take testimony and resolve factual conflicts.
The motion to dismiss simply required the judge to make a legal determination about the effect of the traverse. His gratuitous "finding" that defendant was guilty of fraud in obtaining the prescription is a *779 legal nullity. We should strike it from the order.
NOTES
[1] See Kennard v. State, 903 So.2d 244, 245-46 (Fla. 1st DCA 2005) ("[T]he Tipsy Coachman Rule ... provides that an appellate court may affirm a trial court's judgment if the judgment is legally correct, regardless of the trial court's reasoning.").
[2] Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("The written final judgment by the trial court could well be wrong in its reasoning, but the decision of the trial court is primarily what matters, not the reasoning used"). For me it is long past the time for retiring that lamentable locution, "Tipsy Coachman Rule." To paraphrase John Ford, when the cliché becomes law, judges seem to print the cliché. It is as dubious and inartful a metaphor as I have ever heard. Anyway it takes less wind or fewer words to say Applegate.
[3] See Fla. R.Crim. P. 3.190(c)(4),(d). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586506/ | 33 So.3d 657 (2008)
TOBY PRIEST
v.
STATE.
No. CR-07-2099.
Court of Criminal Appeals of Alabama.
October 20, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586520/ | 4 Wis.2d 251 (1958)
STATE, Respondent,
vs.
COOPER, Appellant.
Supreme Court of Wisconsin.
April 11, 1958.
May 6, 1958.
*253 For the appellant there was a brief by McWilliams & Steil of Janesville, and oral argument by George K. Steil.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, and Joseph B. Forrestal, district attorney of Rock county, and Mark J. Farnum, assistant district attorney, and oral argument by Mr. Forrestal, Mr. Farnum, and Mr. Platz.
BROADFOOT, J.
The first assignment of error is that the jury was permitted to separate during the four-day trial. Permitting the jury to separate during trial has been held to be reversible error in cases where the defendant was charged with what was formerly known as a "capital offense." Rowan v. State, 30 Wis. 129; State v. Dolling, 37 Wis. 396; Clifford v. State, 58 Wis. 477, 17 N. W. 304; Hempton v. State, 111 Wis. 127, 86 N. W. 596. The defendant contends that this rule applies to all homicide cases.
The defendant cites Newbern v. State, 222 Wis. 291, 260 N. W. 236, 268 N. W. 871. In that case the defendant was charged with bank robbery. Two of the robbers were killed and a bank employee was abducted and left dead with a dead bandit beside the road a few miles from the scene of the robbery. Upon appeal from his conviction the defendant alleged error because the jurors were not kept together during the trial. Other errors were claimed but this court held that the errors, if committed, were not prejudicial and affirmed the judgment of the circuit court. Upon motion for a rehearing a new trial was ordered in the interest of justice. However, it was stated there was no error in the rules of law stated and applied in the original opinion. Because of the circumstances and the feeling in the community, the court directed that upon the new trial the jurors be kept in custody of an officer during the trial. It was stated that this is required on trials of charges of homicide. That statement in *254 the per curiam opinion on the motion for rehearing was not a correct statement of the law and is expressly overruled.
The matter of the separation of the jury in criminal cases is governed by statute in most states. Except in the case of a conflict with a statutory provision and except in cases where the penalty may be life imprisonment, it is the general practice to permit the jury to separate until the cause is submitted to it for its final deliberations. The matter rests within the discretion of the trial court. Baker v. State, 88 Wis. 140, 59 N. W. 570, Anno. 21 A. L. R. (2d) 1088. Even though the rule was as contended for by the defendant, he waived that right by failing to request that the jury be confined or placed in custody of an officer or officers. State v. Sawyer, 266 Wis. 494, 63 N. W. (2d) 749.
The motion for a new trial was supported by the affidavits of two of the jurors in addition to those of the defendant and one of his attorneys. The state contends that the affidavits of the jurors are incompetent since jurors are not permitted to impeach their verdict or reveal the nature of their deliberations. That is the general rule. However, there are exceptions to that general rule. In the Hempton Case, supra, on page 145, this court said:
"It is a well-settled principle of law that affidavits of jurors cannot be used to impeach their verdict, but that rule applies only to affidavits concerning their conduct in court or when deliberating upon the case. Their conduct outside the courtroom may be established by their own affidavits for the purpose of impeaching their verdict."
The first sentence of that quotation was affirmed in the Newbern Case. So far as the affidavits of the jurors are competent they merely indicate that some of the jurors read a report of the proceedings in the Beloit Daily News. A copy of that report was attached to the moving papers and it indicates that the testimony of one witness, an employee of *255 the Federal Bureau of Investigation, was not correctly reported. In spite of that, the first juror in her affidavit indicated that she properly understood the testimony of the witness. The affidavits state there was confusion among the jury as to the testimony of this witness. This was during the deliberations of the jury and the affidavits are incompetent as to anything that took place during the deliberations. There is nothing in the affidavits to indicate that the jurors were misled by the newspaper account. There is an annotation in 31 A. L. R. (2d) 417, dealing with the reading of newspaper accounts of trials in a criminal case by jurors. Although the jury should have been instructed more fully at the beginning of the trial that they should not read newspaper accounts of the trial, we can find no prejudicial error in reviewing the record made in support of the motion for a new trial.
At one point in the deliberations the jury informed the bailiff that they would like to have a transcript of the testimony of the F. B. I. witness. The bailiff reported that request to the trial judge. In the meantime the reporter had been excused and was not present in court. After the court discussed the request with the attorneys for the state and for the defendant and it was agreed upon what should be done, the jury was summoned and was informed by the court that this testimony was not transcribed, that the court reporter was not present, there was no one who could read her notes, and it would take considerable time to make the testimony available. The court therefore requested the jury to return to the jury room and resume deliberations.
Error is claimed because the reporter was not available to read the requested testimony. The statutes provide for the appointment of court reporters to take down the proceedings. In Willard v. State, 195 Wis. 170, 217 N. W. 651, it was held that the jury has a right to have testimony read to it by *256 the reporter. The extent thereof is within the discretion of the trial court. Further, the right is one that may be waived and in the present case there was a waiver of this right by the defense. Although it is not a commendable practice to excuse the reporter until the jury has completed its deliberations, we find no reversible error in the incident complained of.
After the case was submitted to the jury for its final deliberations the judge absented himself to address a parent-teachers meeting. During the period of his absence there was no request by the jury for any communication with the judge. However, the defendant claims that his absence constituted reversible error. We have held that the presiding judge of a trial court should be present from the opening to the closing of a case and that he should not be absent. Smith v. Sherwood, 95 Wis. 558, 70 N. W. 682; Berrafato v. Exner, 194 Wis. 149, 216 N. W. 165; Caryl v. Buchmann, 177 Wis. 241, 187 N. W. 993; Caesar v. Wegner, 262 Wis. 429, 55 N. W. (2d) 371. Although the judge should not have absented himself during the deliberations of the jury, the record establishes that he was easily accessible and there is no showing that anyone, including the jury, attempted to communicate with him in any manner or required his presence during the time he was absent. Under the circumstances there was no reversible error because the judge was absent for a time.
Finally the defendant contends that a new trial should be granted in the interest of justice. It is to be noted that the defendant does not attack the sufficiency of the evidence to support the jury verdict. In fact, the record establishes beyond a reasonable doubt that the defendant was guilty of the offense charged. Where the evidence is so overwhelming in support of the jury verdict it is apparent that the real controversy *257 was fully tried and there has been no miscarriage of justice in spite of the minor errors committed during the trial.
By the Court. Order and judgment affirmed.
HALLOWS, J., took no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586522/ | 180 So.2d 746 (1965)
C. Paul HILLIARD, Plaintiff-Appellee,
v.
Kenneth FRANZHEIM, II, Defendant-Appellant.
No. 1571.
Court of Appeal of Louisiana, Third Circuit.
November 30, 1965.
Rehearing Denied December 22, 1965.
*747 Aaron & Aaron, by J. Donald Aaron, Crowley, for defendant-appellant.
Davidson, Meaux, Onebane & Donohoe, by Lawrence E. Donohoe, Jr., Lafayette, for plaintiff-appellee.
Before TATE, SAVOY, and CULPEPPER, JJ.
TATE, Judge.
The trial court awarded the plaintiff $5,868, allegedly owed to him as the unpaid purchase price of overriding royalty. The defendant appeals.
The plaintiff Hilliard sues upon a written agreement by him to sell and the defendant Franzheim to buy an overriding royalty interest in the vicinity of a well to be drilled by Hilliard. As a condition of the sale, Hilliard agreed to drill a well on the tract, with the well "to be started" within ninety days of Hilliard's acceptance of Franzheim's agreement to buy. The ninety days expired March 20, 1961. The defendant Franzheim contends that he is not liable for the purchase price because Hilliard did not "start" the well within the required ninety days.
Preparatory surface operations to drill the leased tract were commenced by Hilliard as early as March 3rd. However, the drilling rig was not actually moved onto the tract to the well location until March 24th. The well was not "spudded in" (the first boring into the ground) until March 26th.
The defendant contends: (1) the plaintiff's contractual obligation for the well "to be started" within ninety days was intended to mean that the well be "spudded" in within such period, i. e., to mean that actual drilling be commenced within the time limit; (2) alternatively, even if surface preparatory operations can be considered "starting" a well, those conducted by the plaintiff were insufficient in extent to be so considered.
I.
The agreement was reached by the plaintiff Hilliard's written acceptance December 20th of a letter agreement by Franzheim to purchase a 1/32nd overriding royalty interest on described property, "subject to the following conditions: That you [Hilliard] will drill or cause to be drilled a well [on the tract] * * * to a depth sufficient to penetrate the producing zone in [a described sand]. * * * This well * * * is to be started within 90 days of your acceptance of this letter. The purchase price will become due upon our [Franzheim's] receiving written notice that this well has been spudded and a proper recordable conveyance of our interest has been delivered to our bank for collection."
We find no merit in the defendant's contention that the terms "started" and "spudded" in the agreement were intended to be synonymous, so that the defendant was not obligated to buy the royalty unless the well was "spudded" in within the ninety days.
In the first place, the term to "spud in" has a well-defined meaning in the oil industry as the first boring of the hole in the ground, that is, the first actual penetration of the earth with a drilling bit; it has a distinct meaning different from other terms of the industry, such as to "commence to drill", which refer to the first operations on the land preliminary to the actual drilling or spudding in. Williams and Meyers, Oil and Gas Terms (Baker and Co., 1957), verbo "Commencement of drilling", p. 36, verbo "Spudding in", p. 236. This is shown not only by the jurisprudence and texts to be cited in II below, but also by expert testimony in the present record. Had the present agreement been intended to obligate the defendant to buy the royalty only if the well was "spudded" in within the ninety days, the *748 agreement would have so specified instead of using the term "started", which like the term "commence" implies initial pre-drilling operations. Cf., Webster's Unabridged International Dictionary (2nd ed., 1960), verbo "start" definitions, such as: "* * * to give an initial impulse or help to; * * * to cause to begin * * *."
In the second place, the very circumstance that the agreement itself uses these distinguishable terms is indicative that they were not intended to have the same meaning. Franzheim's obligation to buy was conditioned on the well being "started" within ninety days, but his obligation to pay the purchase price matured when the well was "spudded". If Franzheim's obligation both to buy and also to pay had been intended to be conditioned upon the same event, then in our opinion different terms with distinguishable meanings would not have been utilized to define the event(s) conditioning his respective obligations to buy and to pay.
II.
The defendant Franzheim alternatively contends that, in any event, the operations conducted by Hilliard on the tract within the ninety-day delay were not sufficient to be considered a "starting" or "commencement" of the well.
No case was cited to us concerning a requirement in an overriding royalty sale that a well be "started" within a certain period. The cases cited to us mainly involve clauses in mineral leases, with the interests of lessors and lessees possibly involving different considerations than those pertaining to the parties to an overriding royalty sale. The cited decisions interpret the meaning of such phrases as "commence drilling", "commence drilling operations", "commence a well", "commence operations", "commence to drill a well", etc.
For what applicability it may have to the interpretation of the present royalty contract, the general rule to be drawn from these decisions is that actual drilling is unnecessary to "commence" a well within the meaning of the lease provisions; and that substantial surface preparations to drill are sufficient to be considered "commencement" of drilling operations for lease-clause purposes, such as making and clearing a location, delivering equipment to the well site, and the like, provided that such preliminary operations are continued in good faith and with due diligence until the well is actually spudded in. Moses, What Constitutes Commencement of Operations Under an Oil, Gas and Mineral Lease, 16 Tul. L.Rev. 573 (1942); 2 Summers Oil & Gas (1959 ed.) Section 349 (p. 459), cf. Section 300.1 (p. 251); Brown, The Law of Oil and Gas Leases (1958) Section 7.04 (p. 127).
The Louisiana decisions apply this general rule: Johnson v. Houston Oil Co., 229 La. 446, 86 So.2d 97 (clause: "reworking operations * * * being conducted."); Texas Co. v. Leach, 219 La. 613, 53 So.2d 786 ("commences drilling or reworking operations"); Crye v. Giles, La.App. 2 Cir., 200 So. 155 ("[i]f operations for drilling are [not] commenced"); cf., Hudspeth v. Producers Oil Co., 134 La. 1013, 64 So. 891 ("commence operations"). See also: Wehran v. Helis, La.App. 4 Cir., 152 So.2d 220 (which concerns a lease definition of when operations shall be deemed to have commenced); Sterling v. McKendrick, La.App. 4 Cir., 134 So.2d 655; Iberian Oil Corporation v. Texas Crude Oil Co., W.D., La., 212 F.Supp. 941 (1963), affirmed, 5 Cir., 328 F.2d 832 (1964).
The defendant points out, however, that in all these Louisiana cases the operations were deemed to have commenced because some equipment directly connected with drilling the well was being used or was located upon the leased premises within the required period. None of the Louisiana decisions concerned only clearing the tract and building a board road for the drilling equipment as does the present.
While such activities might not necessarily commence "operations" within the meaning of mineral-lease drilling *749 clauses, we nevertheless believe that the below-described activities, by or on behalf of the plaintiff in fulfillment of his obligation to drill the well in the agreement to sell and buy an overriding royalty, are sufficient to be considered compliance with the contractual condition that the well "be started" before March 20, 1961, at least here when the agreement contemplated the well would be "spudded" at a significant interval subsequent to its being "started":
The location of the well was staked at the site on March 3, 1961, on which date a permit to drill was secured. On March 13, 1961, a contractor moved lumber onto the proposed location, levelled the well location, and installed a culvert and a cattle guard. From March 14, 1961 through March 20, 1961, the contractor constructed a board road and turnaround (for the subsequent use of the heavy drilling equipment) at the drilling site at a cost of some three thousand dollars, with further preparatory site work being done on March 21-22. On March 15, 1961, a firm contract for drilling operations was entered into with the Delta Drilling Company, which had drilling machinery located nearby.
Following these preparatory actions: The rig of Delta Drilling Company was moved to the proposed well location on March 23-24, 1961, or three days after the ninety-day period had expired. Actual drilling commenced on March 26th and continued to the required depth until the well was abandoned as a dry hole on April 13th. All of the preliminary and drilling operations were performed diligently and continuously in a good faith effort to discover minerals.
We conclude that the trial court correctly held that the plaintiff Hilliard had "started" the well within the ninety-day period, and that the defendant Franzheim is therefore obligated to pay for the overriding royalty interest in question. In passing, we note that Hilliard had sent executed royalty deeds to Franzheim on March 23rd and that the deeds were retained in Franzheim's office during the latter's absence from the country until long after the well was plugged as a dry hole on April 13, 1961, despite repeated attempts by the plaintiff to secure word or payment from Franzheim or his office while the well was being drilled, with letters and telephone calls received by Franzheim's secretary. No effort whatsoever was made by Franzheim or his secretary to return these royalty deeds to the plaintiff Hilliard until after the well proved to be a dry hole, although Franzheim was in touch with his secretary while on his trip.
III.
The defendant also specifies other alleged errors of the trial court. As to these specifications of error, we think that the trial court correctly held under the evidence (1) that the inclusion by Hilliard of a clause reserving the right to pool the overriding royalty was in accord with customary practice and was within the intent of the parties, and (2) that the plaintiff's delivery of the executed royalty sale to the defendant's office rather than to the bank specified in the written agreement was in accordance with a subsequent mutual agreement of the parties. We likewise find to be without merit other allegations of error made in the course of defendant's brief which were not specifically referred to in the brief's formal specification of errors.
Decree.
For the foregoing reasons, we affirm the judgment of the trial court granting the plaintiff judgment for the unpaid purchase price of the royalty interest. The defendant-appellant is to pay the costs of this appeal.
Affirmed.
On Application for Rehearing.
En Banc. Rehearing denied.
TATE, J., absent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586585/ | 709 F.Supp. 770 (1989)
UNITED STATES of America, Plaintiff,
v.
Allen Arthur PORTER, Defendant.
No. 88-CR-80554-DT.
United States District Court, E.D. Michigan, S.D.
March 7, 1989.
*771 *772 Richard Delonis, Asst. U.S. Atty., Detroit, Mich., for plaintiff.
Vincent P. Schumacher, Detroit, Mich., for defendant.
MEMORANDUM OPINION AND ORDER
ZATKOFF, District Judge.
This is a criminal action wherein defendant, Allen Porter, was indicted on two counts as a result of a Government sting operation.
Count One alleged a violation of 18 U.S. C. § 2251(c)(1)(A), the knowing, willful and unlawful publication of a notice to buy or receive visual depictions of minor children engaged in sexually explicit conduct. Count One was dismissed by the Court prior to trial because defendant merely responded to an unsolicited advertisement sent by a Government agent. The undisputed facts indicated that the only "notice" was sent by the Government.
Count Two alleged a violation of 18 U.S. C. § 2252(a)(2), the knowing, willful and unlawful receipt of visual depictions of minor children engaged in sexually explicit conduct. On November 16, 1988, a jury trial commenced with respect to Count Two of the Indictment. On November 23, 1988, the jury returned a guilty verdict.
On December 14, 1988, defendant was provided an opportunity to create a special record regarding the alleged outrageous conduct of the government. Defendant's special record spanned over three days. Six witnesses testified before the Court and twenty exhibits were received for consideration limited to the special record created by defendant.
Currently before the Court are three post-trial motions filed by defendant: a motion for acquittal pursuant to Fed.R. Crim.P. 29; a motion for a new trial; and a motion for acquittal based upon the government's outrageous conduct.[1] Each motion is addressed separately.
I. DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO FED.R. CRIM.P. 29
Defendant submits that an acquittal must be granted because (1) the government failed to prove its case beyond a reasonable doubt, and (2) the jury failed to follow the jury instructions. For the reasons stated below, the Court rejects defendant's arguments.
*773 A motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29 must be considered in the light most favorable to the Government. United States v. Williams, 503 F.2d 50 (6th Cir.1974). The Supreme Court set forth the standard of review for a motion of acquittal in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941):
It is not for [the courts] to weigh the evidence or to determine the credibility of the witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.
If the evidence is such that reasonable minds could differ on the issue of reasonable doubt, then the motion for acquittal must be denied.
A. Whether The Government Failed To Meet Its Burden?
1. Specific Intent
Defendant submits the Government failed to establish defendant's specific intent to receive child pornography. This contention is patently without merit.
The most significant evidence regarding defendant's intent is the undercover solicitation to which defendant responded. The solicitation stated, in relevant part:
Hello Lolita Collector:
You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections.
As a serious collector, you are aware of the worldwide ban and intense enforcement of this type of material. Accordingly, what was legal and commonplace is now an "underground" and secretive service ... (Emphasis added).
Trial Ex. 1.
The solicitation offered photographs of "boys and girls in sex action" and "[y]oung boys in sex action." The titles of the photograph packages included: Lolita; School Girls and Boys; Nymph Lover; Loving Children; Lesbian Lolita; Life Boy; Lover Boys; Mini Boys; and Chicken. Evidence was presented that the terms "chicken," "Lolita" and "nymph" are known within the pornography industry to indicate child pornography. Defendant responded to the solicitation by ordering the photo set entitled "Nymph Lover." The solicitation provided for "substitute selections" to "avoid delay." Defendant's substitute selections were: "Loving Children," "Lesbian Lolita" and "Lolita." In addition, defendant sent a hand-written note with his order that stated, in relevant part, "I am very interested in any films or video tapes available for this subject matter."
This Court finds the above stated evidence to be sufficient for a reasonable mind to find beyond a reasonable doubt that defendant acted with the specific intent to purchase child pornography through the U.S. mails. Accordingly, defendant's motion must be denied to the extent it addresses defendant's specific intent.
2. Production of Photographs
Defendant next argues the Government failed to establish that the production of the photograph received by defendant violated 18 U.S.C. § 2252(a)(2). Specifically, defendant argues that the age of the subject in the photographs was not established, that the evidence did not establish the photographs were produced before 1984 and that the production of the materials received by defendant did not involve the use of a minor.
18 U.S.C. § 2252(a)(2) provides, in relevant part:
(a) Any person who
* * * * * *
(2) knowingly receives, or distributes, any visual depiction that has been transported or shipped in interstate or foreign commerce or mailed or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if
(A) the producing of such visual depiction involves the use of a minor engaging in sexual explicit conduct; and
*774 (B) such visual depiction is of such conduct; ...
shall be punished [by a fine of not more than $10,000 or imprisonment of not more than 10 years, or both].
Minor is defined as any person under the age of eighteen years. 18 U.S.C. § 2256(1).
(a). The Age of the Photograph Subject
Defendant's first assertion, that the Government failed to establish the age of the photograph subject, is totally groundless. The trial testimony of Dr. Postellon, a pediatrician specializing in child growth and development, indicated that the subject was approximately 10 years of age. Doctor Postellon further testified that he was nearly certain the child was no greater than 13 years of age. Defendant submits that Dr. Postellon's testimony was rendered worthless by the doctor's assumption that the subject was a female and the doctor's admission that the photograph could have been professionally retouched to conceal the subject's true age. The assumptions and admissions of Dr. Postellon do not render his testimony worthless. Rather, they merely create a question of fact to be resolved by the jury. The jury considered defendant's arguments and soundly rejected them in favor of the competent evidence presented by the Government. This Court cannot alter the jury's finding since there is more than substantial evidence to support the conclusion that the subject of the photograph was a minor child.
(b). Whether the Photographs Must Antedate the 1984 Amendment to 18 U.S.C. § 2256(1)?
Defendant also argues that the Government failed to provide any proof regarding the production date of the photographs. Defendant argues there exists a substantial likelihood that the production of the photographs predate the 1984 amendments to the statute. Prior to the 1984 amendments, the term "minor" was defined as a person under the age of 16 years. Defendant submits that a conviction without proof as to the production date of the photographs violates defendant's Constitutional right to due process and his right to be free from ex-post facto conviction. Defendant's argument defies logic since it ignores the fact that transportation and receipt of the materials are the gravamen of the offense to which defendant has been convicted. The production date of the photographs is wholly immaterial to the offense. Moreover, assuming the date of production to be material, defendant merely notes a distinction without a difference. The Government witness testified that the photograph subject was a female child no greater than 13 years of age. Although the defendant attacked the credibility of the Government witness, defendant failed to offer any evidence to support the conclusion that the child was sixteen years of age or older. Accordingly, to the extent that the date of production of the photographs is material, the result of this case would be no different.
(c). Whether the Reproduction of Photographs Must Involve the Use of Minors?
Defendant's final argument regarding the photographs is that the actual physical photographs supplied to defendant by the U.S. Customs Service did not involve the use of minors because they were photographs of pictures contained in a child pornography magazine.
Defendant's argument ignores the fact that the original production of the photographs depicted in the magazine involved the use of minors. The U.S. Customs Service did not produce the photographs but merely reproduced them. If defendant's logic was accepted, persons who receive photographs of child pornography that are reproduced from photograph negatives could not be convicted under the statute since the production involved the use of negatives rather than minor children. Such a result is absurd and clearly not intended by the statute.
3. Whether the Government Established Predisposition?
Defendant also argues the Government failed to establish that defendant was predisposed *775 to commit the crime of which he has been found guilty. Of the myriad of arguments offered by defendant, the Court is most troubled by this particular contention.
The defense of entrapment centers upon the intent or predisposition of the defendant to commit the charged offense. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The degree of Government participation is secondary to the disposition of the defendant to commit the crime. United States v. Esquer-Gamez, 550 F.2d 1231, 1233 (9th Cir.1977). Thus, entrapment is not established merely because the Government affords defendant the opportunity to commit the crime. "It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed. 2d 366 (1973). The entrapment defense prohibits conviction of a person induced by the Government to commit a crime unless the Government establishes the defendant's predisposition to commit the crime. Id.
Defendant submits that the Government's alleged evidence of predisposition is limited to the fact that defendant's name and address were found on a mailing list maintained by Joseph Surin of Chicago, Illinois.[2] Defendant submits that the appearance of his name on the Surin mailing list does not prove predisposition to commit the crime of which he stands convicted.
Joseph Surin was the operator of Alpine Distributors, an entity that distributed pornographic material through the mail. Mr. Surin was arrested on charges of delivery and receipt of child pornography through the mail. At the time of defendant's trial, the charges against Joseph Surin remained pending.
There is no question that Joseph Surin distributed pornographic materials through the mail, that at the time of Surin's arrest he possessed material that could be classified as child pornography and that Surin maintained an Alpine Distributor's mailing list that contained the defendant's name and address. Nonetheless, defendant submits that because there was no evidence presented at trial to tie the names on the mailing list to previous purchases of child pornography, the mailing list may not be considered as evidence of predisposition. In substance, defendant submits the Government must produce evidence that defendant had previously received child pornography through the mail before there is evidence of predisposition to commit the instant offense.
The Second Circuit recently addressed a similar issue. United States v. Gantzer, 810 F.2d 349, 352 (2nd Cir.1987). In Gantzer, defendant raised entrapment as a defense to the crime of sending obscene materials through the mail, in violation of 18 U.S.C. § 1461 (1982). The Government rebutted the entrapment defense by showing the following materials as evidence of predisposition:
(1) letters from Gantzer requesting catalogs of pornographic materials;
(2) letters to Gantzer discussing the availability of pornography; and
(3) a catalog confiscated from Gantzer that advertised pornographic films.
Gantzer challenged the documents' relevance to predisposition. Gantzer argued that since the pornographic materials were not legally obscene there existed no evidence to show predisposition to send obscene materials through the mail.
The Second Circuit disagreed finding that the evidence permitted an inference that Gantzer was predisposed. 810 F.2d at 352. The Second Circuit concluded:
Gantzer's argument rests on an incorrectly rigid interpretation of predisposition. Under Gantzer's theory, the Government could introduce evidence of a previous course of similar conduct only *776 if it could prove that the prior conduct included legally punishable criminal acts. This approach would not only burden the Government intolerably by requiring proof of the requisite criminal elements of each act introduced to show predisposition, it would also unfairly prejudice the defendant by diverting the focus of the trial to a series of mini-trials for crimes not charged in the indictment. Such an approach is particularly inappropriate where the charged offense concerns obscenity an area of law so murky and fraught with difficulty that scholars and courts have struggled for decades to distinguish between permissible pornography and unlawful obscenity. We hold that Gantzer's propensity to receive pornographic though not necessarily legally obscene materials through the mail is probative of his predisposition to send legally obscene photographs.
Id. (Emphasis added).
Although the Sixth Circuit has never addressed the issue of whether mere inferences may rebut a defense of entrapment, the Sixth Circuit has provided five factors relevant to the determination of whether a defendant is predisposed to commit a crime:
(1) the character or reputation of the defendant, including any prior criminal record;
(2) whether the suggestion of the criminal activity was initially made by the government;
(3) whether the defendant was engaged in the criminal activity for profit;
(4) whether the defendant evidenced reluctance to commit the crime but surrendered to repeated government persuasion; and
(5) the nature of the government inducement.
United States v. Johnson, 855 F.2d 299, 303 (6th Cir.1988); United States v. McLernon, 746 F.2d 1098, 1112 (6th Cir.1984); United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983). These five factors are elements to be weighed rather than prerequisites that must be satisfied.
Accepting and applying the Second Circuit's position that inferences are relevant to rebut an entrapment defense and considering the five factors offered by the Sixth Circuit, the Court finds that a reasonable mind could conclude beyond reasonable doubt that defendant was predisposed to commit the crime.
The character of the defendant infers evidence of predisposition. Defendant apparently had some prior contact with Joseph Surin, an accused distributor of child pornography. It is a matter of fact that the mailing list upon which defendant's name and address appeared was confiscated in a search incident to the lawful arrest of Joseph Surin. As a result, the Government initiated the sting operation to which defendant willfully responded.
Additional factors are whether the criminal conduct was first suggested by the government and the amount of persuasion applied by the government. Albeit the Government did send a solicitation to the defendant, the Court notes defendant acquiesced to the illegal activity without repeated Government inducement. Defendant was not the least bit reluctant to commit the offense. In fact, the defendant welcomed the opportunity to order child pornography through the mails as evidenced by the hand-written note accompanying his order.
Furthermore, the Court notes the solicitation sent to the defendant intimated illegal conduct. While a more explicit solicitation could have been used, reasonable minds could nonetheless have concluded the solicitation to which defendant responded sought to sell child pornography through the mail.
Finally, the Court notes that defendant did not stand to gain financially from receipt of the photographs. However, the receipt of obscene materials through the mail, as opposed to distribution, rarely involves a financial motive for the receiver, rather, the receiver profits through his personal use of the product. E.g. Johnson, 855 F.2d at 304.
*777 The Court hereby DENIES defendant's motion for acquittal based upon insufficient evidence of predisposition. Reasonable minds could have concluded the defendant was predisposed to commit the offense of which he has been convicted.
B. Whether The Jury Failed To Follow Their Instructions?
Defendant's motion for acquittal states in relevant part:
Had the jury accurately followed the Court's instructions, and not been influenced by extraneous considerations improperly injected into the case by the government, the jury must have found [sic] Mr. PORTER not guilty.
Defendant's Motion for Acquittal, para. 3. Nothing in defendant's brief is presented to support this conclusory statement. Nonetheless, the Court has reviewed the jury's charge and reconsidered the government's conduct in prosecuting this case and, as a result, the Court finds defendant's contention to be without merit.
Defendant's motion for acquittal pursuant to Fed.R.Crim.P. 29 is hereby DENIED.
II. DEFENDANT'S MOTION FOR A NEW TRIAL
Defendant also moves for a new trial pursuant to Fed.R.Crim.P. 33, which provides, in pertinent part:
The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.
Rule 33 grants the Court discretion to set aside a verdict that is not substantially justified by the evidence. A motion for a new trial differs from a motion for acquittal in that a new trial may be granted at the Court's discretion if required by justice whereas an acquittal may only be granted when no reasonable mind could find the defendant guilty beyond a reasonable doubt.
Defendant set forth numerous reasons to grant a new trial. Defendant relies upon his argument in support of his motion for acquittal to argue that the verdict is not supported by the evidence. The Court rejects this argument for the reasons previously set forth in this opinion addressing defendant's motion for acquittal.
Defendant also argues a new trial is appropriate because the Court omitted a portion of the jury charge requested by defendant. The jury received the following charge on entrapment:
The defendant asserts that he is a victim of entrapment.
When a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.
On the other hand, if a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to him to be a favorable opportunity is not entrapment.
If, then, you find beyond a reasonable doubt from the evidence in the case (1) that, before anything at all occurred respecting the alleged offense, the defendant was ready and willing to commit the crime charged whenever opportunity might be afforded him, and (2) that government officers or their agents did no more than offer the opportunity, then you should find that the defendant is not a victim of entrapment.
However, if the evidence leaves you with a reasonable doubt whether the defendant had the previous intent or purpose to commit the offense, apart from the inducement or persuasion of some officer or agent of the Customs Service, then it is your duty to find him not guilty.
In addition to the above cited charge, defendant requested the following:
The burden is on the prosecution to prove beyond a reasonable doubt that the defendant was not entrapped. A valid entrapment defense has two related elements: government inducement of the crime and a lack of predisposition on the *778 part of the defendant to engage in the criminal conduct.
Defendant submits that the charge given to the jury was incomplete and that the Court erred by refusing to give the additional charge requested by defendant.
The Court disagrees. The additional charge requested by defendant is redundant to the charge given to the jury. This Court's refusal to give the full charge requested by defendant does not amount to error. Accordingly, a new trial due to insufficient jury instructions is not warranted.
Defendant further argues that he was denied exculpatory material held by the Government to which he had a right to receive under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, defendant submits the U.S. Customs Service failed to respond to defendant's Subpoena which stated, in relevant part:
All records in the possession of the Customs Service concerning the investigation of ALPINE DISTRIBUTORS, a former distributor of video cassette tapes, the business records [sic] of which were seized by U.S. Customs in 1985. All records showing the mailing lists of ALPINE DISTRIBUTORS, how the mailing lists were compiled, the sources for the names on the mailing lists. The mailing list on which the name of defendant, ALLEN A. PORTER, is found and all records relating to the business dealings, if any, of ALLEN A. PORTER with ALPINE DISTRIBUTORS.
In response to this Subpoena, the Government produced one page of the Joseph Surin mailing list on which Defendant's name and address appear.
Defendant argues that the items requested "would have demonstrated the absence of any meaningful connection between the defendant and ... Joseph Surin." Brief in Support of Motion for A New Trial, p. 8. Defendant further argues "the records would also have failed to support Agent O'Malley's assertion that he received child pornography from Alpine Distributors." Id.
Defendant's specious arguments must be rejected. First, the Government never intimated that it had any evidence to prove a connection between Joseph Surin and defendant other than the fact that defendant's name appeared on Joseph Surin's mailing list. The relevant portion of that list was produced by the Government. The "absence" of any further connection between defendant and Surin is apparent from the fact the Government never represented the existence of any greater connection between the parties and the fact that no additional documentary evidence was produced. Defendant's submission that the Government must produce irrelevant documents before defendant can prove the absence of any greater relationship between Surin and defendant simply defies logic.
Second, defendant's argument that greater production of records would have proven that Joseph Surin/Alpine Distributors never provided Government Agent O'Malley with child pornography is equally unavailing. The Subpoena makes no reference to child pornography confiscated from Joseph Surin by Agent O'Malley. Defendant's statement that the Government withheld exculpatory evidence is unsupported by fact. Indeed, subsequent to trial defendant served a Subpoena upon appropriate Government agents requesting production of the alleged child pornography seized from Joseph Surin/Alpine Distributors. This Subpoena was for the purpose of making the special record on the Government's outrageous conduct. Once properly served, a Government agent appeared in this Court with two tapes, the production of which allegedly involved minor children engaged in sexually explicit conduct. The agent attested to the fact that the tapes were purchased by Agent O'Malley from Joseph Surin/Alpine Distributors.
Defendant also submits the Court erred by failing to exclude all testimony concerning Alpine Distributors. The legal basis for defendant's objection is not clear to the Court. Defendant apparently argues that the mailing list is inadmissible *779 hearsay that precludes all testimony regarding Alpine Distributors. This argument must be rejected for two reasons. First, defendant failed to make a timely objection to admission of the mailing list page. Second, assuming arguendo that the mailing list is inadmissible hearsay, this would not preclude reference of Alpine Distributors in total. To the contrary, defendant's imposition of an entrapment defense makes all evidence concerning Alpine Distributors relevant and admissible for purposes of demonstrating defendant's predisposition.
Defendant also submits the Assistant U.S. Attorney implemented prejudicial argument throughout the trial. The Court finds defendant's arguments to be misstatements of fact unsupported by the trial record. The Court found the prosecution's conduct during the taking of evidence to be acceptable. The Government's closing argument was not unconstitutionally inflammatory.[3] However, any inaccuracy espoused by the Government could and should have been brought to the jury's attention during defendant's closing argument. Similarly, the Court finds no reversible error in the Government's rebuttal argument. Contrary to defendant's representations, the Government never made the slightest of inferences to suggest that the defendant had a burden to prove his innocence.
Finally, defense counsel submits that the Court failed to provide him adequate time to prepare for trial. Counsel's submission flies in the face of the representations made by counsel on the first day of trial. Defense counsel unequivocally stated that he was ready to proceed to trial. The Court will not now allow him a second bite of the apple after receiving an unfavorable verdict.
For all of the above stated reasons, the Court hereby DENIES defendant's motion for a new trial.
III. MOTION FOR ACQUITTAL BASED UPON OUTRAGEOUS GOVERNMENT CONDUCT
Defendant contends that the Government's conduct in investigating and prosecuting this case was so outrageous that it violated the Due Process Clause of the Fifth Amendment.
Defendant has filed a brief in support of acquittal that consists of a statement of facts sixteen pages in length. Defendant's statement of facts is irrelevant,[4] fraught with inaccuracies and, for the most part, unsupported by the record.
Stripped of irrelevant contentions, it is defendant's position that the Government created and initiated a sting operation that intentionally incorporated a solicitation that would appear to a jury to be a solicitation to purchase child pornography yet, at the same time, appear to a collector of adult pornography to be a solicitation for adult pornography. It is defendant's position that the solicitation used by the U.S. Customs officials impermissibly incorporated a different, less explicit technique than that used by the U.S. Postal Service for purposes of enforcing similar laws. Defendant submits that there was never any child pornography marketed or possessed *780 by Joseph Surin and that the entire sting operation, insofar as it involved the mailing of solicitations to persons on the Alpine Distributors' mailing list, was unfounded by any reasonable suspicion.
The due process defense of outrageous Government conduct originated in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Russell, the defendant asked the court to reconsider the subjective theory of entrapment wherein the Government can defeat the entrapment defense by showing predisposition on the part of the defendant. Russell argued that the Government inducement and participation in the crime of which he was convicted was so outrageous that the Constitution barred his conviction regardless of his predisposition to commit the crime. Chief Justice Rehnquist (then Justice) rejected the argument as applied to the facts of Russell. However, in dicta, Chief Justice Rehnquist left open the question of whether outrageous government conduct alone could bar a criminal prosecution.[5]
The Sixth Circuit has recognized that, in rare instances, the conduct of law enforcement agents may be so outrageous that due process principles would bar government prosecution. U.S. v. Robinson, 763 F.2d 778, 785 (6th Cir.1985); U.S. v. Norton, 700 F.2d 1072, 1075 (6th Cir.1983), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983). Four factors have been provided by the Sixth Circuit for considering whether the conduct of Government law enforcement officers is so outrageous as to bar prosecution. These four factors are:
(1) the need for the type of Government conduct in relationship to the criminal activity;
(2) the preexistence of a criminal enterprise;
(3) the level of the direction or control of the criminal enterprise by the Government; and
(4) the impact of the Government activity to create the commission of the criminal activity.
U.S. v. Johnson, 855 F.2d at 305; Robinson, 763 F.2d at 785; Norton, 700 F.2d at 1075.
Considering these four factors, the Court concludes the Government conduct did not impinge upon the defendant's constitutional rights.
First, it must be noted that the transmission of child pornography through the mail is an elusive crime. Child pornography can only be obtained from foreign producers or from discrete contacts made between known collectors. The distribution of these materials is conducted via a black-market. There exists limited means available to apprehend perpetrators of this crime. One method is via direct mail solicitation. Defendant submits that the solicitation utilized by the Government is intentionally deceptive. Defendant further submits that the U.S. Customs Agency should have followed the standards utilized by the U.S. Postal Service to apprehend perpetrators of similar laws. This Court disagrees. While it is clear that the Government may have implemented a solicitation that was more explicit about the ages of the children, the Court cannot find that the Government's failure to do so amounts to a violation of defendant's constitutional rights. The evidence presented indicated the solicitation form to which defendant responded was modeled after mail solicitations used by two European distributors of *781 child pornography which solicited mail order sales in the United States.
Second, the Court notes there was evidence of a preexisting criminal enterprise. Regardless of defendant's assertions that child pornography was not marketed or possessed by Joseph Surin, the fact remains that Surin was charged with the distribution and receipt of child pornography through the mail and subsequently, has pled guilty to the charge of receiving child pornography through the mail.[6] A search incident to the lawful arrest of Surin revealed the existence of a mailing list apparently utilized by Surin to distribute pornography through the mail. Having reason to believe Surin was involved in the receipt and distribution of child pornography, the Government had a reasonable suspicion that Surin's mailing list contained the names of individuals interested in obtaining child pornography.
Third, the level of Government control over the enterprise may be construed as minimal. Plaintiff presented no proof that the Government maintained control or directed Alpine Distributors. Moreover, the criminal enterprise ceased to exist subsequent to the arrest of Joseph Surin.
Finally, the Court notes the minimal impact of the Government conduct in creating the commission of the offense by the defendant. The Government involvement was limited to sending a single, one-page solicitation to persons on the Alpine Distributors' mailing list. With the exception of this single solicitation, the Government did nothing to entice criminal activity.
ORDER
For the reasons stated in the accompanying Opinion, the Court hereby DENIES defendant's motion for acquittal due to insufficient evidence; motion for new trial; and motion for acquittal due to outrageous government conduct.
IT IS SO ORDERED.
NOTES
[1] Defendant has not filed a written post-trial motion requesting acquittal based on outrageous government conduct. Nonetheless, defendant concluded his special record with a request for acquittal. In addition, defendant has filed an extensive brief in support of his contention that the government's conduct was so outrageous that it violated the defendant's due process rights. Accordingly, the Court is compelled to address the issue of whether the government's conduct was so outrageous that it infringed upon defendant's constitutional rights.
[2] The government also argues that video tapes seized from defendant which contained scenes of beastiality are also evidence of defendant's predisposition to purchase child pornography through the mail. This Court has consistently rejected that theory. The fact that defendant possessed beastiality tapes was excluded from the jury.
[3] It is defense counsel's position that the Assistant United States Attorney improperly injected prejudicial argument in the government's closing argument. Having reviewed the Court's recollection of closing arguments and further reviewing notes kept throughout the trial, the Court finds defense counsel's position to be entirely unfounded. Ironically, the only improper conduct noted during closing argument was action perpetrated by defense counsel, who disrupted the trial by purposefully throwing papers across counsel table and on the floor during the government's closing argument. Defense counsel's conduct bordered on contempt. Similar conduct will not be tolerated by this Court.
[4] A vast majority of defendant's facts are irrelevant to his claim of outrageous government conduct. The defense of outrageous government conduct is essentially an entrapment defense that cannot be rebutted by proof of defendant's predisposition. Therefore the Court must limit its inquiry to review of the government's conduct in enticing the defendant to commit illegal conduct. Facts relating to conduct subsequent to the commission of the offense are not relevant to the defense of outrageous government conduct since it is impossible for government action subsequent to the offense to have had any enticing influence upon defendant.
[5] In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), Chief Justice Rehnquist sought to clarify whether outrageous government conduct could result in a violation of a defendant's due process rights even when the defendant is predisposed to commit the crime. Chief Justice Rehnquist stated that the defense of entrapment cannot "be based upon governmental misconduct in a case ... where the predisposition of the defendant to commit the crime [is] established." 425 U.S. at 488-89, 96 S.Ct. at 649-50. The Chief Justice concluded that the only remedy available to a predisposed defendant is the pursuit of a civil action against the government, not dismissal of the criminal charge. 425 U.S. at 490, 96 S.Ct. at 1650.
Notwithstanding Chief Justice Rehnquist's clear indication that outrageous government conduct should not be a defense to a criminal action, this Court is constrained to review the defense since the Sixth Circuit has recognized that outrageous government conduct can, in some instances, bar prosecution. E.g. U.S. v. Robinson, 763 F.2d 778, 785 (6th Cir.1985).
[6] Defendant has strenuously argued that child pornography was not marketed or possessed by Joseph Surin. Therefore, defendant argues, the government sting operation was unfounded by any reasonable suspicion. To support his claim that Joseph Surin did not possess or market child pornography, defendant showed this Court, during defendant's special record on outrageous government conduct, portions of a tape allegedly purchased by Agent O'Malley from Joseph Surin that purportedly contained child pornography. The tape was accompanied by an affidavit of a physician who holds the opinion that certain of the females depicted on the tape were under the age of eighteen. In addition, an affidavit allegedly executed by a female depicted on the tape was presented. The affiant states that she participated in many pornographic movies while under the age of eighteen, including the movie allegedly purchased from Joseph Surin by Agent O'Malley.
This movie, together with accompanying affidavits, is sufficient to establish a reasonable suspicion that Joseph Surin possessed and marketed child pornography. The question of whether Joseph Surin was indeed guilty of distributing child pornography is not before this Court and is irrelevant to these proceedings since, regardless of Joseph Surin's guilt, the government had a reasonable suspicion to proceed with its sting operation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918948/ | 90 N.J. Super. 498 (1966)
218 A.2d 175
IN THE MATTER OF THE ESTATE OF MARY COMLY, DECEASED.
Superior Court of New Jersey, Gloucester County Court, Probate Division.
Decided March 1, 1966.
*499 Mr. David E. Crabtree, attorney for plaintiff Helen B. Heughan.
Messrs. Hannold & Hannold, attorneys for First County National Bank & Trust Company, trustee under will of Mary Comly, deceased.
Mr. Joseph H. Enos, attorney for defendant Dorothye Comly Crawford.
Mr. Samuel P. Comly, III, pro se.
KRAMER, J.C.C.
This is a proceeding brought by Helen B. Heughan, an adopted daughter of Captain Samuel P. Comly, Jr., to compel distribution to her of a one-third portion of a trust fund established under the will of Mary Comly, Captain Comly's half-sister. (Captain Comly is referred to in the will merely as "my brother.") The basis of plaintiff's claim is that she is a daughter of Captain Comly within the meaning of the fifth clause of the will of Mary Comly.
The First County National Bank and Trust Company of Woodbury, the substituted trustee, and the two natural children of Captain Comly, Dorothye Comly Crawford and Samuel P. Comly III, are joined as parties defendant. Depositions were taken of plaintiff Helen B. Heughan and Captain Comly, and oral arguments on the order to show cause were heard by the court on December 10, 1965. Briefs have been filed by all parties and all facts necessary to reach a decision are before the court.
*500 The central question in this action is whether an adopted adult may inherit the same as the natural children of the adoptive parent under the will of a third party.
Mary Comly died July 22, 1936. Her will, dated June 23, 1936, was probated in the Gloucester County surrogate's court August 5, 1936. The fifth clause of that will provides:
"FIFTH: I give, devise and bequeath all of the rest, residue and remainder of my estate, of whatsoever kind and wheresoever situate, of which I may die seized or possessed, unto Edmund H. Carpenter of Woodbury, New Jersey in trust, nevertheless to invest reinvest and keep the same invested, and herein order and direct that all income on the said trust fund shall be accumulated and added to the principal of the said trust fund until such time as the child or children of my brother Samuel P. Comly, Jr. shall have graduated from the Woodbury High School, or such high school or other preparatory school as she or they may later attend.
At such time as the child or children of my said brother Samuel P. Comly, Jr., shall have graduated from the high school as herein referred to, then and in that event the accumulation of income upon the said trust fund shall become available for the needs of the child of my said brother should she desire to continue her education or should wish to use the accumulation of income for any business project, and in the event that my said brother has more than one child, that at such time as the oldest of said children shall have graduated from the said high school it is my order that the said accumulation of income shall be divided into equal portions, share and share alike, and the share or portion shall be immediately available to each of the said children as they shall respectively graduate from the high school, and for the purposes herein designated.
At such time as the child or children of my said brother Samuel P. Comly, Jr., shall have graduated from the Woodbury High School, or such other high school or other preparatory school as she or they may attend, and in the event that she or they shall be desirous of continuing her or their education, or desirous of entering into any business project, then and in that event my trustee herein named shall be authorized to expend from the accumulated income of the said trust fund such amount as shall be necessary to defray the expenses of the child or children of my said brother in the furtherance of her or their advanced education, or such amounts as may be necessary in connection with any business project into which she or they may enter.
I order and direct that my said trustee from and after such time as the child of my said brother Samuel P. Comly, Jr. or children, shall be graduated from the Woodbury High School, or such other high school or other preparatory school as she or they may enter, to pay the net income arising from the said trust fund unto the child of my brother, Samuel P. Comly, Jr., if there be but one child, until such time as the *501 said child shall arrive at the age of thirty-five years, or in the event that there shall be more than one child, then and in that event to pay the income arising from the said trust fund in equal shares, share and share alike, to the children of my said brother, until the youngest of the said children shall arrive at the age of thirty-five years; and in the event that there be but one child, upon the said child arriving at the age of thirty-five years I order and direct that the principal of the said trust fund, together with all accumulation of income thereon, shall be paid to the said child, or in the event that there shall be more than one child of my said brother, then and in that event upon each of the said children arriving at the age of thirty-five years their equal undivided share or portion of the said trust fund shall be paid to such child, their or her heirs and assigns forever."
Dorothye Comly Crawford was born August 23, 1931; Samuel P. Comly III was born August 24, 1936. Plaintiff Helen B. Heughan was born October 31, 1928. Plaintiff was adopted by Captain Comly August 26, 1965; she is married and living with her husband and they have four children.
Captain Comly testified in his deposition that his purpose in adopting Mrs. Heughan was to enable her and her husband to remain in the home they now occupy after Captain Comly's death. Plaintiff and her husband and children are living in a home in which Captain Comly was given a life interest under the will of his mother, Hannah L. Comly, with the remainder going to his children. Captain Comly testified that this interest in the house was his motive in adopting Mrs. Heughan rather than any interest in the trust estate which is the subject of this litigation. However, it must be noted that a few days after the adoption, on August 26, 1965, demand was made upon the trustee for Mrs. Heughan's "share" of the trust, and this action to compel distribution was commenced only two months after the adoption.
In support of her claim plaintiff relies on In Re Coe's Estate, 42 N.J. 485 (1964), which held that adopted children of a named person were "children" within the will of testatrix who was not related to the named person. There is no indication in that opinion that the children involved were adults at the time of their adoption. In Coe the court refers to N.J.S.A. 9:3-30 and not to N.J.S. 2A:22-1 et seq. The latter *502 citation deals with the adoption of adults. From these statutory references it would appear that the court in Coe did not consider the adoption of adults in reaching its decision.
The basis of the decision in Coe is that a person making a will does not intend to distinguish between natural and adopted children. Chief Justice Weintraub wrote:
"We cannot believe it probable that strangers to the adoption would differentiate between the natural child and the adopted child of another. Rather we believe it more likely that they accept the relationships established by the parent whether the bond be natural or by adoption and seek to advance those relationships precisely as that parent would. None of us discriminates among children of a relative or friend upon a biological basis. * * * We ought not to impute to others instincts contrary to our own." (at p. 492)
It would seem that this acceptance of the adopted child by third persons would not occur where the adopted "child" is a 36-year-old married woman with four children, who was adopted merely to give her an interest in the home in which she was living with her family. As was stated by Justice Wachenfeld in Bank of New York v. Black, 26 N.J. 276 (1958):
"The object of our investigation is to determine the probable intent of the testatrix by a preponderance of the evidence and to carry it out in accordance with her wishes even though they be imperfectly expressed. We do what elemental justice and fundamental fairness demand under the necessitous circumstances. Mrs. Byrd's testament is final beyond reprieve. She cannot return to illuminate or to modify its terms. Therefore, we put ourselves in her position in so far as possible, endeavoring to accomplish what she would have done could she have envisioned the present inquiry."
Surely Mary Comly did not envision that her half-brother's "children" would include an adopted adult.
Clause Fifth of the will of Mary Comly provides that the trust fund may be used to continue the education of Captain Comly's children upon graduation from high school or for any business venture they might undertake upon graduation from high school. If Captain Comly had only one child, that *503 child could enjoy the income from the trust upon graduation from high school until distribution at age 35.
In ascertaining the subjective interest of testatrix, courts will give primary emphasis to her dominant plan and purpose as they appear from the entirety of the will when read and considered in the light of the surrounding facts and circumstances. Fidelity Union Trust v. Robert, 36 N.J. 561 (1961). In this case testatrix clearly intended that the trust could be used to benefit their children during their youth, with final distribution postponed until they reached age 35. Clearly, she did not envision or intend that one of the beneficiaries of the trust would become such after having already reached the age of 35 through the rather unusual and seldom used method of the adult adoption statute.
While undeniably it is the policy of the Legislature to place adopted children on a level with natural children, such a policy should not be used to permit the adoption of adults for the sole purpose of giving them an interest in property. If any adult that Captain Comly chose to adopt qualified as a "child" under the will of Mary Comly, then, in effect, Captain Comly would have a power of appointment over the property and could lessen the shares of his natural children as much as he pleased without any obligation on his part to provide and care for the adopted "child." Such a result was obviously not intended by the court in Coe or by testatrix.
For these reasons the complaint for distribution must be denied. Counsel for the corporate trustee will submit an order consented to as to form by other counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918961/ | 90 N.J. Super. 550 (1966)
218 A.2d 647
EMMA BRADLEY, PLAINTIFF-APPELLANT,
v.
HARRY POWLES, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued March 21, 1966.
Decided April 1, 1966.
*551 Before Judges CONFORD, KILKENNY and LEONARD.
Mr. John Selawsky argued the cause for appellant (Messrs. Marcus & Levy, attorneys).
Mr. Gerald M. Gorrin argued the cause for respondent (Messrs. Lieberman, Gorrin, Connors & Ironson, attorneys).
PER CURIAM.
Plaintiff appeals from an order of the Superior Court, Law Division, denying her motion to amend the complaint and the summons so as to designate the defendant as "Harry Powles, a/k/a Henry Powles, the person intended being the operator of the vehicle involved" in an accident which occurred on January 23, 1963, and as the result of which plaintiff suffered personal injuries for which she brought this suit. Plaintiff also appeals from a summary judgment entered in favor of defendant Harry Powles on the basis of affidavits showing that no agency relationship existed between Harry Powles, the owner of the vehicle in question and Henry E. Powles, his son, who was the operator of the vehicle which allegedly struck plaintiff as she was walking across Monroe Street in the City of Passaic, New Jersey.
Harry A. Powles, the father, was the owner of the automobile which was being driven at the time of the accident by his son, Henry E. Powles. In the title of the complaint the defendant was designated simply as "Harry Powles." In the body of the complaint the defendant was not named at all, but was referred to as the owner and operator of the motor vehicle. The complaint reasonably indicates that the intended defendant was the operator of the vehicle. The gist of the action lies in the assertion that the defendant was operating the vehicle and did so "negligently, carelessly and *552 recklessly so as to cause same to collide with the person of the plaintiff." But for the reference to defendant as also being the owner of the vehicle, there would be no doubt that the person sued was the operator.
The complaint was filed on January 15, 1965, just prior to the expiration of the two-year statute of limitations. A copy of the summons and complaint was apparently served upon Harry A. Powles, the father, personally at his dwelling house, but that was also the usual place of abode of his son and would have constituted good service upon the son also if he were the intended defendant. R.R. 4:4-4(a).
The motion to amend was not made until after the statute of limitations had run when, during the pendency of depositions, the ambiguity in the situation was discovered. The trial court denied the motion on the theory that plaintiff was seeking to bring in a new party after the statute of limitations had run. The plaintiff's position was that the motion sought merely to correct a misnomer.
We conclude that plaintiff's motion to amend the summons and complaint to correct a misnomer should have been granted and that this was not a situation wherein a plaintiff sought to add a defendant after the statute of limitations had run. For comparable situations in which it was held that the motion to correct the misnomer should be granted, see Denver v. Forbes, 26 F.R.D. 614 (E.D. Pa. 1960); Vadenais v. Christina, 325 F.2d 157 (2 Cir. 1963). Also cf. Mears v. Economy Brake Service, Inc., 78 N.J. Super. 218 (App. Div. 1963).
The order under review is reversed and the case is remanded to the trial court with directions that the caption be amended to correct the defendant's name "Harry Powles" to "Henry E. Powles," with the understanding that the suit is against the defendant son alone as operator of the vehicle and not against his father, Harry A. Powles, as owner thereof. Therefore, the summary judgment, which was in favor of the father Harry Powles, is vacated, since under our determination he was not the intended defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547098/ | 159 B.R. 129 (1993)
CONTINENTAL BANK N.A., Plaintiff,
v.
Eileen MODANSKY and Aaron Modansky, Defendants.
No. 92 Civ. 8693 (RPP).
United States District Court, S.D. New York.
August 25, 1993.
*130 Strassberg & Strassberg, P.C. by Todd Strassberg, New York City, for plaintiff.
Leonard Zack & Associates by Leonard Zack, New York City, for defendants.
OPINION AND ORDER
ROBERT P. PATTERSON, Jr., District Judge.
Plaintiff Continental Bank N.A. ("Continental") brought this action pursuant to Article 10 of the New York Debtor and Creditor Law ("DCL"), Sections 273, 275, and 276, to set aside three transfers of 1 Tor Terrace, New City, New York, a parcel of real estate containing the former residence of the defendants, Eileen and Aaron Modansky. This Court's jurisdiction is based on diversity, 28 U.S.C. § 1332.
This case was tried to the Court on April 29, 1993, and May 24, 1993. This opinion constitutes the Court's findings of fact and conclusions of law.
On January 16, 1989, defendant Aaron Modansky executed a deed transferring title to 1 Tor Terrace, New City, New York, *131 to defendant Eileen Modansky. On February 22, 1989, the deed was filed with the Rockland County Clerk. No transfer tax was paid in connection with the transfer (Pl.Exh. 4). The property in question had been valued at $550,000 in a Statement of Financial Condition as of February 28, 1987, submitted by defendant Aaron Modansky in connection with his personal guarantees of a line of credit of $15,000,000 from Continental to Ajayem Lumber Corp. and its affiliated corporations ("Ajayem") (Pl.Exh. 1; Tr, dated Apr. 29, 1993, at 97).
Continental claims that Aaron Modansky's conveyance of 1 Tor Terrace constitutes a fraudulent conveyance pursuant to Section 273 of New York's DCL. DCL § 273 reads as follows:
Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.
Since a "creditor" under the DCL is "a person having any claim whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent," and a "debt" includes "any legal liability, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent," (DCL § 270), defendant Aaron Modansky by virtue of his guarantees of Ajayem's line of credit from Continental was indebted to Continental at the time he made the transfers.
Continental maintains that the transfers were made without fair consideration and that Aaron Modansky was insolvent at the time he made the transfers, thus violating DCL § 273.
Defendants maintain that Aaron Modansky was not insolvent at the time of transfer, January 16, 1989, and that 1 Tor Terrace was transferred for fair consideration.
A. Insolvency Under DCL § 271
Continental bases its claim that Aaron Modansky was insolvent on January 16, 1989, on the Statement of Financial Condition as of February 28, 1987, (Pl.Exh. 1), submitted by Aaron Modansky on April 15, 1987, in support of his guarantees of Ajayem's $15 million line of credit obtained from Continental on May 7, 1987 (Pl.Exh. 2). That Statement of Financial Condition reads as follows:
AARON MODANSKY
STATEMENT OF FINANCIAL CONDITION
AS OF FEBRUARY 28, 1987
ASSETS
Cash in bank $ 51,000
IRA accounts 6,750
Pension plan (Note 2) 100,000
Investments in privately
owned companies: (Note 3)
42% Ajayem Investors Corp. $1,000,000
50% Modansky Brothersland and bldg., Walden, NY 550,000
33 1/3% 801 Properties Co. land and building, Charlotte, North
Carolina 72,000
25% New Family Properties land and building Columbus,
Ohio 20,000
33 1/3% Family Properties land and building Tampa, Florida 160,000
_________
1,802,000
Marketable securities 310,000
Personal residence (Note 4) 550,000
__________
TOTAL ASSETS $2,819,750
__________
*132
LIABILITIES AND NET WORTH
Mortgage payable (Note 4) $30,000
Estimated income tax (Note 5) 367,000
Net worth 2,422,750
TOTAL LIABILITIES AND NET WORTH $2,819,750
__________
Commitments and contingencies (Note 6)
AARON MODANSKY
NOTES TO STATEMENTS OF FINANCIAL CONDITION
FEBRUARY 28, 1987
(See Accountants' Compilation Report)
NOTE 1 The accompanying statement of financial condition includes the assets and
liabilities of Aaron Modansky. Assets are stated at their estimated current
values and liabilities at their estimated current amount.
NOTE 2 Pension plan represents Aaron Modansky's vested interest in the Ajayem
Lumber Pension Trust.
NOTE 3 Investments in privately owned companies represents interests in stock of
Ajayem Lumber Corp. and affiliated companies and partnership interests in
companies which own land and buildings used by the operating companies.
NOTE 4 The personal residence at 1 Tor Terrace, New City, New York is a single family
home which is owned 100% by Aaron Modansky. The mortgage payable is a
first mortgage against the property.
NOTE 5 The estimated current amounts of liabilities at February 28, 1987 equaled their
tax bases. Estimated income taxes have been provided on the excess of the
estimated current values of assets over their tax bases as if the estimated
current values of the assets had been realized on the statement date, using
applicable tax laws and regulations. The provision will probably differ from
the amounts of income taxes that eventually might be paid because those
amounts are determined by the timing and the method of disposal or realization
and the tax laws and regulations in effect at the time of disposal or realization.
NOTE 6 The individual is a guarantor on loans made to the various privately owned
companies.
As explained below, by January 16, 1989, Mr. Modansky's net worth was negative, and no longer the $2,422,750 positive net worth it was on February 28, 1987, as indicated in Plaintiff's Exhibit 1.
Each of the personal guarantees executed by Aaron Modansky on April 15, 1987, stated it was "unlimited" in amount, "plus interest on such amount and plus all expenses in enforcing this guaranty," and stated that "in the event of . . . the inability of the Debtor . . . to pay debts as they mature . . ., undersigned will pay to the Bank forthwith the full amount which would be payable hereunder. . . ." (Pl.Exh. 2).
On October 26, 1988, Ajayem and each of its affiliates by Aaron Modansky, President, executed Chapter 11 Petitions in Bankruptcy filed in the United States Bankruptcy Court for the Southern District of New York on November 4, 1988, stating that they were unable to pay their debts as they mature (Pl.Exh. 17). Accordingly, Mr. Modansky's guarantees of the Ajayem debts to Continental by their terms became immediately payable. Ajayem's debts to Continental at this point were approximately $9.4 million (Def.Exh. A at 6).
On December 8, 1988, upon the consent of the debtors and Continental, a Final Order Authorizing the Limited Use of Cash Collateral and Granting Liens and Administrative Priority (the "cash collateral order") was entered by the Bankruptcy Court pursuant to which the closely held companies owning the land and buildings listed in Plaintiff's Exhibit 1 granted security interests, over existing loans of $1.9 million, in their real estate holdings to Continental, and Continental agreed to extend cash collateral to the debtors until January 9, 1989, and not to sue Ajayem Investors Corp., which held all the stock of the debtor companies, or Aaron Modansky before that date (Def.Exh. A). On January 9, 1989, the *133 Bankruptcy Court entered a stipulation extending the effective date of the cash collateral order to January 16, 1989 (Pl.Exh. 27). Prior to January 16, 1989, Ajayem Investors Corp. also filed for bankruptcy (Tr., dated May 24, 1993, at 13-14).
In view of the inability of the Ajayem Lumber Corporation and its affiliated companies to pay their debts as they matured in November, Mr. Modansky had a probable liability to pay those debts on and after November 4, 1988, pursuant to his guarantees (Pl.Exh. 2). The cash collateral order entered December 8, 1988, deferred the probability of this liability to January 16, 1989, at which time Continental had a right to pursue Mr. Modansky on the guarantees.
In determining a debtor's insolvency, Section 271 of the DCL requires that not only absolute liabilities but that probable liabilities also be included. It states:
§ 271. Insolvency
1. A person is insolvent when the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured.
Under New York law, a guarantee of a loan is a probable liability which must be considered in determining a person's solvency at the time of a transfer under DCL § 273. Marine Midland Bank v. Stein, 105 Misc.2d 768, 433 N.Y.S.2d 325, 327 (Sup.Ct.1980); accord Chase Manhattan Bank v. Oppenheim, 109 Misc.2d 649, 440 N.Y.S.2d 829, 831 (Sup.Ct.1981).
Applying this new probable liability of $9.4 million, which existed on January 16, 1989, against Mr. Modansky's Statement of Financial Condition, showing a net worth of approximately $2.4 million as of February 28, 1987, results in a deficit of a probable liability of $7 million.[1]
Other adjustments to Mr. Modansky's Statement of Financial Condition have to be made to reflect the changes in his financial circumstances since February 28, 1987.
First, the February 28, 1987, Statement of Financial Condition valued Mr. Modansky's investments in five privately owned companies at $1,802,000 (Pl.Exh. 1). As a result of the cash collateral order, four of those five companies granted Continental additional security interests in their real estate holdings, each of which was leased to Ajayem, of up to $1.5 million, thus reducing their equity values (Def.Exh. A; Pl. Exh. 24). Also, as previously stated, Ajayem Investors Corp., which is the fifth privately owned company listed in Plaintiff's Exhibit 1 as an investment of Mr. Modansky, filed for bankruptcy. (Tr., dated May 24, 1993, at 13-14). Thus, by January 16, 1989, Mr. Modansky's fractional interests in the privately owned companies had been reduced in terms of the "fair salable value" of these assets, the standard required to be used in determining insolvency under DCL § 271, to insignificant values from the $1,802,000 total listed in the Statement of Financial Condition.[2]
In addition, for purposes of evaluating Mr. Modansky's solvency, the value for the Ajayem Lumber Pension Trust, included in the Statement of Financial Condition at $100,000, cannot be considered. DCL § 270 in relevant part provides:
In this article "assets" of a debtor means property not exempt from liability for his debts. To the extent that any property is liable for any debts of the debtor, such property shall be included in his assets.
*134 It is uncontested that pursuant to Section 5205(c) of the New York Civil Practice Law and Rules ("CPLR"), the Ajayem Lumber Pension Trust is exempt from application to Mr. Modansky's debts. See In re Orlebeke, 141 B.R. 569, 570 (Bankr.S.D.N.Y. 1992). Accordingly, Mr. Modansky's assets as listed on his February 28, 1987, Statement of Financial Condition must be further reduced by $100,000.
Finally, for purposes of calculating solvency, Mr. Modansky's personal residence at 1 Tor Terrace, which is the subject of this fraudulent conveyance action, must not be considered since DCL § 273 requires by its terms that the effect of the conveyance of property transferred be considered in determining solvency.
In view of the foregoing, it seems clear that under New York law, Aaron Modansky was insolvent when he transferred 1 Tor Terrace to his wife on January 16, 1989.
B. Fair Consideration Under DCL § 272
What is "fair consideration" is governed by DCL § 272, which reads as follows:
§ 272. Fair Consideration
Fair consideration is given for property, or obligation,
a. When in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied, or
b. When such property, or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property, or obligation obtained.
In this case, defendants maintain that 1 Tor Terrace was transferred to Eileen Modansky in consideration for her earlier investment of money inherited from her father. Mrs. Modansky allegedly invested $260,000 to construct a swimming facility in the premises at 1 Tor Terrace for health and rehabilitative purposes (Def.Exh. C).
The Court does not accept defendants' contention. Although the improvements were in fact made on the premises from around 1976 to 1978, (Tr., dated May 24, 1993, at 23-24), transfers to relatives require careful scrutiny. White v. Benjamin, 150 N.Y. 258, 265, 44 N.E. 956 (1896). The evidence adduced at trial indicates the absence of an antecedent debt. First, no transfer taxes were paid on the transfer of title to Eileen Modansky (Pl.Exh. 4). Second, Aaron Modansky did not disclose this antecedent debt on his Statement of Financial Condition submitted to Continental on April 15, 1987 (Pl.Exh. 1). Third, there has been no documentary proof of the amount of any inheritance by Eileen Modansky. Nor has there been any documentary evidence demonstrating that the indoor swimming pool and other improvements in fact cost $260,000 and were paid for by Mrs. Modansky.
Furthermore, even if the alleged antecedent debt of $260,000 did exist, it did not constitute adequate consideration for the transfer of 1 Tor Terrace. Assuming the antecedent debt existed, property valued at $550,000, with a $30,000 mortgage, was transferred to Eileen Modansky for one-half that value, $260,000. See Wilson v. Robinson, 83 F.2d 397, 398 (2d Cir.) (transfer of equity of $5,000 in satisfaction of alleged antecedent debt of $3,000 to $4,000 was not a transfer for fair consideration), cert. dismissed, 299 U.S. 616, 57 S.Ct. 757, 81 L.Ed. 455 (1936).
On January 22, 1990, only one year after the transfer to Eileen Modansky, the defendants decided to obtain funds by refinancing 1 Tor Terrace for the purchase of a residence in Florida in Eileen Modansky's name; accordingly, the property was transferred to joint ownership and thereafter $263,000 was borrowed for purchase of the Florida residence (Pl.Exhs. 5, 10, 15, 16). The refinancing was closed on March 12, 1990 (Pl.Exh. 16). No transfer tax was paid on the transfer to joint ownership (Pl.Exh. 5), and on March 20, 1990, Eileen *135 Modansky took title to defendants' current residence, 10614 Boca Woods Lane, Boca Raton, Florida (Pl.Exh. 23).[3]
For the reasons stated, the transfer of 1 Tor Terrace on January 16, 1989, is found to not have been made for fair consideration.
C. Conclusion
Accordingly, the conveyance of 1 Tor Terrace by Aaron Modansky to Eileen Modansky is found to be fraudulent since it was a conveyance made by a person who was insolvent as to creditors and it was made without a fair consideration.
The conveyance diminished Mr. Modansky's assets, as represented on the February 28, 1987, Statement of Financial Condition submitted in connection with the guarantees at issue, by $550,000, less the mortgage of $30,000 outstanding, or by a net sum of $520,000. Under these circumstances, Continental is entitled to a judgment against Eileen Modansky in an amount up to $520,000, but not to exceed the unsatisfied amount of the judgment entered against Aaron Modansky and Sheldon Modansky on May 6, 1992, in the District Court for the Northern District of Illinois. See DeWest Realty Corp. v. Internal Revenue Service, 418 F.Supp. 1274, 1279 (S.D.N.Y.1976); Farm Stores, Inc. v. School Feeding Corp., 102 A.D.2d 249, 477 N.Y.S.2d 374, 379 (2d Dep't, 1984), aff'd, 64 N.Y.2d 1065, 489 N.Y.S.2d 877, 479 N.E.2d 222 (1985).
Based on the timing and other circumstances of transfer, the transfer of 1 Tor Terrace to Eileen Modansky is found to have been made with actual intent to defraud creditors. Accordingly, Continental is entitled to recover its reasonable attorney's fees incurred in this action against Aaron Modansky and Eileen Modansky in an amount to be fixed by the Court. DCL § 276-a.
IT IS SO ORDERED.
NOTES
[1] The Statement of Financial Condition indicates that Mr. Modansky had other contingent liabilities as of February 28, 1987, in all probability guarantees of the existing loans of $1.9 million on the closely held real estate holdings leased to Ajayem, which would have further reduced his stated net worth of $2.4 million.
[2] In determining insolvency under DCL § 271, "[n]ot every asset, but only such as are salable, enter the equation." Chase Nat'l Bank v. United States Trust Co., 236 A.D. 500, 260 N.Y.S. 40, 44 (1st Dep't, 1932), aff'd, 262 N.Y. 557, 188 N.E. 63 (1933). For example, a debtor's minority interest in the share capital of a realty corporation owned by the debtor and members of his family was held to be of virtually no value on the theory that few investors would wish to acquire a small minority interest in a corporation held closely by members of one family. Id.
[3] On March 22, 1990, Continental instituted its action against Aaron Modansky, Sheldon Modansky, and Ajayem Investors Corp. in the United States District Court for the Northern District of Illinois based on their personal guarantees of Ajayem's $15 million revolving loan (Pl.Exh. 19). This action resulted in a judgment against Aaron and Sheldon Modansky in the principal amount of $4,055,999.81, plus interest of $2,277,523.33 (Pl.Exh. 3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547102/ | 159 B.R. 287 (1993)
In re James Martin LAW, SSN: XXX-XX-XXXX, Debtor.
James Martin LAW, Plaintiff,
v.
THE EDUCATIONAL RESOURCES INSTITUTE, INC., a/k/a "TERI", Defendant.
In re Lawrence Martin LAW, SSN: XXX-XX-XXXX, and Eunice Ione LAW, SSN: XXX-XX-XXXX, Debtors.
Lawrence Martin LAW and Eunice Ione Law, Plaintiffs,
v.
THE EDUCATIONAL RESOURCES INSTITUTE, INC., a/k/a "TERI", Defendant.
Bankruptcy Nos. 91-40584, 92-40108, Adv. Nos. 92-4015, 92-4016.
United States Bankruptcy Court, D. South Dakota, S.D.
October 12, 1993.
*288 *289 Mary Ann Galland, Sioux Falls, SD, for plaintiffs/debtors.
John C. Quaintance, Sioux Falls, SD, for defendant.
PEDER K. ECKER, Bankruptcy Judge.
The matter before the Court is a consolidation of two adversary complaints seeking to determine the dischargeability of a student loan debt based on the undue hardship provision of 11 U.S.C. § 523(a)(8)(B). Following discovery, a status conference was held, and in lieu of trial, the parties requested the Court make its determination based upon a stipulated record following the submission of written authority and argument.
BACKGROUND
In the spring of 1990, James Martin Law [hereinafter "Debtor"], read a magazine advertisement about a course of study leading to a commercial pilot's license from a flight training program accredited by the Fort Scott Community College in Fort Scott, Kansas. Debtor, a high school graduate with twelve years' experience as a painter, opted for the career change, enrolled in the program, and agreed to pay, in advance, the $18,095 tuition for aircraft flight training and ground school instruction in fixed wing pilot courses. In July, 1990, Debtor moved from South Dakota to Fort Scott, Kansas, took up residence in a motel made available for students by the flight school's owner, Dallas Foster, and began the six-month course of study at Mistwood Aviation, Inc., a Kansas corporation located at the Fort Scott municipal airport, some six miles from Fort Scott Community College.
To finance this endeavor, Debtor executed a $20,000 promissory note in favor of South Shore Bank, Quincy, Massachusetts. Debtor's father, Lawrence Martin Law, co-signed the obligation. The Educational Resources Institute, Inc. [hereinafter "TERI"], a private, nonprofit corporation, guaranteed the student loan. All of the loan financing was completed at Mistwood Aviation, Inc., but loan proceeds were disbursed from the bank to the student loan processing center at Fort Scott Community College. The $19,200 proceeds were payable to Debtor and Fort Scott Community College. Debtor endorsed the check and delivered it directly to Dallas Foster, who was to remit $1,105 back to Fort Scott Community College for registration costs and fees. Pursuant to the loan agreement, *290 repayment began in August, 1990, consisting of 240 monthly payments of $216.75 each. Five monthly payments were made before the loan was defaulted upon.
Debtor began Mistwood Aviation's program in mid-July, spending approximately three hours each day in classroom training and one to three hours each day in flight training. By the first part of August, however, the schedule began to change as the flight school began to experience financial difficulties. Opportunity for flight training was often restricted or simply unavailable because there was no money to refuel planes. Dallas Foster assured students there was no need to worry that the real problem was the fact city officials revoked the school's rights to the airport and so the school would be moving to another location. Before this "remedy" became a reality, however, flight training was completely terminated because insurance coverage for the planes ceased to exist. Classroom instruction was also affected. Instructors refused to teach because they were not getting paid. One instructor teaching an instrument course had to be replaced by a student just completing the course when it was learned the instructor was not licensed to teach. Even student housing was affected when Dallas Foster lost the motel, forcing Debtor to live in an apartment on his own. Finally, late one night in mid-January, 1991, just five months after Debtor arrived at the school, students observed Dallas Foster taking files, computers, and possessions from the school. A sign was hung on the door announcing the school's closing. Dallas Foster disappeared for a period of time but was later arrested in Kansas City apparently, he had gone to Europe soliciting foreign students and was collecting advance tuition fees. Eventually, Mistwood Aviation, Inc., filed a voluntary Chapter 7 bankruptcy petition in the District of Kansas.
Having spent five months at Mistwood Aviation, Inc., and having accumulated a $20,000 debt, Debtor was left with the equivalent of two or two-and-a-half weeks' training, only enough to pass a private pilot's license examination. But a private pilot's license is not marketable, and lacking funds to keep it current, Debtor let it lapse. Hoping to assuage their predicament, the students contacted Fort Scott city officials, an attorney, and, on two separate occasions once before and once after the school closed Fort Scott Community College, but no assistance was given. Fort Scott Community College did refund the $1,105 registration fees back to the bank, but told Debtor it was not responsible for losing the remaining $18,095.
Debtor returned to South Dakota at the end of January, 1991, and abandoned his plans to become a commercial pilot. Already in his early thirties, Debtor would have to start training all over again and believed he would be too old to compete against younger pilots looking for employment with commercial airlines or subcarriers. Instead, Debtor worked as a salesman at a Sioux Falls hobby store earning $3,707 taxable income in 1991. This amount was not sufficient to meet monthly obligations, and so Debtor filed a voluntary Chapter 7 bankruptcy petition August 20, 1991. The petition indicated Debtor's assets were $1,980 and liabilities, owed to six unsecured creditors, were $28,565.11 ($20,726.22 owed to TERI). At the time of filing, Debtor had no income and no monthly expenses. A Chapter 7 discharge was granted November 25, 1991, and this adversary complaint was filed April 9, 1992.
In the summer, 1992, Debtor moved again, this time so he could continue living with his parents in Springfield, Missouri. At the time depositions were taken in August, 1992, Debtor still had no income but was in the process of finding employment. The only expense was a $50 monthly reaffirmation payment for a second student loan obtained to pay living expenses while attending Mistwood Aviation, Inc. By the end of 1992, Debtor had earned $6,358 taxable income. Debtor is single, has never married, has no dependents, and is in good physical health.
Lawrence Martin Law was forced to quit a life-time career in sales in order to care for his wife, Eunice, who was also forced to *291 stop working after suffering a stroke. She remains in poor health. Unable to manage their financial affairs despite having sold their own airplane to help pay bills, the couple filed a joint voluntary Chapter 7 bankruptcy petition February 20, 1992. The petition listed assets as $101,935 and liabilities as $151,646. The schedules listed income as $1,524 per month and expenses as $1,741.45 per month. The couple listed 33 creditors, all holding unsecured claims, except one claim of $67,000, secured by their home. At the end of October, 1992, the secured creditor obtained relief from the automatic stay in order to foreclose upon the real property. Having surrendered their South Dakota residence at the age of 64, the couple moved to Springfield, Missouri, to be near a daughter. There, they rent a duplex and live on the same fixed income, but with fewer monthly obligations: 1) Rent $500; 2) Food $250; 3) Gas $50; 4) Medication $70; and 5) Utilities Unknown. In addition, the couple stipulated to the nondischargeability of a $2,500 debt which created a monthly obligation of $125, but only through mid-1993. The couple owns no real property and only limited personal property, including a 1973 Chrysler automobile. They are both covered by a group health insurance plan. Lawrence intends to work part-time in Springfield, Missouri.
DISCUSSION
Student loans are nondischargeable in bankruptcy unless one of two exceptions apply: either the loan first came due more than seven years before the bankruptcy was filed or an undue hardship will occur if repayment is required. 11 U.S.C. § 523(a)(8)(A), (B). The general rule and its two exceptions were enacted to curb a specific kind of bankruptcy abuse abuse by students who finance higher education and file bankruptcy petitions immediately upon graduation even though they may have well-paying jobs, few other debts, and no extenuating circumstances to justify discharging educational loan debt. See Report of the Commission on the Bankruptcy Laws of the United States, H.R.Doc. No. 93-137, 93d Cong., 1st Sess., Pt. II 140, n. 14 (1973). It was also enacted over concern for the integrity of student loan programs, wanting to keep them intact so that funds would always be available for future students seeking higher education financing. In re Palmer, 153 B.R. 888, 893 (Bankr.D.S.D.1993), quoting 124 Cong.Rec. 1791 (1978) (remarks of Rep. Ertel); In re Pelkowski, 990 F.2d 737, 743 (3d Cir.1993). This impetus has created a strong policy against permitting debtors to escape repaying student loans. Brunner v. New York State Higher Educ. Services, 831 F.2d 395 (2d Cir.1987); In re Conner, 89 B.R. 744, 747 (Bankr.N.D.Ill.1988). Because Section 523(a)(8) was not enacted to deal with a particular kind of abuser but, rather, to deal with a particular type of abuse, the provision applies to all types of debtors responsible for student loan debt, be they maker, co-maker, student, or parent of a student. In re Palmer, 153 B.R. at 895. In contrast, the "undue hardship" exception focuses on the particular debtor. Student loan debt may be discharged if requiring repayment "will impose an undue hardship on the debtor and the debtor's dependents." 11 U.S.C. § 523(a)(8)(B).
The Bankruptcy Code does not define "undue hardship," because limiting these "words of art" to an "inflexible dictionary definition" would defeat the discretionary interpretation of the facts in each case. In re Ipsen, 149 B.R. 583, 585 (Bankr.W.D.Mo.1992); In re Clinton, 133 B.R. 96, 97 (Bankr.N.D.Ohio 1991); In re Webb, 132 B.R. 199, 202 (Bankr.M.D.Fla. 1991); In re Johnson, 121 B.R. 91, 93 (Bankr.N.D.Okla.1990); In re Correll, 105 B.R. 302, 305 (Bankr.W.D.Pa.1989). In re Andrews, 661 F.2d 702, 704 (8th Cir.1981). Despite its discretionary nature, the interpretation does, nonetheless, contemplate the existence of unique and extraordinary circumstances, for the fact that repayment would merely impose a hardship is insufficient: "most or possibly all debtors could make a `garden variety' hardship claim in good faith." In re Foreman, 119 B.R. 584, 587 (Bankr.S.D.Ohio 1990), citing In re D'Ettore, 106 B.R. 715, 718 (Bankr. M.D.Fla.1989); In re Abrams, 19 B.R. 64, *292 66 (Bankr.D.Neb.1982). Such a determination also means a debtor may not have created, either willfully or negligently, his own financial default, but, rather, the condition must have resulted from "factors beyond his reasonable control." In re Roberson, 999 F.2d 1132, 1136 (7th Cir.1993), citing Report of the Commission on the Bankruptcy Laws of the United States at 140 n. 16 (1973).
The debtor who invokes the "undue hardship" exception bears the burden of proving it exists. In re Foreman, 119 B.R. at 586; Matter of Coleman, 98 B.R. 443, 447 (Bankr.S.D.Ind.1989); In re Binder, 54 B.R. 736, 739 (Bankr.D.N.D.1985); In re Keenan, 53 B.R. 913, 916-17 (Bankr. D.Conn.1985); Shoberg v. Minn. Higher Educ. Coordinating Council, 41 B.R. 684, 687 (Bankr.D.Minn.1984). And to ensure the burden is met, courts have fashioned and endorsed a variety of tests. Two predominant tests were articulated in In re Johnson, 5 B.C.D. 532 (Bankr.E.D.Pa. 1979), and in In re Brunner, 46 B.R. 752 (Bankr.S.D.N.Y.1985). The Johnson test is really three tests in one, but if a debtor fails to pass any given test, the inquiry ends and the student loan is nondischargeable; otherwise, the court will progress to the next test: 1) a mechanical test which compares the debtor's financial resources and expenses in view of educational levels, skills, ability to retain work, and work history; 2) a good faith test which analyzes whether the debtor put forth best efforts to minimize expenses, to begin repaying the loan, and, which also analyzes whether the debtor created his own financial difficulties and insolvency; and 3) a policy test which asks if the primary motive for filing was to discharge the student loan debt and, if so, whether the debtor benefited financially from the education received. In re Simons, 119 B.R. 589, 592 (Bankr.S.D.Ohio 1990); In re Correll, 105 B.R. at 305; Matter of Coleman, 98 B.R. at 449; In re Conner, 89 B.R. at 747; In re Frech, 62 B.R. 235, 240 (Bankr.D.Minn.1986). The Brunner test also has three requirements, including a showing 1) that, based on current income and expenses, the debtor cannot maintain a "minimal" standard of living for himself and any dependents if forced to repay the student loan; 2) that added circumstances exist to show this status is likely to continue for most of the repayment period; and 3) that the debtor has made a good faith effort to repay the loan. In re Roberson, 999 F.2d at 1134-35, citing In re Brunner, 831 F.2d at 396. See also In re Ipsen, 149 B.R. at 585; In re Webb, 132 B.R. at 202; In re Garneau, 122 B.R. 178, 179-80 (Bankr.W.D.N.Y.1990); In re Bowen, 37 B.R. 171, 172 (Bankr.M.D.Fla. 1984).
This Court hesitates to accept any one test as the be-all-end-all method for finding "undue hardship." Instead, it adopts a case-by-case approach that is fact-sensitive to the unique aspects of the case. In re Evans, 131 B.R. 372, 376 (Bankr. S.D.Ohio 1991); In re Simons, 119 B.R. at 593; In re Correll, 105 B.R. at 304; Matter of Coleman, 98 B.R. at 451. And while some of the circuits favor one test over another, this circuit has not adopted any particular "bright line" method of finding "undue hardship." In In re Andrews, this circuit's court stated necessary living expenses should be considered, which is consistent with the mechanical test in Johnson, but the court also found it was proper to consider additional circumstances such as long-term illness, which is consistent with the second test in Brunner. In re Andrews, 661 F.2d at 703-05. When compared, the various tests indicate nuances, or subtle shades of similar, overlapping requirements. A combined approach to finding "undue hardship" affords a determination that contextually considers both the debtor's situation and the policies underlying 11 U.S.C. § 523(a)(8). In re Conner, 89 B.R. at 747. For example, "good faith" efforts are considered in all "undue hardship" tests, but rather than endorsing any particular test, this Court simply found it was, contextually, one of the more significant considerations which helped to decide the case of In re Rice, 13 B.R. 614, 615 (Bankr.D.S.D.1981). Moreover, a case-by-case approach also ensures an appropriate, equitable balance will be struck: concern for cases involving extreme abuse and concern *293 for the overall fresh start policy associated with bankruptcy relief. In re Correll, 105 B.R. at 304, citing In re Ford, 22 B.R. 442, 445 (Bankr.W.D.N.Y.1982). As intended, the exception is narrowly construed. In re Webb, 132 B.R. at 201; In re Keenan, 53 B.R. at 916.
DECISION
Debtor made a decision to embark on a course of study that would lead to a commercial pilot's license. The decision involved a personal and financial commitment. After Debtor and his father visited the training facility, spoke with the owner and instructors, and were satisfied with the apparent integrity of the program, Debtor was prepared to meet that commitment. After all, the school was accredited by and affiliated with a midwest community college and, certainly, there was no indication that the flight school was on course for disaster or that the owner of the flight training program would prove to be disreputable. But that was the case. Within five months, the owner of the flight training program disappeared, the school physically closed, and the school filed a voluntary Chapter 7 bankruptcy petition. Debtor received the equivalent of two or two-and-a-half weeks' worth of training and a private pilot's license, useless for employment purposes. The community college refunded the course registration fees but left Debtor dangling with the remaining loss.
This experience plunged Debtor $20,000 deeper in debt and, subsequently, into bankruptcy. Clearly, the school's disintegration was beyond Debtor's control. Despite false assurances that the students need not worry, the financial crisis which produced an immediate effect on the program's quality quickly escalated until the school was forced to close when its owner fled like a thief in the night. That forced Debtor to forfeit his education. This student loan was intended to pay for an education program leading to a commercial pilot's license. That program vaporized long before any benefit, financial or educational, was realized. Based on these circumstances, Debtor has not created the type of abuse intended to be remedied by 11 U.S.C. § 523(a)(8).
The real abuse is found with the community college, which was also quick to close its door of responsibility and accountability. Debtor and some of the other fifty students from Mistwood Aviation, Inc., made two pleas to the community college: the first was before the school closed, when students began to notice the effects of the school's financial problems. The students went to the dean of students at the community college, concerned about losing money because of what was "happening" at the school. The dean stated that, at that time, there was nothing the college could do. The second visit was after the school closed. The students asked for their money back. The college simply said it was not responsible. Unfortunately, the community college chose to play a purely perfunctory role its only bona fide connection to Debtor as a student was as the student loan disbursement agent. The loss in this case belongs more appropriately to the college rather than these debtors. The real abuse was that the community college participated in a guaranteed student loan program but failed to monitor the quality of education being delivered by its affiliated fly-by-night flight training program. The education process is abused when educational institutions focus on recruitment activities and enrollment statistics and collect profits, while ignoring the responsibility to provide and deliver quality education. Without a doubt, Debtor did not receive the bargained-for education: how can it be beneficial to waste five months' time and energy earning a license that should have been earned in the first two-week period, which, even when earned, is not the requisite achievement for employment as a pilot?
The Court also finds there was a good faith effort to repay the loan. As scheduled, a steady stream of payments began in August, 1990, and continued through February, 1991, one month after the school actually closed. Debtor's "good faith" is further evidenced in the fact that the student loan used to finance living expenses *294 while at school has been reaffirmed and is being repaid.
In essence, these are the unique circumstances that favor a finding of "undue hardship." The financial considerations current and future income versus expenses must also be weighed, but in light of the overall facts, remain in the periphery:
At the time of filing and still one year later when depositions were taken, Debtor had no income his only "resources" were leftover proceeds from the reaffirmed student loan used to pay living expenses while at Mistwood Aviation, Inc., and the support he received by living with his parents. The only expense is a $50 monthly payment for the reaffirmed debt. Adding another $216 each month when there is no income will create an "undue hardship." Obviously, the Court's contemplation does not allow Debtor to remain unemployed, but neither is it likely he will continue to avoid certain expenses by living with his parents. Considering the wages available to a high school graduate with a steady employment history of painting and some sales experience, this twenty-year repayment schedule will make it difficult to manage a "minimal" standard of living, even if Debtor remains single with no dependents.
Debtor's parents are in their 60s and live on a fixed income. They own no real property and have little personal property. Eunice Law is in poor health now. As both of them grow older, health concerns will undoubtedly increase, and, along with that, medical expenses, despite the fact they are covered by health insurance. Their income and expenses are manageable now, but to add another $216 each month until they are both well into their 80s would unquestionably create an "undue hardship."
CONCLUSION
Once Debtor opted to change careers and made a personal and financial commitment to obtain a commercial pilot's license, circumstances beyond his control created a condition of insolvency. Debtor did not voluntarily leave flight training school it left him literally. And the good faith effort to repay this student loan was not abandoned; rather, payments were made even after the school's financial problems affected the quality of training being delivered. The school closed before Debtor received any financial benefit from the bargained-for education. Debtor was left without any marketable skills. To require a $20,000 student loan be repaid over twenty years in exchange for having received the equivalent of two-and-a-half weeks of useless training would, in this Court's opinion, create an "undue hardship" for both Debtor and his co-signing parents. The unique and extraordinary circumstances relative to the education being sought, when considered in view of the abuse intended to be remedied by Section 523(a)(8) and in view of the fresh start policy of bankruptcy discharge, heavily influence the Court to strike an equitable balance in favor of finding "undue hardship." The Court will enter an appropriate order.
ORDER DETERMINING DISCHARGEABILITY UNDER 11 U.S.C. § 523(a)(8)(B)
Pursuant to the Court's decision entered this date regarding two consolidated adversary complaints seeking to determine the dischargeability of a student loan debt under the "undue hardship" provision of 11 U.S.C. § 523(a)(8)(B), and the Court having determined that based on the unique facts and circumstances of this case as balanced by the fresh start policy of bankruptcy and the abuse intended to be remedied by 11 U.S.C. § 523(a)(8), it is hereby
ORDERED that judgment be granted in favor of these Plaintiffs inasmuch as this case does not represent the kind of abuse intended to be remedied by 11 U.S.C. § 523(a)(8) and that an "undue hardship" will result if repayment is required. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547103/ | 809 A.2d 420 (2001)
Rosalind P. MOORE, as parent & natural guardian of John Doe, minor; Rosalind P. Moore, in her own right, Appellant,
v.
BOARD OF DIRECTORS OF CITY TRUSTS, Girard College Board of Managers, the Estate of Stephen Girard, the Administrators of the Estate of Stephen Girard.
Commonwealth Court of Pennsylvania.
Argued October 5, 2000.
Decided January 18, 2001.
Publication Ordered October 28, 2002.
Rhonda Hill Wilson, Philadelphia, for appellant.
Howard A. Rosenthal, Philadelphia, for appellee.
BEFORE: DOYLE, President Judge, LEADBETTER, J., and LEDERER, Senior Judge.
*421 OPINION BY Judge LEADBETTER.
Rosalind Moore sued Girard College, its Board of Managers and the Board of Directors of City Trusts (Board) to recover damages for injuries sustained by her son while he was a boarding student at the school. Defendants, in preliminary objections, asserted sovereign immunity premised upon the contention that the Board of Directors of City Trusts is the state agency created by statute to administer the College and that the College and its managers have no independent legal existence apart from the Board. The Court of Common Pleas of Philadelphia County sustained the preliminary objections and dismissed the complaint with prejudice. We affirm.
In her complaint, Moore avers that Girard College and its Board of Managers breached duties in contract and tort to keep her son safe from the physical and sexual abuse he suffered at the hands of fellow students.[1] In the caption of her complaint, Moore lists as a defendant the Board of Directors of City Trusts,[2] however, the complaint contains no averment concerning the Board's legal relationship to Girard College or the Board's rights and duties to students at the College. In their preliminary objections, defendants assert that "neither the College nor its Board of Managers has any legally separate existence apart from the Board and they cannot be sued independently." Defendants further assert that the Board is immune from suit as a Commonwealth agency. The court of common pleas agreed.
Common pleas reasoned that: pursuant to statute, the Board possesses all duties and powers in the management and control of Girard College; "Girard College, its staff, and the Board are one and the same;" and, "the Board is a Commonwealth agency for purposes of sovereign immunity." Having concluded that Moore's claim can only be asserted against the Board, a party immune from liability, common pleas dismissed the complaint. Thereafter Moore filed the present appeal. On appeal, Moore concedes that suit against the Board is barred by the immunity afforded to Commonwealth agencies pursuant to Article I, § 11 of the Pennsylvania Constitution, 1 Pa.C.S. § 2310 and 42 Pa.C.S. §§ 8501, 8521-8522. However, she contends that Girard College is a charitable trust existing separately from the Board and operated on a day to day basis by a board of managers who are employees of the trust. Based on this contention, Moore argues that sovereign immunity does not apply to bar suit against the College and its managers and therefore the court of common pleas erred in sustaining preliminary objections and dismissing the complaint.
In reviewing an order sustaining preliminary objections, we accept as true the well-pleaded material facts in the complaint and all reasonable inferences arising therefrom. Willet v. Medical Catastrophe Loss Fund, 549 Pa. 613, 619-620, 702 A.2d 850, 853 (1997). However, we are not bound by assertions in the complaint that amount to conclusions of law, expressions of opinion or unreasonable inferences.
*422 Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth.1999). We will affirm the dismissal of a complaint on preliminary objections only where it is clear and free from doubt that plaintiff is unable to maintain a cause of action. Willet, 549 Pa. at 619, 702 A.2d at 853. In the present case, the issue as to whether Moore can recover damages directly from the College or its managers is a question of law over which we exercise plenary review.
The Board was established by the Act of June 30, 1869, P.L. 1276, 53 P.S. §§ 16365-16370, to administer estates bequeathed to the City of Philadelphia including in particular Girard College, which was established by bequest from Stephen Girard in trust to the city of Philadelphia. Under the terms of the statute, Girard College and the Board are not distinct legal entities. See School Dist. of Lancaster v. Lake Asbestos of Quebec, Ltd., 56 F.3d 515, 521 (3d Cir.1995). "[T]o sue Girard College, you must sue the Board of Directors as its trustee." Id. This tenet underlays the conclusion of the United States Supreme Court in Pennsylvania v. The Board of Directors, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957). The Court held that the College's refusal to admit two students on the basis of their race constituted state action prohibited under the Fourteenth Amendment because "[t]he Board which operates Girard College is an agency of the State of Pennsylvania." Id. at 231, 77 S.Ct. 806. The Court's holding is based on the premise that Girard College does not act independently of the Board charged by statute with control over all aspects of College's operations. See In re School Asbestos Litigation, 56 F.3d at 521.
Pursuant to the statutory assignment of all "duties, rights and powers" concerning the property and estate dedicated to the city by Girard, the Board has sole control of the assets of Girard College. See 53 P.S. § 16365. Therefore, Moore's claim for damages, directed as it must be to the only entity capable of satisfying a judgment, cannot survive the immunity that she has conceded cloaks the Board. The court of common pleas properly dismissed the complaint.
Accordingly, we affirm.[3]
The decision in this case was reached before the expiration of the appointment of Senior Judge Lederer to the Commonwealth Court by the Supreme Court of Pennsylvania.
ORDER
AND NOW, this 18th day of January, 2001, the order of the Court of Common Pleas of Philadelphia County in the above captioned matter is hereby AFFIRMED.
NOTES
[1] The complaint sets forth, in three counts, claims for: negligence in the supervision of students and the hiring and training of personnel; breach of contract duties to Moore and her son as third party beneficiaries of a contract between the Commonwealth and the school to provide educational services; and fraudulently misrepresenting the school as safe and secure despite knowledge of prior incidences of sexual abuse.
[2] The Board is identified in the caption as "City Board of Trustees as Trustees of the Estate of Stephen Girard."
[3] There is no merit in the suggestion, at footnote 7 of appellee's brief, that Girard College, its managers and the Board receive an award of attorney's fees incurred in defending this appeal. The appeal is neither frivolous nor vexatious so as to justify the award of fees under Pa. R.A.P. 2744. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918965/ | 218 A.2d 41 (1966)
Joseph M. STONE, Executor of the Will of Elna H. Wharton, Deceased, Appellant,
v.
Agnes Wharton BREWSTER, Appellee.
No. 3788.
District of Columbia Court of Appeals.
Argued January 18, 1966.
Decided March 24, 1966.
Warren Woods, Washington, D. C., with whom Jon F. Hollengreen, Washington, D. C., was on the brief, for appellant. Edward G. Villalon, Washington, D. C., also entered an appearance for appellant.
Richard A. Mehler, Washington, D. C., with whom Lawrence S. Schaffner, Washington, D. C., was on the brief, for appellee.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
HOOD, Chief Judge.
The District of Columbia Public Assistance Act of 1962,[1] makes the husband, wife, father, mother, or adult child of a person in need of public assistance responsible, according to his ability to pay, for the support of such person; and the statute provides that such person may bring an action to require any of the named responsible persons to provide such support. Such an action must be brought in the Domestic Relations Branch of the trial court, and that court is given the power to make orders requiring the responsible person to pay "such sum or sums of money in such installments as the court in its discretion may direct and *42 such orders may be enforced in the same manner as orders for alimony."[2]
The present action was brought under the statute by a mother to compel one of her adult daughters to support her. The trial court denied relief.[3] The mother appealed but died while the appeal was pending. Her executor was substituted as appellant and seeks to continue prosecution of the appeal. Appellee daughter has moved to dismiss the appeal as moot, contending that the mother's death abated the action and that the statute may not be given retrospective effect.
We agree that the statute has only a prospective effect. When the mother died the action was ended, and therefore no order may now be entered for her support. At common law there was no duty on an adult child to support his parent,[4] and our statute does not ipso facto place such an obligation on the child. The statutory obligation does not arise until the court first determines the parent's need for support, the child's ability to furnish such support, and the extent to which such support should be furnished.[5]
It appears clear to us that the statute contemplates present and future support. We find nothing in the statute indicating that a child may be required to make restitution for what should have been paid in the past or to reimburse a private person for support already furnished.[6]
Since we hold that the statute is prospective only in its operation and effect, and that any right the mother had under the statute ceased to exist at her death, we need not consider the question of survival of such a statutory cause of action under D.C.Code 1961, § 12-101 (Supp. V, 1966).[7]
Appeal dismissed.
NOTES
[1] D.C.Code 1961, §§ 3-201 to 3-223 (Supp. V, 1966).
[2] D.C.Code 1961, § 3-218(a) (Supp. V, 1966).
[3] Under our disposition of the pending motion it is not necessary to discuss why relief was denied or whether such denial was correct.
[4] In re Fitzwater's Guardianship, 69 F. Supp. 866 (D.D.C.1947).
[5] See Condon v. Pomeroy-Grace, 73 Conn. 607, 48 A. 756, 53 L.R.A. 696 (1901); In re Seely's Estate, 268 Wis. 498, 67 N.W.2d 836 (1955).
[6] See Haskamp v. Dwenger, 85 Ind.App. 255, 153 N.E. 815 (1926). Under a different statute, D.C.Code 1961, § 21-586 (Supp. V, 1966), it has been held that a relative of sufficient financial ability is liable for reimbursement to the District of Columbia "for the cost * * * of maintenance * * * including treatment," of one mentally ill. Harris v. District of Columbia, D.C.Cir., 357 F.2d 593 (decided March 4, 1966).
[7] For cases discussing the survival of actions somewhat similar to the one here involved, see In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60, 144 A.L.R. 264 (1942); Creighton v. Pope County, 386 Ill. 468, 54 N.E.2d 543, 153 A.L.R. 802 (1944). Cf. State v. Stone, Tex.Civ.App., 271 S.W.2d 741 (1954). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591752/ | 27 N.Y.2d 501 (1970)
The People of the State of New York, Respondent,
v.
Clarence Jones, Appellant.
Court of Appeals of the State of New York.
Argued April 14, 1970.
Decided May 14, 1970.
William E. Hellerstein and Milton Adler for appellant.
Eugene Gold, District Attorney (Stanley M. Meyer of counsel), for respondent.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.
Judgment affirmed, no opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2695648/ | [Cite as McComas v. Dept. of Natural Resources, 2010-Ohio-4337.]
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
CHAZ T. MCCOMAS
Plaintiff
v.
DEPARTMENT OF NATURAL RESOURCES, et al.
Defendants
Case No. 2009-05153
Judge Clark B. Weaver Sr.
DECISION
{¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.
{¶ 2} This case arises as a result of a motor vehicle collision that occurred on
June 27, 2007, at approximately 7:40 a.m., in Athens County, Ohio. At the time, plaintiff
was operating a 1992 Honda Civic southbound on State Route (SR) 690. Dean A.
Ludwig, an employee of defendant, the Ohio Department of Natural Resources, was
traveling northbound on SR 690 in a 1994 Chevrolet truck, with an attached flatbed
trailer that was loaded with heavy equipment. Ludwig was en route to Stroud’s Run
State Park to deliver the equipment. The collision occurred when Ludwig was making a
westbound turn onto County Road (CR) 20, also known as Stroud’s Run Road. Both
SR 690 and CR 20 are two-lane roadways; there were no stop signs or traffic signals
controlling traffic on SR 690. Approximately 150 feet from the intersection there is a
steeply-graded hill that obscures vision for both northbound and southbound travelers.
{¶ 3} Ludwig testified that he slowed almost to a stop when approaching the
intersection and that, because of the hill blocking his view of on-coming traffic, he
leaned his head out of the opened driver’s side window to listen for approaching traffic.
He stated that he neither saw nor heard any traffic in any direction before he proceeded
to make his turn. Plaintiff testified that he was traveling below the 55 mile-per-hour
(mph) speed limit, at approximately 40-45 mph, as he crested the hill and observed
Ludwig’s vehicle making its westbound turn through the intersection. It is undisputed
that neither driver could see the other until plaintiff crested the hill and that, at such
point, the collision was unavoidable due to the short distance between the crest of the
hill and the intersection. Plaintiff’s vehicle struck the right rear axle of Ludwig’s trailer,
which caused both extensive damage to the front of plaintiff’s vehicle and his multiple
injuries.
{¶ 4} Plaintiff alleges that Ludwig was negligent in failing to yield the right of way
and that his negligence was the sole proximate cause of the accident.
{¶ 5} In order for plaintiff to prevail upon his claim of negligence, plaintiff must
prove by a preponderance of the evidence that Ludwig owed him a duty, that Ludwig’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-
Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
{¶ 6} R.C. 4511.42 states:
{¶ 7} “(A) The operator of a vehicle * * * intending to turn to the left within an
intersection or into an alley, private road, or driveway shall yield the right of way to any
vehicle * * * approaching from the opposite direction, whenever the approaching vehicle
* * * is within the intersection or so close to the intersection, * * * as to constitute an
immediate hazard.”
{¶ 8} Additionally, R.C. 4511.39 states:
{¶ 9} “(A) No person shall turn a vehicle * * * or move right or left upon a
highway unless and until such person has exercised due care to ascertain that the
movement can be made with reasonable safety * * *.”
{¶ 10} Plaintiff maintains that he had the presumed right of way to travel
unimpeded though the intersection as long as he did so in a lawful manner. He
contends that he was not speeding, and the court notes that there was no evidence that
plaintiff was otherwise driving recklessly. Plaintiff further contends that, although
Ludwig could not have seen his vehicle until it crested the hill and the accident became
unavoidable, Ludwig was negligent in failing to come to a complete stop and to ensure
by listening that no traffic was approaching before commencing the westbound turn.
Plaintiff testified that his vehicle was equipped with a “cat-back” exhaust muffler that
dramatically intensified its sound and that should have made its approach evident.
{¶ 11} In response, defendant argues that Ludwig exercised all care that was due
under the circumstances. Defendant insists that, in light of the obstruction of the view, it
is immaterial whether Ludwig came to a complete stop, since he was required to yield to
a vehicle that he could not see in any event. Defendant also maintains that it was
reasonable for Ludwig to come to a rolling stop at the intersection because of the
length and weight1 of his vehicle and the amount of time it would have taken to
completely stop and then re-accelerate, actions that would have kept his vehicle in the
intersection and in a position of peril for a longer period of time.
{¶ 12} In addition to plaintiff and Ludwig, the court also heard testimony from
Trooper Fred Cook, of the Ohio State Highway Patrol. Trooper Cook testified regarding
his measurements of the accident scene and a videotape that he produced of the
northbound and southbound approaches to the intersection approximately three years
after the accident. Upon review of the testimony and other evidence presented, the
court makes the following determination.
{¶ 13} It is undisputed that Ludwig had a duty to yield to southbound traffic and to
exercise due care before executing his westbound turn at CR 20. Given the known
sight obstruction, the court finds that the duty of ordinary care necessarily included the
duty to listen carefully before proceeding into the intersection. Indeed, Ludwig testified
that he knew that he would not be able to see whether any southbound traffic was
approaching, and so that is why he chose to lean out from the truck window to listen.
The court finds that once such action is undertaken, it must be done with all due care
required under the circumstances and Ludwig’s testimony that he did so lacked
credibility. The court is particularly persuaded in this regard by Trooper Cook’s
videotape (Defendant’s Exhibit A), which depicts a sedan-style vehicle proceeding
through the intersection at CR 20 and SR 690 as Cook’s vehicle, with the driver’s
1
According to Ludwig, the truck was approximately 20 feet long and the attached trailer was
approximately the same length; the equipment that was loaded on the trailer was estimated at
window open, remains stopped and waiting to turn westbound. The sound of the
approaching vehicle is clearly audible on the videotape and is sufficiently clear to put a
driver on notice that it would not be safe to proceed with a westbound turn until the
other vehicle had passed through the intersection. Moreover, in this case, the sound of
plaintiff’s vehicle, with its amplified muffler system, should have been readily discernible.
The court concludes that whether Ludwig came to a complete stop or did not, he failed
to exercise due care before proceeding into and through the intersection.
{¶ 14} Nonetheless, even though plaintiff had the right of way as he approached
the intersection, and was driving below the 55 mph speed limit, R.C. 4511.21, provides:
{¶ 15} “(A) No person shall operate a motor vehicle * * * at a speed greater or
less than is reasonable or proper, having due regard to the traffic, surface, and width of
the street or highway and any other conditions and no person shall drive any motor
vehicle * * * upon any street or highway at a greater speed than will permit the person to
bring it to a stop within the assured clear distance ahead.” (Emphasis added.)
{¶ 16} In State v. Dehnke (1974), 40 Ohio App.2d 194, the court explained that:
“[i]n considering the wording of [R.C. 4511.21], we find that the single basic requirement
is that the speed be reasonable under the circumstances existing. The statutory limits
for various types of roads or highways furnishes a two pronged presumption affecting
the presentation of evidence. A speed in excess of the statutory limit is a prima facie
unreasonable speed; a speed at or below the statutory limit is a prima facie reasonable
speed. But the ultimate criterion is that the speed be reasonable considering the
conditions then existing.” Id. at 195-196.
{¶ 17} The court found plaintiff to be a credible witness and does not doubt his
testimony that he was traveling below the speed limit, or at approximately 40-45 mph.
Plaintiff also testified that, prior to the accident, he had traveled SR 690 on many
occasions, that he was aware of the blind spot created by the hill and that, although he
had never previously had either an accident or a “near miss” at the location, he
considered the intersection at CR 20 to be dangerous, “messed up,” and “scary.” He
noted that deer were known to cross the road in that area during the early morning
hours, or about the time that he was traveling on the day of the accident.
{¶ 18} In Trooper Cook’s video, it can be seen that the intersection is located in a
approximately four tons.
rural area, that SR 690 is a hilly, curving roadway with forested land on either side and
that on southbound SR 690, well before the intersection, there is a yellow cautionary
sign depicting the symbol for an intersection ahead. The court notes that below the
intersection sign there is second cautionary sign with the wording “20 mph” as a
suggested speed limit. Also located along the roadway are cautionary signs warning of
deer crossing and a sharp incline at the intersection. The presence of those signs in the
area persuades the court that a speed of 40-45 mph is not prudent when approaching
the intersection.
{¶ 19} Moreover, “[w]hile it is true that generally one has a right to assume that
other drivers will exercise due care and observe the law, this does not permit one to
drive blindly down the highway. A driver is always under a duty to exercise ordinary
care under the circumstances.” Orr v. Zeff (Mar. 26, 1980), Hamilton App. No. C-
790022. The court finds that, given plaintiff’s knowledge of the dangerous condition of
the intersection, his familiarity with the surroundings, and the potential for interaction
with deer or other wildlife, a lower speed than 40-45 mph would have been reasonable.
Accordingly, Ohio’s comparative fault statute, R.C. 2315.33,2 is applicable.
{¶ 20} Although the court recognizes that the collision occurred at a very poorly-
designed intersection, that issue was not raised at the trial. However, when such
intersections are encountered by members of the motoring public, it is incumbent upon
them, in the exercise of ordinary care, to effectively utilize their experience and
judgment to negotiate those intersections safely. Upon consideration of the testimony
and other evidence presented, the court finds that plaintiff has proved his negligence
claim by a preponderance of the evidence; however, the degree of fault attributable to
him in failing to drive at a reasonable speed for the existing conditions is 50 percent.
Judgment shall be entered accordingly in favor of plaintiff and the case shall be set for
2
R.C. 2315.33 provides:
“The contributory fault of a person does not bar the person as plaintiff from recovering damages
that have directly and proximately resulted from the tortious conduct of one or more other persons, if the
contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons
from whom the plaintiff seeks recovery in this action * * *. The court shall diminish any compensatory
damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of
tortious conduct of the plaintiff * * *.”
trial on the issue of damages.
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
CHAZ T. MCCOMAS
Plaintiff
v.
DEPARTMENT OF NATURAL RESOURCES, et al.
Defendants
Case No. 2009-05153
Judge Clark B. Weaver Sr.
JUDGMENT ENTRY
This case was tried to the court on the issue of liability. The court has
considered
the evidence and, for the reasons set forth in the decision filed concurrently herewith,
judgment is rendered in favor of plaintiff. The case will be set for trial on the issue of
damages which shall be reduced by 50 percent, to account for plaintiff’s contributory
negligence.
_____________________________________
CLARK B. WEAVER SR.
Judge
cc:
Adam H. Leonatti Frank E. Todaro
929 Harrison Avenue, Suite 205 Robert J. Wagoner
Columbus, Ohio 43215 471 East Broad Street, Suite 1303
Columbus, Ohio 43215-3853
James P. Dinsmore
Peter E. DeMarco
Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
LH/cmd/Filed September 2, 2010/To S.C. reporter September 14, 2010 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1586888/ | 944 So. 2d 987 (2006)
MOORER
v.
McNESBY.
No. SC06-1738.
Supreme Court of Florida.
November 22, 2006.
Decision without published opinion. Habeas Corpus volume dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586874/ | 709 F. Supp. 216 (1989)
Margaret FLEMING, mother and next friend to Dale Fleming, a minor, Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY, an Illinois corporation, Defendant.
Civ. A. No. 89-B-260.
United States District Court, D. Colorado.
March 31, 1989.
William P. Godsman, Law Offices of John G. Salmon, P.C., Denver, Colo., for plaintiffs.
Robert A. Zupkus, Zupkus & Ayd, P.C., Denver, Colo., for defendant.
MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
This matter is before the Court on plaintiffs', Margaret and Dale Fleming (Flemings), motion to remand this action to the Arapahoe County District Court pursuant to 28 U.S.C. § 1332(c). Flemings, Colorado residents, contend that under the provisions of § 1332(c), defendant Allstate Insurance Company (Allstate), an Illinois corporation, is deemed a resident of Colorado and no diversity of citizenship exists, so that this Court does not have subject matter jurisdiction. I disagree and deny Flemings' motion.
In 1986, plaintiff Dale Fleming, a pedestrian, was hit by a car driven by Judith Ann Hodgeson (Hodgeson), a Colorado resident. As a result of the accident, Dale Fleming suffered bodily injuries. Hodgeson carried no-fault insurance through Allstate.
On January 25, 1989, Flemings sued Allstate in the Arapahoe County District Court for Allstate's failure to provide no-fault benefits as required by § 10-4-708, C.R.S. (1987 Repl.Vol. 4A). Flemings claimed entitlement to personal injury protection (PIP) benefits under Hodgeson's insurance policy. Hodgeson was not joined as a party-defendant.
Allstate removed this action to the United States District Court for the District of Colorado (the federal court). Allstate argues that the federal court has original jurisdiction under 28 U.S.C. § 1332(a) and that removal is proper under 28 U.S.C. § 1441(a). The sole issue is whether 28 U.S.C. § 1332(c) applies to this case.
28 U.S.C. § 1332(c) provides in pertinent part:
[I]n any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business. (emphasis added).
The language of § 1332(c) is clear and unambiguous. It is applicable only to policies or contracts of liability insurance and actions to which the insured is not joined as a party defendant.
Under the Colorado Auto Reparations Act (no-fault statute) every owner of a *217 motor vehicle who operates it on the state public highways is required to maintain an insurance policy that contains both liability and PIP coverage. § 10-4-706, C.R.S. (1987 Repl.Vol 4A). Liability and PIP are two distinct types of coverage. Camacho v. Daffern, 622 P.2d 610 (Colo.App.1981); Watkins v. Allstate Insurance Company, 503 F. Supp. 848 (E.D.Mich.1980); but see Ford Motor Co. v. Insurance Co. of North America, 669 F.2d 421 (6th Cir.1982); McMurry v. Prudential Property and Casualty Ins. Co., 458 F. Supp. 209 (E.D. Mich.1978). A PIP claim is an action against the PIP insurer under a contract, where the PIP claimant assumes the status of an insured. Cingoranelli v. St. Paul Fire & Marine Insurance, 658 P.2d 863 (Colo.1983). It is not a direct action for tort liability. Watkins v. Allstate Insurance Company, supra.
Section 1332(c) clearly and unambiguously applies only to direct actions between a third party and the insurer to impose liability for the negligence of its insured. It does not apply to actions between the insurer and the insured or one afforded the status of an insured. Tuck v. United Services Automobile Assn., 859 F.2d 842 (10th Cir.1988) (uninsured motorists coverage); Bowers v. Continental Insurance Co., 753 F.2d 1574 (11th Cir.), cert. denied, 473 U.S. 906, 105 S. Ct. 3531, 87 L. Ed. 2d 655 (1985). Because this action is brought against the insurer by parties afforded the status of insureds, § 1332(c) does not apply.
The purpose of § 1332(c) is to restrict federal diversity jurisdiction where state law authorizes a direct tort action by a third-party, injured by an insured tortfeasor, against the insured's insurance company and the insured is not a party. Ford Motor Co. v. Insurance Co. of North America, supra. at 424-425. Although no-fault insurance operates like direct action statutes and permits a person claiming injury or damage arising from the ownership or use of a motor vehicle to sue the insurer rather than the owner or operator of the vehicle, no-fault insurance statutes had not been adopted in any jurisdiction when Congress enacted § 1332(c). Id. Thus, § 1332(c) could not have been intended by Congress to apply to no-fault actions.
The 10th Circuit's rationale in Tuck v. United Services Automobile Assn., supra., directs the result in this case. As the 10th Circuit explained, quoting from Fortson v. St. Paul Fire and Marine Ins. Co., 751 F.2d 1157, 1159 (11th Cir.1985):
[Section 1332(c)] was enacted by Congress in order to eliminate the basis for diversity jurisdiction in states that allow an injured third-party claimant to sue an insurance company for payment of a claim without joining the company's insured as a party, where the insured would be a nondiverse party, even though the party insurance company would otherwise be diverse. But where the suit brought either by the insured or by an injured third party is based not on the primary liability covered by the liability insurance policy but on the insurer's failure to settle within policy limits or in good faith, the section 1332(c) direct action proviso does not preclude diversity jurisdiction.
Tuck v. United Services Automobile Assn., supra. at 847. Unless the claim against the insurance company is of such a nature that the liability sought to be imposed could be imposed against the insured, the action is not a direct action under § 1332(c). Id. Thus, where, as here, the PIP claimant is not suing to impose liability on the insurer for its insured's negligence, the action is not direct within the meaning of § 1332(c). Therefore, § 1332(c) does not operate to divest the federal court of diversity jurisdiction.
Accordingly, it is ORDERED that Flemings' motion to remand this case to the Arapahoe County District Court is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586875/ | 12 S.W.3d 566 (1999)
In re LAVERNIA NURSING FACILITY, INC. d/b/a Country Care Manor.
No. 04-99-00816-CV.
Court of Appeals of Texas, San Antonio.
December 30, 1999.
Rehearing Overruled February 2, 2000.
*568 Delta Sue Best, Allison L. Spruill, Best & Associates, Austin, Raul A. Gonzalez, Locke, Liddell & Sapp, L.L.C., Austin, for Appellant.
Robert B. Thornton, Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, Ray Chester, Waylon L. Allen, Chester & Allen, L.L.P., Austin, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
OPINION
Opinion by: PAUL W. GREEN, Justice.
Relator, LaVernia Nursing Facility, Inc. d/b/a Country Care Manor (Country Care) brings this mandamus action to vacate the trial court's order that Country Care (1) produce personnel documents reflecting disciplinary warnings and/or counseling of its employee, Travis Moorhead, and (2) pay $10,000 in sanctions prior to a final disposition of the case. The trial court found any privileges to producing the documents had been waived. The trial court further found the monetary sanction was justified because of Country Care's misrepresentation to the court and opposing counsel that requested documents had been produced in full.
We deny the petition for writ of mandamus in part with respect to the trial court's order for production of documents and imposition of sanctions. We conditionally grant the petition in part to allow the trial court to modify its order to either declare that the monetary sanction is payable at the conclusion of the lawsuit or make written findings that the payment of sanctions at this time will not deny Country Care access to the court.
Background
Prior to her death, Velma Buchanan was an elderly resident of Country Care nursing facility. Charlotte Alexander brought suit as Buchanan's heir against Country Care, alleging that Buchanan had been sexually assaulted by Travis Moorhead (Moorhead), a sixteen year old, unlicensed nurse aid employed by Country Care. In the course of discovery, Alexander propounded a request for production to Country Care seeking "the complete personnel file of Travis Moorhead."
Country Care objected, among other things, that the request was overbroad and it potentially sought information privileged by certain medical peer review committee privileges. Subject to its objections, Country Care produced what it characterized as the entire personnel file for Moorhead. The file contained no record of disciplinary warnings, counseling, or any other adverse personnel action. Suspicious that the file was not complete, Alexander filed a motion to compel. At a hearing before the Honorable Stella Saxon in April 1999, a number of disputed documents were presented to the trial court for in camera inspection and ruling on privilege. Country Care did not come forward with any documents reflecting disciplinary warnings or counseling records on Travis Moorhead. After the hearing, the following exchange was dictated *569 into the record by plaintiff's counsel and defendant's counsel:
Plaintiff: Let's just do the agreements.
Number eight, the parties have agreed that defendant is representing the entire personnel file of Travis Moorhead has already been produced, is that correct?
Defendant: That is correct. If additional documents surface in the future, which would be privileged, then defendants will comply with the procedures set forth in new civil rule of procedure 193 with respect to filing a [withholding] statement at which time plaintiff's counsel could have a right to request a privilege [log] and we would seek a ruling at that point. But as of this time, the entire personnel file has been produced.
Plaintiff: And if any documents come to light in the future that would be in response of this request, understood that we agree you would either promptly supplement them or
Defendant: Yes, yes.
Plaintiff: promptly follow those procedures, is that right?
Defendant: That's correct.
There is no dispute that Country Care was aware of documents reflecting disciplinary warnings and reprimands to Moorhead at the time its counsel represented the entire personnel file had been produced. Country Care argues, however, only certain records are required by statute to be included in an employee's personnel file and adverse disciplinary documents are not maintained in the "personnel file." Instead, these documents are stamped PRIVILEGED COMMITTEE INFORMATION and are kept under lock and key in a separate file under the auspices of Country Care's Quality Assurance Committee.
During her deposition in August 1999, Sharon Poarch, director of nursing for Country Care, revealed to Alexander for the first time that negative personnel records existed on Travis Moorhead. She could not remember the name of the committee that maintained those documents but she knew they were confidential and were not included in the "personnel file." She stated they were filed in the "confidential privilege committee file." Alexander then filed a Motion to Compel and For Sanctions which was heard by Judge Saxon on September 22, 1999. At the hearing, Julie Hetherington, Country Care's administrator, testified all adverse personnel documents were maintained by the disciplinary subcommittee of Country Care's Quality Assurance Committee. Country Care did not produce the documents for inspection at the hearing.
Judge Saxon did not reach the issue of privilege. She held the documents were properly part of the "personnel file" in spite of the fact they may have been privileged and kept in a separate location. Because Country Care agreed to produce Moorhead's entire personnel file and because the documents were not properly identified, objected to and produced for in camera inspection, any privilege was waived. Judge Saxon particularly noted the existence of the documents had not been revealed and the documents had not been produced for in camera inspection in April when most of the other discovery matters were reviewed and resolved. Judge Saxon then imposed $10,000 in sanctions payable within thirty days of the date of the order.
On September 27, 1999, Country Care finally submitted the disputed documents to Judge Saxon for in camera inspection and once again argued the documents were subject to a privilege that could not be waived by an attorney's conduct. On October 25, 1999, Country Care sent a letter to Judge Joseph H. Hart, who had then been appointed to preside over the remainder of the case, once again asserting its objections to producing the documents and complaining the requirement to pay $10,000 in sanctions while the trial was pending would impede Country Care's ability to *570 defend in the lawsuit. After a hearing on October 26, 1999, Judge Hart adopted Judge Saxon's order in its entirety. Country Care now brings this mandamus seeking to overturn the trial court's order that Country Care produce the documents and pay sanctions.
Standard of Review
To be entitled to mandamus relief, the relator must show the trial court abused its discretion and the relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The trial court abuses its discretion when it fails to properly apply the law to the undisputed facts, when it acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record. Microsoft Corp. v. Manning, 914 S.W.2d 602, 607 (Tex.App.-Texarkana 1995, writ dism'd). In applying the abuse of discretion standard, we defer to the trial court's factual determinations while reviewing its legal determinations de novo. Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.-San Antonio 1996, no writ). When an order requires the disclosure of information exempted from discovery, mandamus is appropriate because remedy by appeal is inadequate. Walker, 827 S.W.2d at 843.
Discussion
A. The request for production
Country Care challenges the production order on two grounds. First, it argues that Alexander never asked for disciplinary records or counseling reports. Second, it argues that these adverse employment records are protected by statutory privilege that cannot be waived by an attorney's misconduct.
(1) The scope of the request
Alexander requested "the complete personnel file." Country Care objects that the request is not specific enough; Alexander should have defined "personnel file" or made a separate request for disciplinary documents. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989). Country Care also claims adverse employee records are not required by statute to be kept in the official personnel file. See 40 TEX. ADMIN. CODE § 19.1920 (requiring personnel records to be accurate and contain sufficient information to support placement of the employee in the particular position). The trial court found disciplinary warnings, counseling reports and other adverse employment actions are ordinarily considered part of the personnel file.
The El Paso Court of Appeals has twice held a "personnel file" includes documentation of an employee's job performance, even if those documents are maintained in a separate location from the rest of the employee's file. See Tri-State Wholesale Associated Grocers, Inc. v. Barrera, 917 S.W.2d 391, 398 (Tex.App.-El Paso 1996, writ dism'd by agr.) (performance record is an item one would reasonably expect to find in personnel file); Director, State Employees Workers' Compensation Division v. Dominguez, 786 S.W.2d 68, 71 (Tex. App.-El Paso 1990, no writ) (supervisor's unfavorable handwritten notes were part of personnel file even though not kept in the official file). The Texas Administrative Code section cited by Country Care does not specify everything that may be kept in a personnel file; rather, it outlines the minimum requirements for that file.
We hold "the personnel file" means every record kept on the employee in question. The entire file may not be kept in the same location and not every document in the file may be discoverable. However, in considering the proper response to a request for production, the trial court properly found Country Care should not be able to effectively hide a portion of the personnel file or employment record by simply naming it something else. If Country Care had revealed the existence of the documents and made the proper objection, the question of privilege *571 would have been properly and timely before the trial court.
(2) Loss of privilege
Country Care argues the disciplinary reports and counseling records are privileged under TEX.REV.CIV. STAT. ANN. art 4495b § 5.06 (Vernon Supp.1999)and TEX. HEALTH & SAFETY CODE ANN. §§ 161.031-.032 (Vernon 1992 & Supp. 1999), and the privilege cannot be waived by the conduct of counsel. We need not reach the issue of privilege to uphold the trial court's decision here.
TEX.R. CIV. P. 215 allows the trial court to impose appropriate sanctions for discovery abuse. "Orders that privileged documents be produced must be an option for discovery abuse, if the court correctly finds the abuse has waived or otherwise invalidated the privilege." Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995). A party who seeks to exclude documents from production has an affirmative duty to plead the applicable privilege and then tender the documents for in camera inspection if necessary. Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635, 637 (Tex. 1985). Failure to comply with this procedure constitutes a waiver of any complaint of the trial court's action.[2]See id.
In this case, the trial court found Country Care did not simply assert a privilege with respect to these documents. Instead, Country Care concealed the existence of the documents and entered into an agreement on the record that dissuaded Alexander from pursuing a motion to compel with respect to Moorhead's employment records.[3] Under these circumstances, the trial court did not abuse its discretion in ordering the documents produced. See id.
B. Monetary sanctions
Country Care challenges the trial court's imposition of $10,000.00 in sanctions payable within thirty days of the trial court's order and prior to final disposition of the lawsuit. Ordinarily, monetary sanctions are not remediable by mandamus. See TEX.R. CIV. P. 215.2(b)(8), 215.3; Braden v. Downey, 811 S.W.2d 922, 928 (Tex. 1991) (adequate remedy by appeal exists for order of discovery sanctions). However, where monetary sanctions threaten the party's willingness or ability to continue the litigation, remedy by appeal is inadequate. Id. at 929. If a litigant contends that a monetary sanction precludes access to the court, the trial court must "either (1) provide that the sanction is payable only at a date that coincides with or follows entry of a final order terminating the litigation; or (2) [make] express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect." Id.
Country Care contends the imposition of a monetary sanction at all is unwarranted because its only action was the good faith assertion of a privilege. In fact, the privilege was not properly asserted and Country Care's failure to follow the procedures available to challenge a discovery request impeded the discovery process. The trial court did not abuse its discretion by ordering monetary sanctions. See TEX.R. CIV. P. 215.2(b), 215.3; Braden, 811 S.W.2d at 929.
*572 Country Care argued to the trial court that the monetary sanction would preclude its ability to defend in the case and asked that the sanction be delayed to the end of the lawsuit, citing Braden v. Downey. Although Alexander urges us to find the penalty would not have such an effect, the trial court should be granted the opportunity to modify its order in accordance with Braden.
Conclusion
We hold the trial court did not abuse its discretion when it ordered the production of documents and the payment of sanctions.[4] However, the trial court should have delayed the payment of sanctions until the termination of the lawsuit or made a written finding that the payment of sanctions would not obstruct Country Care's ability to defend in the lawsuit.
We deny the petition for writ of mandamus with respect to the trial court's order to produce documents and to pay sanctions. We conditionally grant the petition in part to allow the trial court to modify its order in accordance with this opinion. The writ will issue if the trial court fails to modify its order within twenty days of the date of this opinion.
NOTES
[2] Under the new Rules of Civil Procedure, the party asserting privilege may note that it is withholding privileged material and if requested, prepare a privilege log. TEX.R. CIV. P. 193.2, 193.3. The party then has the opportunity to present evidence of the privilege and the court may determine if inspection is necessary. TEX.R. CIV. P. 193.4. Country Care's conduct failed to comply with the procedures for assertion of privilege under either the old rules or the new.
[3] An agreement entered into by counsel and dictated into the record is binding under TEX R. CIV P. 11. Country Care should not be allowed to breach that agreement by contending that it did not agree to produce disciplinary records when it should have been clear to any reasonable person that Alexander was seeking all employment records, not just those that Country Care may have labeled the "personnel file."
[4] We do not read Country Care's brief to contest the amount of sanctions. It only complains about the imposition of any sanctions and the requirement to pay the money before the end of the case. In any event, we need not consider whether the amount of sanctions is appropriate until it is raised on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586890/ | 89 N.W.2d 102 (1958)
FARMERS EDUCATIONAL & COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION, a corporation, Plaintiff and Appellant,
v.
WDAY, Inc., a corporation, Defendant and Respondent.
No. 7710.
Supreme Court of North Dakota.
April 3, 1958.
*104 Quentin N. Burdick, Fargo, for appellant.
Bangert & Bangert, Fargo, for respondent.
Douglas A. Anello, Walter R. Powell, Jr., Walter J. Murphy, Jr., Washington, D. C., amici curiae.
SATHRE, Judge.
The plaintiff is a corporation duly organized and existing under the laws of the State of North Dakota, with a principal office and place of business at Jamestown, North Dakota.
The defendant, WDAY, Inc., is a corporation duly organized and existing under and by virtue of the laws of the State of North Dakota with its office and principal place of business located at Fargo, North Dakota. It is engaged in radio and television broadcasting from its studios at Fargo, North Dakota, under license duly issued by the Federal Communications Commission.
At the general election of North Dakota in 1956 Milton R. Young, Quentin Burdick, and A. C. Townley were duly qualified candidates for the office of United States senator.
Some time prior to October 29, 1956, two of said candidates for the office of U. S. senator, Milton R. Young and Quentin Burdick, made arrangements with the defendant WDAY to use and did use its facilities and equipment for the photographing and recording of political speeches related to the respective candidates which photographic film and recordings through conventional television processes were broadcast by WDAY, the defendant.
Thereafter Townley the third candidate for U. S. Senator from North Dakota requested the same opportunity to use the broadcasting facilities and equipment of the defendant WDAY as had been accorded Milton R. Young and Quentin Burdick and presented to the defendant WDAY a script of the broadcast which he proposed to make over such facilities. WDAY notified Townley that it believed certain statements in the proposed script were false and that if such statements were, in fact false, they were libelous and that it would broadcast the proposed script only if Townley demanded that it be broadcast under the provisions of Section 315 of the Federal Communication Act, the same being Section 315 U.S.Code Annotated, Title 47.
Townley made the demand under said Section 315 and the script was broadcasted through the television and radio equipment of the defendant WDAY. Among other things the script contained the following statements:
"The Farmers Union program fully carried out as planned, not as it is planned by farmer members, but as it is planned by the Farmers Union dictators, would establish a Communist Farmers Union Soviet right here in North Dakota."
"Both men take orders from Communist controlled Democrat Farmers Union and now this amazing factCommunist infiltration and power has gone so far in North Dakota that the Democratic Party supports 100% the Democrat Farmers Union candidate and the Republican Party supports 90% the Democratic Farmers Union candidate. The Communist can't lose unless the Americans wake up and wake up fast."
"Mr. Republican farmer, Republican banker, Republican businessman, do you vote and work Republican with Eisenhower for the Republican farm *105 program and against the Farmers Union Soviet or do you now still walk hand in hand with communist Farmers Union dictators."
Thereafter plaintiff brought this action against the defendants claiming that the contents of the Townley script was libelous per se and that the plaintiff thereby sustained special as well as general damages by reason of the broadcast of said script.
The complaint alleges that on the 29th day of October 1956, in the evening of said day, the defendants intentionally, wilfully, maliciously, knowingly and wrongfully published, reproduced and uttered the said libelous and defamatory statements over the television and broadcasting equipment and facilities of the defendant WDAY through channel 6, at Fargo North Dakota; that the statements so published and broadcasted by the defendants were directed to the plaintiff, and were deliberately designed to and did convey to the thousands of listeners and viewers of the said false and defamatory matter, and visual image of the defendant A. C. Townley that the person or legal entity to whom said statements referred was the plaintiff, and did convey the impression to thousands of listeners and viewers that plaintiff was unpatriotic, guilty of treasonable conduct, violated the constitution and law of the land, and was engaged in illegal and immoral activities, and held the plaintiff up to ridicule, contempt and obloquy, and caused plaintiff to be shunned and injured in its occupation, and said statements so broadcasted were libel and slander per se; that plaintiff has suffered and will suffer special damages on account of loss of membership dues and contributions in the sum of $50,000 and general damages in the sum of $50,000. The defendant A. C. Townley answered admitting making the broadcast complained of, but denied that same constituted libel and slander as against the plaintiff.
The defendant WDAY answered separately and admitted that the Townley script was broadcast through its television and broadcasting facilities; but alleged as a first defense that it was absolved of any liability for any damages under the provisions of Section 14-0209, 1953 Supp. NDRC 1943, which Section is as follows:
"The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee or operator, or agent or employee thereof."
As a second defense it alleged that under the provisions of Section 315 of the Communications Act of 1934, U.S.Code Annotated Chapter 47, it had no power of censorship; that under said statute it was its mandatory duty to publish the script complained of, and that if it should fail to comply with said statute the same would be grounds for the Federal Communication Commission to penalize the defendant by refusing to renew its license; that by reason of the premises and said Section 315 and the regulations thereunder promulgated by the Federal Communication Commission, the defendant was without fault, and entitled to a dismissal of the action. Said Section 315 is as follows:
"If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate."
The plaintiff demurred to the first defense on the grounds that it did not state facts *106 sufficient to constitute a defense, and that the said Section 14-0209 NDRC 1943, 1953 Supp. is unconstitutional, invalid and void in that it violates Sections 9 and 22 of the Constitution of the State of North Dakota.
Plaintiff demurred to the second defense on the grounds that if said Section 315 of the Communications Act is applicable, it does not grant immunity to the defendant WDAY, Inc., from actions for defamation, and if construed as granting immunity, said Act would be unconstitutional and void and in violation of the Fourteenth Amendment to the Constitution of the United States and would contravene the due process clause of said Amendment, and deprive plaintiff of a substantive right to protect its property, including its reputation; that if said Section 315 is applicable, it would be void and unconstitutional under the Fifth Amendment to the Constitution of the United States, and deprive plaintiff of liberty and property and a substantive right without due process of law; and that the answer does not state facts sufficient to constitute a defense.
On the issues thus framed the matter came on for hearing, pursuant to agreement by the parties, in the district court of the first judicial district, at Fargo, North Dakota, before the Honorable John C. Pollock, one of the judges of said district court. After such hearing the court made its order sustaining plaintiff's demurrer to the first defense of the defendant WDAY, but overruled the demurrer to the second defense.
No appearance was made for or on behalf of the defendant A. C. Townley.
Neither the plaintiff nor the defendant elected to plead further. The defendant WDAY, Inc., moved for judgment in its favor for dismissal of the action. The motion was granted and the court made findings of fact, conclusions of law, and ordered judgment in favor of the defendant WDAY for dismissal of the action. Judgment was entered accordingly. The plaintiff appealed from the judgment and demanded a trial de novo in this court.
In its order sustaining the demurrer to the first defense of the defendant WDAY the court held that Section 14-0209, 1953 Supp. NDRC 1943, was unconstitutional and void under Sections 9, 11 and 22 of the Constitution of the State of North Dakota. The defendant WDAY takes no exception to that part of the order, and therefore the question as to the constitutionality of Section 14-0209, NDRC 1943, is not before us on this appeal.
It is conceded by the defendant WDAY that the language in the Townley speech complained of by plaintiff is libelous per se; but it claims immunity under Section 315 of the Federal Communications Act. It is contended that in the matter of the Application of Port Huron Broadcasting Co. Docket No. 6987, 1948, (4RR1) the Federal Communication Commission expressed the opinion that Section 315 relieved broadcasters from liability for defamation and that such opinion had the force of law. The proviso in Section 315 prohibits censorship of the material to be broadcast in the following language:
"Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section."
In the Port Huron case it appears that the Broadcasting Company had adopted a policy of selling time to the various candidates for political office and had arranged to broadcast a series of talks by three candidates. But after the station management had examined the script of one of such candidates and had discovered the allegedly libelous nature of the script, broadcast thereof was refused. The Communication Commission held that suppression of the speech was a complete exercise of censorship in violation of the provisions of Section 315.
We quote the following excerpts from the text of the opinion of Communication Commission in the Port Huron case:
*107 "For as we read the provisions of Section 315, the prohibition contained therein against censorship in connection with political broadcasts appear clearly to constitute an occupation of the field by federal authority, which, under the law, would relieve the licensee of responsibility for any libelous matter broadcast in the course of a speech coming within Section 315 irrespective of the provisions of state law."
"Accordingly we are of the opinion that the prohibition of Section 315 against any censorship of licensees of political speeches by candidates for office is absolute, and no exception exists in the case of material which is either libelous or might tend to involve the station in an action for damages."
"In reaching this conclusion, however, we hold merely that censorship prohibited under Section 315 of the Communications Act includes the refusal to broadcast a speech or part of a speech by a candidate for public office because of the allegedly libelous or slanderous content of the speech. Nothing in this opinion is intended to indicate that a licensee is necessarily without power to prevent the broadcast of statements or utterances in violation of the provisions of the Communications Act or any other federal law on broadcasts coming within the requirements of Section 315 of the Communications Act."
From the opinion of the Commission quoted above it is clear that the Commission has taken the view that under Section 315 radio and television stations are obligated to offer equal opportunities to all candidates for public office to make use of their facilities without censorship. The Commission further contends that Congress has taken over the field in connection with responsibility for libelous matter as fully as it has with respect to responsibility of telegraph companies in transmitting interstate messages to the exclusion of local or state interference. Section 301, Subchapter III, Provisions relating to Radio, U.S.C.A. Title 47 provides:
"It is the purpose of this chapter, among other things, to maintain the control of the United States over the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license." * * *
The case of Allen B. Dumont Laboratories v. Carroll, 3 Cir., 1950, 184 F.2d 153, 154, had under consideration a Pennsylvania statute, 4 P.S. Sec. 41-58, under which the Board of Censors of the state had promulgated a regulation authorizing it to censor films used by plaintiffs in projecting television programs in the State of Pennsylvania. The court below found that the regulation was in conflict with federal authority in a field fully occupied by Congress when it enacted the Radio Act of 1927, 44 Stat. 1162, and the Communications Act of 1934, 47 U.S.C.A. § 151 et seq., and found the regulation invalid. It was found that the television programs broadcast by the plaintiffs were received by persons having television sets not only in Pennsylvania but also in the State of Delaware, Maryland, New Jersey and other states. The Circuit Court of Appeals affirmed the district court and held that:
"There is no doubt but that television broadcasting is in interstate commerce. This is inherent in its very nature. * * *
"The Communications Act of 1934 applies to every phase of television and it is clear that Congress intended the regulatory scheme set out by it therein to be exclusive of State action. See Section 301, 47 U.S.C.A § 301, which *108 recites the purpose of the Act as inter alia, the maintenance of `* * * the control of the United States over all the channels of interstate and foreign radio transmission * * *'".
The opinion concludes: "We think it is clear that Congress has occupied fully the field of television regulation and that that field is no longer open to the States. Congress possessed the constitutional authority to effect this result. Hines v. Davidowitz, 312 U.S. 52, 74, 61 S. Ct. 399, 85 L. Ed. 581. It follows that the Commonwealth of Pennsylvania cannot censor the films used on the programs of plaintiff's station."
In the case of Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S. Ct. 172, 173, 87 L. Ed. 165, the Supreme Court of the United States said:
"It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. * * *
"When a federal statute condemns an act as unlawful the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted. To the federal statute and policy, conflicting state law and policy must yield. * * *
"The federal courts have been consistent in holding that local rules of estoppel will not be permitted to thwart the purposes of statutes of the United States."
See also Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 53 S. Ct. 627, 77 L. Ed. 1166.
It appears clear therefore under Section 301, supra, of the Radio Act and the decisions in the cases cited that the Congress has taken full control of interstate radio and television communication.
The question presented in the instant case is whether under Section 315, supra, the defendant WDAY is immune from damages for broadcasting the libelous matter contained in the speech of A. C. Townley. Said statute provides that where a licensed radio station has permitted a candidate for political office to use its facilities it must afford equal opportunities to all candidates for the same office; but "such licensee shall have no power of censorship over the material broadcast under the provisions of this section". If WDAY is immune from liability such immunity is a privilege granted by section 315, and is either an absolute privilege or a qualified privilege. 53 C.J.S. Libel and Slander § 88, page 143, defines Absolute Privilege as follows:
"An absolutely privileged communication is one for which, by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action for slander or libel. It is well settled that the law recognizes this class of communications which is so absolutely privileged that even the existence of express malice does not destroy the privilege, although there are some dicta denying the rule; and some eminent judges, in dealing with particular applications of the rule, have doubted or questioned the rationale or principle of absolutely privileged communications. As to absolutely privileged communications, a civil action for libel or slander is absolutely barred."
In the same volume, § 89, pages 143, 144, 145, qualified privilege is defined as follows:
"Qualified privilege exists in a larger number of cases than does absolute privilege. It relates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has *109 an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty. Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice, and as to such communications there is no civil liability, regardless of whether or not the communication is libelous per se or libelous per quod."
In § 90, page 146, same volume it is stated:
"A communication must be published in connection with, and relevant and germane to, some matter involving the interest or duty. Notwithstanding the existence of a privileged occasion between the parties to a communication, an irrelevant defamatory statement concerning a third person having no connection whatever with the occasion is not privileged; but where a defamatory charge against a third person is inseparably connected with a privileged communication concerning another it will be protected by the privilege."
There is no ambiguity in Section 315, supra. It provides in clear and specific language that where candidates for political office are permitted to use the facilities of a station such station "shall have no power of censorship." There are certain exceptions "and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S. Ct. 725, 730, 96 L. Ed. 919.
In the instant case the defendant WDAY was required by Section 315 to permit the broadcast of the Townley speech. Power to censor the speech was denied by the clear and specific language of Section 315. We cannot believe that it was the intent of Congress to compel a station to broadcast libelous statements and at the same time subject it to the risk of defending actions for damages.
The defendant WDAY took the precaution to advise the speaker that if certain statements in the speech were false they were libelous, and unless the speaker would make a demand under Section 315, his speech would not be broadcast over defendant's facilities. The speech was broadcast only after such demand was made by the speaker.
The plaintiff objected specifically to the following and similar statements in the Townley speech as charging it with being a communistic organization:
"Both men (Young and Burdick) take orders from the Communist controlled Democrat Farmers Union."
The reference to "Communist controlled Democrat Farmers Union" is in context with the criticism by the speaker of his two opponents. The speaker was discussing the qualification of candidates and campaign issues in which the voting public was interested. As was said in the case of Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440, at page 445:
"Any political campaign is a process of debate and appeal publicly conducted in a way to bring knowledge to the voters to assist them in making a choice on election day. It is a time honored American institution indispensable in our way of life. Courts must be careful not to permit the law of libel and slander to encroach unwarrantably upon the field of free public debate."
*110 When Congress enacted Section 315 it recognized the convenience and necessity of the general public and its right to information relative to political issues, the qualifications of candidates for public office, and their attitude on questions of grave importance affecting the general welfare of the state and nation.
It cannot reasonably be argued with any convincing force that the election of a United States Senator is not of vital importance under our form of government. The voters are entitled to all available information as to the character and qualification of candidates for the office. Under Section 315, supra, Congress has prescribed the conditions and limitations under which broadcasting stations may permit their facilities to be used by candidates for political office. Where candidates are permitted to use the facilities of the stations, censorship by the stations of the speeches broadcast is prohibited.
Communism is a subject that is being discussed both privately and publicly by Americans and by the people of other countries. The reference to that subject in the speech challenged by the plaintiff could do no more than to put the electorate on inquiry as to the attitude of the candidates for the United States Senate toward communism. So far as the defendant WDAY is concerned it was under compulsion to publish the speech by direct mandate of a federal statute. It had no choice other than to broadcast the speech. If the speech was libelous the plaintiff had its recourse and remedy against the author of the speech who delivered it through the facilities of the defendant WDAY.
The plaintiff contends that if said Section 315 is held to grant immunity to the defendant WDAY it would be unconstitutional and in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. To this we cannot agree. Section 315 imposes a mandatory duty upon broadcasting stations to permit all candidates for the same office to use their facilities if they have permitted one candidate to use them. Since power of censorship of political broadcasts is prohibited it must follow as a corollary that the mandate prohibiting censorship includes the privilege of immunity from liability for defamatory statements made by the speakers. In fact the maxim "res ipsa loquitur" applies to the situation presented here. There is no provision in the Fifth and Fourteenth Amendments to the Constitution which prohibits Congress from either granting or denying a privilege. As we have pointed out elsewhere in the opinion, the manifest purpose of Congress in enacting Section 315 was to afford full opportunity to candidates for political office to give to the electorate and the public generally facts relative to their qualifications and fitness for the office to which they aspire.
The judgment of the district court is accordingly affirmed.
GRIMSON, C. J., and JOHNSON and BURKE, JJ., concur.
MORRIS, Judge (dissenting).
Radio and television broadcasting falls within the scope of federal regulatory power derived from the commerce clause of the United States Constitution, art. 1, § 8, cl. 3. Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266, 53 S. Ct. 627, 77 L. Ed. 1166. It also seems that liability for libel in connection with broadcast or telecast transmissions also falls within the scope of that power. O'Brien v. Western Union Telegraph Co., 1 Cir., 113 F.2d 539. Congress, by Section 315 of the Federal Communications Act of 1934, has undertaken to regulate the use of broadcasting facilities by candidates for public office and prohibit to licensees the exercise of the power of censorship over material broadcast within the provisions of that section. The extent of that regulation and its legal consequences are matters to be determined under federal statutes in accordance with federal policy insofar as *111 that policy has been established. Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S. Ct. 172, 87 L. Ed. 165.
To the extent that Section 315 deprives a licensee of the power of censorship over the material broadcast it insulates the licensee against liability for defamation. This is a corollary to the proviso of Section 315 because Congress has by the Communications Act undertaken to protect as well as regulate radio and television stations in the public interest. Therefore the power of censorship provided by Congress must be evaluated and construed in the light of both the public purpose sought to be served and the age-old right of the individual to a reputation undefamed. I find a somewhat analogous situation with respect to Article I of the Amendments to the Constitution of the United States prohibiting the abridgment of freedom of speech. Even that freedom must yield to civilized society's inherent prohibitions of blasphemy, indecency and defamation. Thus words that seem unqualified must sometimes yield to qualification.
"Power of censorship" that Section 315 prohibits is the power to deny or forbid the publication in advance or to refuse to make available facilities of the licensee for such publication. Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153. Despite the positive wording of the statute this prohibition cannot under all circumstances be absolute. I do not attribute to Congress an intention to deny the right of censorship to the extent of compelling the licensee to make available to a candidate for public office its facilities for the broadcasting of obscenity or blasphemy. It follows that to the extent that censorship is not absolute, privilege under the law of libel is not absolute. Once that it is conceded that the prohibition of censorship is not absolute despite its positive language we are faced with the problem of construction that involves a determination of the intention of Congress.
A number of states have by their constitutions placed reputation within the protecting mantle of the Bill of Rights. Byers v. Meridian Printing Co., 84 Ohio St. 408, 95 N.E. 917, 38 L.R.A.,N.S., 913; Osborn v. Leach, 135 N.C. 628, 47 S.E. 811, 66 L.R.A. 648; Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041, 64 L.R.A. 790, 104 Am. St. Rep. 422. See also Neafie v. Hoboken Printing & Publishing Co., 75 N.J.L. 564, 68 A. 146.
"As a part of the right of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection." Kent's Commentaries, 14th Ed. (Gould) Vol. II, p. 23.
An intention to leave all reputations at the mercy of even a limited class of defamers should not be lightly ascribed. On the other hand justice to the individual may sometimes be forced to yield to the public good. In this instance, however, Congress in enacting Section 315 was not faced with a Hobson's choice and in construing that section neither are we.
When a person becomes a candidate for a public office he submits himself to a limited privilege on behalf of those who would comment on his fitness for office. Nevada State Journal Publishing Co. v. Henderson, 9 Cir., 294 F. 60; 33 Am.Jur., Libel and Slander, Section 169, 53 C.J.S. Libel and Slander§ 134 b. This rule springs from the fact that when a person becomes a candidate for public office his reputation for honesty and integrity as well as his qualifications and fitness for the position become matters of public interest. Radio and television licensees are mediums for the broad distribution of information. I have no difficulty in concluding that Congress by the enactment of Section 315 prohibited censorship of the material broadcast under the provisions of that section on the ground that it was defamatory of a candidate for the same office who had previously *112 been permitted to use the broadcasting station. Perhaps Congress intended to go so far as to prohibit censorship of the broadcast of matter defamatory of any candidate for the same office. But what of the innocent bystander ?
The innocent bystander may stand in one of two categories depending on the relationship if any between the defamatory matter and the rest of the broadcast. A defamatory statement may be a digression from the political theme and have no connection with any opposing candidate. Surely Congress did not intend that a candidate broadcasting under the protection of Section 315 might charge his neighbor, John Doe, with being a thief out of context and with no relation to the campaign or to opposing candidates, free of any right of the licensee to censor the defamatory statement and consequently without recourse against the disseminator on the part of the person so defamed. To that extent at least the prohibition against censorship must yield. In a second and slightly different category stands the innocent bystander whose defamation is in context and is connected by words of the broadcast with an opposing candidate. An illustration would be where a candidate is broadcasting under the provisions of Section 315 and accuses an opposing candidate of associating with thieves, one of whom is neighbor John Doe. Here again the neighbor is defamed but the defamation is by context connected with the candidate as well. This case falls within the general purview of the second illustration. The defamatory accusation that the plaintiff is Communist-controlled is connected by context with the two candidates opposing A. C. Townley, whose speech was telecast after being filmed, recorded and viewed by the employees of the defendant, WDAY, Inc. The plaintiff is an innocent third party whose reputation has been defamed under the claimed protection of the prohibition against censorship contained in Section 315. It does not appear that the public interest would be served by making the reputations of innocent third parties subject to destruction without recourse to the disseminator by an irresponsible candidate for public office broadcasting under the aegis of Section 315 or that Congress intended licensees to be rendered powerless to prevent such a result.
I am not impressed by the argument that because Townley was the primary source of the defamatory material and the licensee was merely the agency of transmission or publication Congress felt that recourse to the author afforded sufficient relief. This argument ignores the fact that defamation acquires its devastating effect through dissemination rather than authorship and that under the law of libel damages are awarded not for the utterance but for the effect.
My conclusion is that Section 315 does not afford the defendant, WDAY, Inc., a defense in law and that the trial court erred in overruling the demurrer to the second defense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587201/ | 783 N.W.2d 749 (2010)
280 Neb. 11
STATE of Nebraska, appellee,
v.
Terrell T. THORPE, appellant.
No. S-09-442.
Supreme Court of Nebraska.
June 18, 2010.
*754 Andrew J. Wilson, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
I. SUMMARY
After a jury trial, the State convicted Terrell T. Thorpe of two counts of first degree murder and two counts of use of a weapon to commit a felony. The court sentenced him to life imprisonment without parole on each of the murder counts and to 30 to 40 years' imprisonment and 40 to 50 years' imprisonment on the use of a weapon counts. He appeals his convictions and sentences. We affirm his convictions on the murder charges and the convictions and sentences on the weapons charges. But we conclude that the life without parole sentences are invalid. We vacate the life without parole sentences and remand to the district court to sentence Thorpe to life sentences.
II. ASSIGNMENTS OF ERROR
Thorpe assigns three errors: (1) The court erred in failing to find that the State's use of a peremptory challenge to exclude juror No. 31 violated his right to equal protection; (2) the court erred in overruling his motion for mistrial based on the improper contact between a witness and a juror; and (3) the court erred in giving instruction No. 14 regarding conscious guilt.
III. BACKGROUND
The underlying facts are substantially similar to those addressed by this court in State v. Sellers,[1] which addressed an accomplice's appeal. Summarized, the facts are that on two separate occasions, Taiana Matheny lured a young male to a remote *755 location, and then Terry Sellers and Thorpe beat, robbed, and murdered him. Thorpe's appeal focuses on three events that occurred during his trial, and so we will set out additional facts to separately address these issues.
IV. ANALYSIS
1. BATSON CHALLENGE DURING JURY SELECTION
Thorpe argues that the State exercised a peremptory challenge to remove juror No. 31 solely because of her race. The Equal Protection Clause of the 14th Amendment forbids prosecutors from using peremptory challenges for this reason.[2]
(a) Additional Facts
During voir dire, the prosecutor asked, "[I]f the State proves beyond a reasonable doubt that . . . Thorpe is guilty of these charges, is there anyone here that would not be able to vote guilty?" Juror No. 31 answered:
Just with the evidence that they're saying, I still would have a problem. `Cause how do I know it's real, you know? . . . And if he's saying he didn't do it, how do I even know he's telling the truth? But I wouldn't just say, oh, yeah, he did it, you know.
The prosecutor then explained that the jurors were to decide whether, based upon what they saw and heard in the courtroom, the State had proved guilt beyond a reasonable doubt. Juror No. 31 responded:
Because I have a problem with that, with the reasonable doubt. If you're not sure yourselves, how would you be able to say, yeah, you did it? I mean, that's mymy thinking.
The reasonable doubt, um, well, it says at this time you blah, blah, blah or this time blah, blah, blah. But we didn't see at that time, but we're saying all evidence shows it, and that's what I have a problem with.
When the prosecutor explained that a "beyond a reasonable doubt" standard was the standard applied in every criminal case in America, juror No. 31 interrupted:
Well, I have the same feelingsyou know, I have the same feelings with all of it. If I didn't see youlike I'm at home with my children and I don't see it. This one is saying that and this one is sayingthe older people are like, whoop `em all and you get the right one.
Well, now they're all bigger and so I can't do it like that. Sometimes I let it go because we're bickering and arguing and I don't know who did it. But that happens in my life a lot. So like I said, I couldn't just say, okay, what so-and-so is saying, I'll go with that.
When the prosecutor responded that "[i]t sounds to me like what you're saying is that you put that burden of proof pretty high," juror No. 31 answered, "Yes, I do."
Ultimately, the State exercised one of its peremptory strikes on juror No. 31. Thorpe objected, arguing that the strike violated the principles of Batson v. Kentucky.[3] In response, the prosecutor noted that of the 38 total jurors struck by the State and the defense, 4 were African-American. The prosecutor further noted that of those four, two were stricken by the defense, one by the court, and only one, juror No. 31, by the State. When asked by the court why it struck juror No. 31, the prosecutor responded:
*756 The same reason the State struck . . . Juror No. 23. Both [juror No. 31] and [juror No. 23], in describing their interpretation of beyond a reasonable doubt, they both said that they gave it a very high standard, higher than I believe what the law requires.
[Juror No. 31], in fact, I believe said that she would have a difficult time finding someone guilty if she didn't actually see them do it herself. That would be the State's reason . . . .
The prosecutor then clarified that the specific statement made by juror No. 31 that concerned him was, "How would I know he did it if I didn't see him do it." The prosecutor also noted that he was concerned because juror No. 31 had stated that the prosecutors "don't even know whether he did it, and now we have to decide." The prosecutor explained that another reason for the strike was that juror No. 31's comments left the "impression that she didn't believe the State believed . . . Thorpe was guilty." The court overruled the Batson challenge.
(b) Standard of Review
The evaluation of whether a party has used peremptory challenges in a racially discriminatory manner is a three-step process.[4] First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor has exercised peremptory challenges because of race.[5] Second, if the defendant makes the requisite showing, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question.[6] Third, the trial court then determines whether the defendant has carried his or her burden of proving purposeful discrimination.[7] The third step requires the court to evaluate the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.[8]
In several cases, we have stated that the adequacy of a party's neutral explanation of its peremptory challenges is a factual determination.[9] But this standard has confused the facial validity of an attorney's proffered explanation with its persuasiveness. In Hernandez v. New York,[10] the U.S. Supreme Court's plurality opinion stated that "[i]n evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." And it further stated, "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."[11]
But the facial validity of an attorney's explanation is different from its persuasiveness. Persuasiveness is relevant to the final step in the analysiswhether the *757 defendant has satisfied his or her burden of proving purposeful discrimination. It is the final step in the analysis, in which the court must decide whether an attorney's explanation is persuasive, that presents a question of fact. In other words, whether an attorney's race-neutral explanation for a peremptory challenge should be believed presents a question of fact.[12]
So we now correct our standard of review to be more consistent with the U.S. Supreme Court's precedent. For Batson challenges, we will review de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. And we will review for clear error a trial court's factual determinations whether an attorney's race-neutral explanation is persuasive and whether his or her use of a peremptory challenge was purposefully discriminatory.
(c) Resolution
The trial court, without specifically finding that Thorpe had made a prima facie case, asked the State to tender a race-neutral explanation for the strike, and the State complied. Then under the third step, the trial court evaluated the persuasiveness of that explanation in determining whether Thorpe carried his burden of proving a racial motivation for the strike. Under this circumstance, whether Thorpe made a prima facie showing of purposeful discrimination is moot.[13] We consider only whether the prosecutor offered an adequate race-neutral explanation for the strike and whether the trial court's final determination regarding purposeful discrimination was clearly erroneous.[14]
Although the prosecutor must present a comprehensible reason, the second step of the analysis does not demand an explanation that is persuasive, or even plausible; it is sufficient if the reason is not inherently discriminatory.[15] As examples, we have determined the State's explanations for a strike to be race neutral in the following circumstances: (1) when a prospective juror's residence was close to the crime scene,[16] (2) when a prospective juror had a close family member who was a convicted felon,[17] (3) when a prospective juror was employed at a church,[18] and (4) when a prospective juror was young and single and might be attracted to the defendant.[19] In contrast, when reviewing a gender discrimination challenge, we held that the State's use of peremptory strikes on six males was not supported by a gender-neutral reason when the State explained that its purpose was to achieve gender balance on the jury.[20]
These cases illustrate that only inherently discriminatory explanations are facially invalid. We conclude that the State's articulated reasons for striking juror No. 31 were clearly race neutral because they had no relationship to her race.
But Thorpe argues that even if the articulated reasons were race neutral, the trial court nevertheless erred in its evaluation of the persuasiveness of the reasons *758 offered by the State. Specifically, he argues that the State's reasons for striking juror No. 31 are unpersuasive because they were based on "nothing more than misinterpretation of comments" made by that juror.[21] We disagree.
A review of the record quickly shows that the State's articulated reasons for striking juror No. 31 were persuasive. Any prosecutor who could fog a mirror would have been concerned about juror No. 31's confusing beliefs about the proof necessary to satisfy the "beyond a reasonable doubt" standard. She was in effect saying that neither she nor the prosecutor could know that Thorpe committed the crimes charged because neither of them had witnessed the act.
Also, nothing in the record shows that the explanation was pretextual. In determining whether a defendant has established purposeful discrimination in the use of a peremptory challenge, a trial court may consider whether the prosecutor's criterion has a disproportionate impact on a particular race. If so, the court may consider whether such evidence shows the prosecutor's proffered explanation was pretextual.[22]
In determining whether there is a sufficient pattern of peremptory strikes to support an inference of discrimination, we have recognized the following factors as relevant: (1) whether members of the relevant racial or ethnic group served unchallenged on the jury and whether the striking party struck as many of the relevant racial or ethnic group from the venire as it could; (2) whether there is a substantial disparity between the percentage of a particular race or ethnicity struck and the percentage of its representation in the venire; and (3) whether there is a substantial disparity between the percentage of a particular race or ethnicity struck and the percentage of its representation on the jury.[23] Although we lack information in the record to examine all of those factors, the record does show that of the 38 jurors struck by the parties, 4 were African-American. It also shows that of those four jurors, two jurors were struck by Thorpe, one juror was struck by the court, and only one juror was struck by the State. The State's use of a peremptory strike on only one of four African-American jurors who were struck further supported an inference that the State's use of its peremptory challenge on juror No. 31 was not purposeful discrimination.
We conclude that the trial court did not clearly err in determining that Thorpe failed to carry his burden of proving purposeful discrimination.
2. JUROR MISCONDUCT
Thorpe asserts that the trial court erred when it overruled his motion for mistrial based on improper communications between a witness, Omaha Police Lt. Michele Bang, and a juror.
(a) Additional Facts
In its case in chief, the State called Bang, who oversaw the general investigation. She testified about the cellular telephone calls that were made and received between Sellers, Matheny, and Thorpe at or around the time of the crimes.
Bang's direct testimony was interrupted by a break for lunch. As Bang left for the break, a juror stepped on the elevator with her. The juror asked if she was a relative of "Shelly" Bang, and Bang informed him that that was her nickname and that she was Shelly Bang. The juror then told Bang that one of his daughters went to school *759 with her, and Bang remembered that his daughter's name was Diane and that they had gone to high school together. Bang stated that the juror "smiled because I remembered his daughter was Diane," but that the conversation ended after that and they both got off the elevator. The juror testified that the conversation occurred in substantially the same way. When the court asked whether his conversation with Bang would affect him in any way or prevent him from being a fair and impartial juror, the juror responded, "No. What difference would it make?"
After the in-chambers testimony from Bang and the juror, Thorpe moved for a mistrial. The court overruled the motion, finding that the communication was a "very innocent conversation" and that it did not affect the juror's ability to be fair and impartial.
(b) Standard of Review
We will not disturb a trial court's decision whether to grant a motion for mistrial unless the court has abused its discretion.[24] An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.[25]
(c) Resolution
A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial.[26] In a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.[27] Extraneous material or information considered by a jury can be prejudicial without proof of actual prejudice if (1) the material or information relates to an issue submitted to the jury and (2) there is a reasonable possibility that it affected the jury's verdict to the challenger's prejudice.[28] Whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror.[29]
We have not applied a consistent standard for reviewing a trial court's determination of the effect extraneous information would have on an average juror. In recent direct appeals and postconviction appeals, we have clearly reviewed this determination de novo.[30] But in at least one postconviction decision, we explicitly stated that we were reviewing the district court's determination on this issue under a "clearly erroneous" standard.[31] That is the general standard for reviewing a postconviction court's factual findings. But a review of that case shows that we independently determined that under all the circumstances, there was not a reasonable possibility that communications between a nonjuror and jurors would have affected the jury's verdict. Because of that determination, we concluded that the district *760 court was not clearly erroneous in determining that the juror misconduct did not prejudice the defendant.[32]
These cases illustrate that we have not reviewed determinations of prejudice from juror misconduct only for clear error. So we agree with courts that have held that whether a defendant was prejudiced by juror misconduct presents a mixed question of law and fact because it involves legal conclusions about a defendant's right to an impartial jury.[33] We conclude that when a defendant moves for a mistrial based on juror misconduct, we will review the trial court's determinations of witness credibility and historical fact for clear error; we review de novo the trial court's ultimate determination whether the defendant was prejudiced by juror misconduct.
The record before us clearly shows that an improper communication occurred between a juror and the witness Bang. Because the misconduct involved a juror and a nonjuror, it gives rise to a rebuttable presumption of prejudice to Thorpe which the State has the burden to overcome.[34]
Here, the communication was made during the State's case in chief when evidence was still being presented. But the communication was unrelated to any issue before the jury. The communication was to one juror only, and that juror did not share that communication with the remaining members of the jury. And when asked whether the communication would affect his ability to remain impartial, the juror stated, "No. What difference would it make?"
Under our de novo review, we conclude that the dialog between Bang and the juror on the elevator amounted to mere exchanges of pleasantries. Because the dialog was not related in any way to the issues at trial, we conclude that it would not have affected the average juror's ability to remain impartial. The trial court correctly denied Thorpe's motion for mistrial.
3. JURY INSTRUCTION ON CONSCIOUS GUILT
Thorpe contends that the trial court erred in giving instruction No. 14. The trial court gave this instruction in response to the State's evidence that Thorpe had attempted to intimidate a witness.
(a) Additional Facts
Following a plea agreement, Matheny testified for the State. During her direct examination, she stated that in August 2008, she was being transferred to a holding cell in the county jail when she encountered Thorpe. The two made eye contact, and Thorpe said, "Don't come to court." Another female inmate overhead the conversation and confirmed that Thorpe told Matheny "not to testify." This inmate testified that she could tell Matheny and Thorpe knew each other from how their demeanors changed when they saw each other. The inmate thought that Thorpe looked "threatening" when he saw Matheny and that Matheny looked scared when she saw Thorpe. The inmate testified that after Thorpe made the statement, Matheny got very quiet and "looked pretty upset. Maybe scared."
During the State's case in chief, Thorpe moved to strike the testimony, arguing that it was not sufficient to show that *761 Thorpe threatened or intimidated Matheny. The court deferred ruling on the motion to strike until the jury instruction conference.
At that conference, the court proposed jury instruction No. 14 regarding conscious guilt. It provided:
You have heard evidence regarding the Defendant's alleged attempt to prevent a State's witness from testifying in this case. A Defendant's attempted intimidation or intimidation of a State's witness may be evidence of the Defendant's "conscious guilt" that a crime has been committed and serves as a basis for an inference that the Defendant is guilty of the crimes charged. Such evidence may be considered by you in determining whether the State has proved the elements of each of the crimes charged beyond a reasonable doubt.
Thorpe objected to the instruction, arguing that it should not be included because the evidence failed to show an inference of guilt. He then renewed his motion to strike the testimony of Matheny and the female inmate. The court overruled Thorpe's request. Thorpe then noted that he did not have any additions or corrections to the instruction as it was proposed.
(b) Standard of Review
Whether a jury instruction is correct is a question of law.[35] When reviewing questions of law, we resolve the questions independently of the lower court's conclusions.[36]
(c) Resolution
Evidence of a defendant's attempted intimidation or intimidation of a State's witness is relevant evidence of the defendant's "conscious guilt" that a crime has been committed. Also, it can serve as a basis for an inference that the defendant is guilty of the crime charged.[37] Thorpe does not quibble with this general proposition, but instead contends that the testimony does not sufficiently establish that he either attempted to intimidate or intimidated Matheny. So, he argues that the testimony fails to support an inference of his conscious guilt.
We addressed a similar argument in State v. Freeman.[38] The State convicted William Freeman of sexually assaulting a college student after a party. A male witness who danced with the victim at the party testified that about 1 year after the party, he and Freeman talked at an Omaha bar. During the conversation, Freeman indicated that the police had contacted him about the assault. Freeman then asked the witness if he had kissed the victim on the night of the party. When the witness stated that he had not, Freeman then said either "`"Well, it would help me out if you did"'" or "`"It would have helped me out if you did."'"[39] We held that the State could not admit this evidence to demonstrate that Freeman attempted to intimidate the witness, because it was unclear what Freeman actually said and Freeman took no other steps to try to influence the witness' testimony.
But unlike the testimony in Freeman, here the record is clear as to the words used by Thorpe, and equally clear that those words were an attempt by him to discourage Matheny from testifying against him at his trial. Also, the testimony *762 indicates both that Thorpe looked "threatening" when he spoke to Matheny and that she looked upset or scared after he spoke to her. Contrary to Thorpe's argument, this evidence sufficiently supports an inference that Thorpe was conscious of his guilt and sought to intimidate Matheny so that she would not testify against him. The district court did not err in giving instruction No. 14.
4. LIFE WITHOUT PAROLE
Although Thorpe does not assign or argue the issue, there is plain error regarding his two sentences of life without parole for the murders. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.[40]
The Legislature has set forth the penalties for various felony classes in Neb.Rev. Stat. § 28-105 (Reissue 2008). Before a 2002 amendment, the penalty for first degree murder, a Class IA felony, was "[l]ife imprisonment."[41] The 2002 amendment changed that penalty to "[l]ife imprisonment without parole."[42] But we held in State v. Conover[43] that the 2002 amendment was unconstitutional because it exceeded the scope of the proclamation that called the Legislature into special session. We held in Conover that a sentence of life imprisonment without parole was not statutorily mandated, and because it was erroneous but not void, we remanded with directions to resentence the defendant to life imprisonment on his murder convictions.
In State v. Gunther[44] the defendant argued that under our holding in Conover, his sentence of life imprisonment without parole was erroneous but not void and sought remand for imposition of a sentence of life imprisonment. The State conceded this error, and we remanded for the imposition of a sentence of life imprisonment. And in State v. Robinson,[45] a defendant was sentenced to life imprisonment without parole even though the murder he committed occurred before the 2002 amendment to § 28-105. On plain error review, we found this sentence to be erroneous but not void, and remanded for imposition of a sentence of life imprisonment.
We conclude that allowing Thorpe's sentences of "[l]ife imprisonment without parole" to stand would result in damage to the judicial process because the 2002 amendment to § 28-105 was "stricken" by this court's decision in Conover. The Legislature has taken no action to amend § 28-105 or otherwise redefine the penalty for first degree murder since our decision in Conover. Because a sentence of "life imprisonment without parole" is not a valid sentence for first degree murder in Nebraska, we remand with directions that the district court resentence Thorpe to "life imprisonment" on his murder convictions.
*763 V. CONCLUSION
Thorpe's assignments of error lack merit. But plain error exists in the sentences imposed for his murder convictions. We affirm the convictions and sentences on the weapons charges. We affirm the murder convictions but vacate the sentences on the murder charges. We remand with directions that the district court sentence Thorpe to life imprisonment on both murder charges.
AFFIRMED IN PART, AND IN PART REMANDED WITH DIRECTIONS.
NOTES
[1] State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
[2] Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
[3] Batson, supra note 2.
[4] See, Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006); Gutierrez, supra note 2.
[5] See Gutierrez, supra note 2.
[6] See id.
[7] See id.
[8] Id.
[9] See, e.g., Gutierrez, supra note 2; State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006); State v. Lowe, 267 Neb. 782, 677 N.W.2d 178 (2004).
[10] Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (emphasis supplied).
[11] Id., 500 U.S. at 360, 111 S.Ct. 1859.
[12] See Hernandez, supra note 10. See, also, McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005); Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999).
[13] See Gutierrez, supra note 2.
[14] See Hernandez, supra note 10.
[15] See id.
[16] Robinson, supra note 9.
[17] State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
[18] Id.
[19] State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
[20] Lowe, supra note 9.
[21] Brief for appellant at 12.
[22] See Hernandez, supra note 10.
[23] See Gutierrez, supra note 2, citing U.S. v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005).
[24] See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
[25] Id.
[26] Floyd, supra note 9; State v. Harrison, 264 Neb. 727, 651 N.W.2d 571 (2002).
[27] Id.
[28] See Harrison, supra note 26.
[29] Id.
[30] See, e.g., Floyd, supra note 9; State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997).
[31] See Harrison, supra note 26, 264 Neb. at 737, 651 N.W.2d at 580.
[32] See id. See, also, Williams, supra note 30.
[33] See, Vigil v. Zavaras, 298 F.3d 935 (10th Cir.2002); Loliscio v. Goord, 263 F.3d 178 (2d Cir.2001); Sassounian v. Roe, 230 F.3d 1097 (9th Cir.2000); U.S. v. Cheek, 94 F.3d 136 (4th Cir. 1996); People v. Avila, 46 Cal.4th 680, 208 P.3d 634, 94 Cal.Rptr.3d 699 (2009); People v. Wadle, 77 P.3d 764 (Colo.App.2003); Zana v. State, 216 P.3d 244 (Nev.2009).
[34] See Floyd, supra note 9.
[35] See State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
[36] See id.
[37] See State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987), disapproved on other grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989).
[38] State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004).
[39] Id. at 744, 677 N.W.2d at 172.
[40] State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
[41] See, § 28-105(1) (Reissue 1995); State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005).
[42] See 2002 Neb. Laws, L.B. 1, 3d Spec. Sess. (Nov. 22, 2002).
[43] Conover, supra note 41.
[44] State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).
[45] State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2194510/ | 697 N.W.2d 526 (2005)
472 Mich. 909-924
FORSYTH
v.
HOPPER.
No. 128433.
Supreme Court of Michigan.
June 17, 2005.
SC: 128433. COA: 257907.
On order of the Court, the application for leave to appeal the March 9, 2005 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. We further direct the court to give the holding of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), full retroactive application. We VACATE our April 29, 2005 order granting motion for stay, without prejudice to defendants seeking a stay in the trial court and, if necessary, the Court of Appeals.
We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1218471/ | 195 Ga. App. 692 (1990)
394 S.E.2d 617
ASSAD
v.
THE STATE.
A90A0524.
Court of Appeals of Georgia.
Decided May 18, 1990.
Thomas J. Ousley, for appellant.
Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Desiree L. Sutton, Assistant District Attorneys, for appellee.
CARLEY, Chief Judge.
Appellant was tried before a jury and found guilty of three counts of child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's verdicts of guilt.
1. Appellant filed a timely pre-trial motion pursuant to Brady v. Maryland, 373 U.S. 83 (83 SC 1194, 10 LE2d 215) (1963). On the third day of trial, appellant moved for a mistrial predicated upon the State's alleged suppression of exculpatory evidence in violation of his Brady motion. The evidence at issue was a physician's report finding no physical evidence of abuse or molestation after an examination of one of the victims. The trial court's denial of appellant's motion for a mistrial is enumerated as error.
The indictments alleged appellant's commission of molestation by fondling the victims, not by penetration. Accordingly, the physician's *693 conclusion that there was no physical evidence of abuse was neither exculpatory nor "material." See Glenn v. State, 255 Ga. 533, 535 (2) (340 SE2d 609) (1986); Ballard v. State, 252 Ga. 53, 55 (3) (311 SE2d 453) (1984). Moreover, the mandate of Brady is not violated when the "material is [made] available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. [Cits.]" Glenn v. State, supra at 534 (2). In the instant case, the trial court offered to allow the State's witnesses to be recalled for further cross-examination in light of the report, and also offered appellant a continuance in order to interview the physician who had examined the child. This offer was declined. There being no "manifest necessity" for a mistrial so as to keep the existing proceedings fundamentally fair, the trial court did not err in denying appellant's motion. Haynes v. State, 245 Ga. 817 (268 SE2d 325) (1980).
2. Over appellant's hearsay objection, an investigating officer was permitted to testify as to a statement by one victim to the effect that she saw appellant molest the other victim. Clearly, the officer's testimony as to what one of the victims said she saw appellant do to the other victim is hearsay and is inadmissible. OCGA § 24-3-1. Contrary to the State's contentions, this testimony would not be admissible as original evidence under OCGA § 24-3-2, since the officer's conduct and motives were not at issue. Black v. State, 190 Ga. App. 137 (1) (378 SE2d 342) (1989). Likewise, this testimony would not be admissible under OCGA § 24-3-16, the Child Hearsay Statute. By its terms, that statute relates only to such statements as are made by the actual victim of the event being related. Holden v. State, 187 Ga. App. 597, 598 (2) (370 SE2d 847) (1988). Accordingly, the trial court erred in permitting the officer to testify as to what the one victim said that she saw done to the other. However, as the record shows that this testimony was merely cumulative of the testimony of the actual victim herself, the error was harmless. Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).
Judgments affirmed. McMurray, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4215797/ | Motion Granted; Appeal Dismissed and Memorandum Opinion filed October
26, 2017.
In The
Fourteenth Court of Appeals
NO. 14-17-00635-CV
JAMES E. ELBAOR, Appellant
V.
RAVI MOPARTY, ET AL, AND FADI GHANEM, Appellees
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2016-15978
MEMORANDUM OPINION
The trial court’s judgment was signed July 3, 2017. James E. Elbaor filed a
notice of appeal on August 1, 2017. Fadi Ghanem filed a notice of appeal on August
17, 2017.
On September 5, 2017, Elbaor filed a motion to dismiss his appeal. See Tex.
R. App. P. 42.1(a)(1). The motion is GRANTED.
To date, our records show that Ghanem has not paid the appellate filing fee.
See Tex. R. App. P. 5 (requiring payment of fees in civil cases unless party is excused
by statute or by appellate rules from paying costs); Tex. Gov’t Code Ann. § 51.207
(West 2013). On September 21, 2017, this court ordered Ghanem to pay the appellate
filing fee on or before October 2, 2017, or the appeal would be dismissed. Ghanem
has not paid the appellate filing fee.
Accordingly, the appeal is DISMISSED. See Tex. R. App. P. 42.1(a)(1)
(governing dismissal on appellant’s motion); Tex. R. App. P. 42.3(c) (allowing
involuntary dismissal of case because appellant has failed to comply with notice
from clerk requiring response or other action within specified time).
PER CURIAM
Panel consists of Justices Jamison, Busby, and Donovan
2 | 01-03-2023 | 10-30-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1587090/ | 944 So. 2d 345 (2006)
MICHELSON
v.
STATE.
No. SC06-471.
Supreme Court of Florida.
November 6, 2006.
Decision without published opinion. Mand. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587089/ | 709 F. Supp. 455 (1989)
Gabriel SAS, Plaintiff,
v.
TRINTEX, Defendant.
No. 88 Civ. 2590 (GLG).
United States District Court, S.D. New York.
March 28, 1989.
*456 Law Offices of Donald L. Sapir, White Plains, N.Y. (Donald L. Sapir, William D. Frumkin, of counsel), for plaintiff.
Hertzog, Calamari & Gleason, New York City (Peter E. Calamari, Anthony L. Paccione, of counsel), for defendant.
OPINION
GOETTEL, District Judge.
This case presents itself in a most unusual procedural posture. The action is a typical employment discharge case in which the plaintiff claims he was discharged not for the stated reasons but because of invidious discrimination. The plaintiff injured a fellow employee during a physical altercation between the two. Plaintiff thereafter was discharged. He claims that, because the injured employee was not discharged as well, the discharge was discriminatorily based on plaintiff's religion (Jewish) and national origin (Israeli) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.[1]
As is increasingly customary in these employment cases, a second claim based on the same facts and, for all intents and purposes, indistinguishable from the first is added under 42 U.S.C. § 1981 ("section 1981"). See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 107 S. Ct. 2019, 2022, 95 L. Ed. 2d 594 (1987) (holding members of Jewish faith constitute cognizable racial group for purposes of federal civil rights law). Notwithstanding the constitutional gloss placed on this case by the section 1981 add-on (via the Thirteenth Amendment), this case looks like a title VII duck, walks like a Title VII duck, and quacks like a Title VII duck. Whether it can and should nonetheless be called a section 1981 duck is a proposition with which this court harbors certain reservations.
This add-on tactic, of course, has strategic underpinnings. The addition of a section 1981 claim opens the door to far broader legal relief (i.e., compensatory and punitive damages) than exists under Title VII. Further, and as a result of the foregoing, a section 1981 claim, unlike one under Title VII, secures a right to trial by jury. We recently had occasion to take issue with this strategic use of our Nation's civil rights law. In Wade v. Orange County Sheriff's Office, 690 F. Supp. 176 (S.D.N.Y. 1987), we concluded that in a Title VII/section 1981 or 1983 case the court, as the exclusive trier of fact on the Title VII claim, was not bound by the jury's findings of fact on the parallel section 1981 or 1983 claim. After noting that plaintiff's Seventh Amendment jury rights had been protected in that case since the section 1981/1983 claim was decided prior to our decision on the equitable count, id. at 179, we went on to reject plaintiff's contrary thesis as to the jury's proper role in such cases, animated chiefly by due concern for Congress's implicit desire, expressed in their decision to limit Title VII to equitable relief only, to have the court and not a jury decide Title VII claims. Id. Although the disposition of Wade was affirmed by the Second Circuit, the panel, Judge Kearse writing, disagreed with this court's assessment of the proper balance to be struck in determining factual issues in a Title VII/section 1981 or 1983 case. Judge Kearse, arguably in dicta, apparently believes that so long as a civil rights claim can be appended to what admittedly is at its core a Title VII complaint, then the duty of the district court to weigh the facts on *457 the Title VII cause is eviscerated and the district judge is rendered nothing other than a potted plant (to borrow a phrase), obliged to accept the jury's findings of fact even on matters not within its province. Wade v. Orange County Sheriff's Office, 844 F.2d 951, 954-55 (2d Cir.1988).
Certainly, reasonable people could (and obviously did) disagree with this court's conclusions in Wade, and the panel's assessment on appeal may well carry the day on this issue. We note only that the debate seems far from over, see Dwyer v. Smith, 867 F.2d 184 (4th Cir.1989) (disagreeing with panel's conclusions in Wade), and that other courts have approached the tensions inherent in a combined Title VII/section 1981 or 1983 case from a different perspective that may ultimately moot the jury/judge concern confronted in Wade. See generally C. Richey, Manual on Employment Law and Civil Rights Actions in Federal Courts § A.VII. (Fed.Jud.Ctr. Jan. 1988) (discussing cases holding that Title VII is exclusive remedy on employment claims, in essence "preempting" use of section 1981 or 1983). Accord Zombro v. Baltimore City Police Dep't, 868 F.2d 1364 (4th Cir.1989). As will be seen, however, these issues do not present themselves for resolution in the instant proceeding.
Following the usual pretrial discovery, the case at bar was noticed for trial. The defendant made several nuisance-value settlement offers, which was consistent with its view that there was no impermissible discrimination in the discharge and that, in any event, the plaintiff could not demonstrate any damages since he found equally remunerative employment soon after his termination. These offers were rejected by plaintiff's counsel, who indicated that he was looking for a substantially larger sum of money. Defendant then made a final settlement offer of $5,000 and, when that was not accepted, served an offer of judgment for that amount pursuant to Fed.R. Civ.P. 68.
A final pretrial conference was held on December 1, 1988, with the attorneys aware that they would be selecting a jury on the following Monday. On that date, plaintiff's counsel indicated, to defendant's counsel's surprise, that he formally had accepted the offer of judgment and had prepared for the court a proposed judgment which included costs and attorney's fees. Plaintiff's counsel made it clear that he would be seeking very substantial attorney's fees despite the recovery of a relatively insignificant judgment. Defendant's counsel objected to this, stating that he had intended his offer of judgment to be inclusive of all costs and attorney's fees, and attempted orally to revoke the offer. Plaintiff's counsel responded that revocation was untimely because the offer already had been accepted.[2] This court entered a judgment on December 6 in plaintiff's favor based on the acceptance of the offer of judgment and providing, in addition, for an unspecified amount of costs, including attorney's fees.
Counsel for defendant, on December 19, 1988, moved to rescind the offer of judgment and to modify the judgment already entered. Plaintiff's counsel cross-moved for attorney's fees in the amount of $33,144.50, plus disbursements of $1,174.98.[3] Defendant's argument on the motion to rescind or modify the judgment is, essentially, that plaintiff's counsel knew that the offer of judgment was intended to be a total figure, including costs and attorney's fees, and that plaintiff's counsel was guilty of a sharp practice in accepting the offer which, by its terms, was not so limited. Defendant requests that the judgment filed eliminate any reference to additional payments for costs or attorney's fees and that *458 the plaintiff be deemed to have accepted that sum in full satisfaction of all those claims. Alternatively, he argues that defendant be allowed to withdraw the offer of judgment and have the parties belatedly proceed to trial.
This case is controlled in great part by the decision of the Supreme Court in Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985). In the context of a civil rights claim (for the wrongful killing of a person by police), the defendants filed a Rule 68 offer which the plaintiffs did not accept. The defendants' offer of $100,000 (a sum greater than that ultimately recovered after trial) was to include "costs now accrued and attorney's fees." Following trial, plaintiffs sought attorney's fees under 42 U.S.C. § 1988. Defendants urged that only pre-offer attorney's fees were recoverable since Rule 68 requires an offeree to assume costs post-offer if the rejected offer ultimately proves to be greater than the amount recovered at trial. Plaintiff argued that the offer was invalid because it lumped together damages and costs and, consequently, could not be used as a basis for abating costs after the offer was made. The Supreme Court rejected plaintiff's argument and, in addition, concluded that the term "costs" in Rule 68 refers to all costs properly awarded in a civil rights case, which include attorney's fees. Id. 473 U.S. at 9, 105 S.Ct. at 3016.
If the offer of judgment in this case simply had stated that it was to include costs, its acceptance would have prohibited an additional claim for attorney's fees. Conversely, "if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of [Rule 68] to include in its judgment an additional amount which in its discretion it determines to be sufficient to cover the costs." Id. at 6 (citation omitted). It follows that the plaintiff, as prevailing party, is entitled to obtain his costs, including attorney's fees.
Defendant argues that this court must determine what its intentions were in making the offer and what the plaintiff's assumptions were in accepting it. To subject Rule 68 offers to such collateral proceedings would undermine entirely the purpose of the rule. Defendant relies heavily on Radecki v. Amoco Oil Co., 858 F.2d 397 (8th Cir.1988). The case is clearly distinguishable on its facts, involving as it did two offers of judgment, the second of which was intended to clarify the first. Moreover, the statute involved in that case did not make attorney's fees a part of the costs. Further, the court did not even resolve the question of whether an offer of judgment could be revoked, the remedy defendant seeks here.
The simple and obvious fact of the matter is that the defendant's counsel never anticipated that the plaintiff would accept the offer of judgment and, indeed, that offer would not have been accepted had it included attorney's fees. Defendant's counsel simply erred in failing to protect against an acceptance of the offer followed by a request for costs, including attorney's fees. Defendant's motion, therefore, is denied.
We turn now to plaintiff's application for costs, including attorney's fees, of approximately seven times the amount of the accepted judgment. With respect to the rates claimed, the plaintiff's counsel of record, Donald L. Sapir, has billed his time at $175 an hour. We deem that sum to be appropriate for Mr. Sapir, who is an acknowledged and experienced expert in this field. Most of the billed time, however, is for that of his junior associates, for whom a rate of $125 an hour is sought. These associates were only a year or two out of law school at the time they performed their services. Although such an hourly charge might be appropriate for similarly experienced associates in the large New York law firms (who are paid as much as federal judges), we are well aware that compensation for young lawyers here in Westchester County is far less. Although we have not been advised of their salaries when they were associated with Mr. Sapir's firm, we suspect that a charge of $75 an hour might *459 be more appropriate.[4] In addition, the hours charged seem substantially excessive. Of course, they include some time spent prior to the institution of this suit when a state proceeding challenging the ruling of the State Division of Human Rights was contemplated, as well as some of the time that has been involved in this attempt to recover the comparably very large attorney's fee.[5] Finally, a small upward adjustment of the fee is sought to the extent that its recovery was partially contingent. We conclude that, even without reference either to the manner of obtaining the judgment or to its size, the fee sought is clearly excessive.[6]
With respect to the manner in which the judgment was obtained, i.e., by acceptance of an offer of judgment that was imprudently made, we do not believe that should be a reason for reducing the fee award. However, the amount obtained by this method of recovery, an insignificant $5000, is a very pertinent factor to consider. Admittedly, for some civil rights actions the relief obtained is relatively inconsequential. See Carey v. Piphus, 435 U.S. 247, 266-67, 98 S. Ct. 1042, 1053-54, 55 L. Ed. 2d 252 (1978) (holding that, even in absence of actual damages, an award of $1 in nominal damages would be appropriate as a means of vindicating one's "absolute" right to procedural due process).[7] Many of these actions, however, particularly those brought on behalf of a class, achieve important constitutional goals, and the efforts of counsel in realizing them should be rewarded. See McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir.1983) (noting award of attorney's fees "particularly important in cases alleging due process violations, because of the difficulty of proving and recovering actual damages"). Cases of that nature, however, are far removed from the situation at bar which involves a straightforward claim of individual employment discrimination with identifiable money damages flowing therefrom. It is, in reality, simply an action to recover money damages involving no great or unresolved constitutional principles.
Moreover, it has been said, with only a slight bit of exaggeration, that the employment discrimination laws now cover all but white, Anglo-Saxon males in their 20's and 30's who are in good health, and have only the most conventional of sexual interests and religious preferences.[8]See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273, 280-86, 107 S. Ct. 1123, 1127-30, 94 L. Ed. 2d 307 (1987) (those with contagious diseases protected from discrimination in employment by Federal Rehabilitation Act); Dothard v. Rawlinson, 433 U.S. 321, 328-31, 97 S. Ct. 2720, 2726-27, 53 L. Ed. 2d 786 (1977) (height and weight requirements for corrections positions can be discriminatory); Blackwell v. U.S. Dep't of the Treasury, 639 F. Supp. 289, 290 (D.D.C. 1986) (transvestites protected by Federal Rehabilitation Act). Since virtually everyone is protected by legislation, therefore, anyone whose employment is terminated and even those who resign because they do *460 not like the job are free to assert their claims in federal "civil rights" litigation. Such suits have little in common with the great civil rights cases which rendered such profound changes in our society in the last twenty or thirty years. This action, and others like it, seek to recover money and not to vindicate constitutional rights per se and, consequently, the amount recovered should be an important guide to the reasonableness of the attorney's fees award. See especially supra (discussing tactical underpinnings of a section 1981 add-on in a Title VII case).[9]
Indeed, beyond cases like Carey and McCann, cited supra, which involve procedural claims with amorphous damage assertions, the result obtained is a consideration in civil rights litigation where actual damages are more readily quantifiable. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939-40, 76 L. Ed. 2d 40 (1983). In such cases, if "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended ... times a reasonable hourly rate may be an excessive amount." Id. 461 U.S. at 436, 103 S.Ct. at 1941. Accord Hillburn v. Commissioner, Conn. Dep't of Income Maintenance, 683 F. Supp. 23, 26 (D.Conn. 1987) (noting "mandate of Hensley is also that `where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained'") (quoting Hensley, 461 U.S. at 440, 103 S.Ct. at 1943).
Further, when what is essentially a private action for damages masquerades under the banner of vindicating important civil rights, when in reality there is little community or societal benefit to be derived from the action, we think it to be well within the court's discretion if not its obligation to consider that fact in assessing attorney's fees. See, e.g., Hughes v. Repko, 578 F.2d 483, 490-91 (3d Cir.1978) (Rosenn, J., concurring) (stating court may adjust fee downward if amount recovered is small and societal benefits produced by the litigation are minimal); Swicker v. William Armstrong & Son, Inc., 484 F. Supp. 762, 769 (E.D.Pa.1980) (noting downward adjustment in fee may be justified "where the verdict affects only an individual plaintiff complaining of an isolated act of individual discrimination").
Plaintiff relies heavily on the Supreme Court's decision in City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S. Ct. 2686, 2694, 91 L. Ed. 2d 466 (1986) where the Court held:
[W]e reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefitting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.
Consequently, the Court concluded that fee awards "are not conditioned upon and need not be proportionate to an award of money damages." Id. 477 U.S. at 576, 106 S.Ct. at 2695.
Rivera, however, is a true civil rights action under 42 U.S.C. § 1983 involving the deprivation of constitutional rights (in that case, a warrantless intrusion by police accompanied by the excessive use of force). Legally and factually it is far removed from the instant employment-discharge case involving primarily statutory rights and an isolated act of alleged discrimination. On those bases alone we think Rivera to be of somewhat limited authority in the present context.
Further, Rivera was a 4-1-4 decision. The concurring opinion of Justice Powell, which creates the majority, constitutes the controlling law. He notes, at page 585, that "[w]here recovery of private damages is the purpose of a civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount *461 of damages awarded as compared to the amount sought." He further observed that "[i]t probably will be the rare case in which an award of private damages can be said to benefit the public interest to an extent that would justify the disproportionality between damages and fees reflected in this case." Id. 477 U.S. at 586 n. 3, 106 S.Ct. at 2700 n. 3 (emphasis in original). He found, however, that there was an important public interest served by that litigation and concluded:
In sum, despite serious doubts as to the fairness of the fees awarded in this case, I cannot conclude that the detailed findings made by the District Court, and accepted by the Court of Appeals, were clearly erroneous, or that the District Court abused its discretion in making this fee award.
Id. 477 U.S. at 586, 106 S.Ct. at 2700.
Under all these circumstances, and in our discretion, we determine that the appropriate attorney's fee for plaintiff in this action is $7500, plus the costs of $1174.98. The Clerk will enter judgment accordingly.
SO ORDERED.
NOTES
[1] The New York Division of Human Rights found that there was no evidence to support such a claim, finding instead that plaintiff was discharged because he caused an injury to a fellow employee.
[2] Defendant's counsel argues that the acceptance, a copy of which already had been mailed to him, should not be considered effective until December 2 when it appeared on the court's dockets. Based on personal observation of the events, it is clear that plaintiff's counsel had filed his acceptance prior to the pretrial conference on December 1. However, since it was then after 5:00 p.m., the official closing time of the clerk's office, the acceptance did not get docketed until December 2.
[3] Half of these costs were expended in going to California to take the deposition of the injured employee, who was no longer in the defendant's employ.
[4] A law student's time is billed at $50 an hour. There are certain problems concerning the unauthorized practice of law involved in such billings, but even if she is treated as a paralegal we have no information concerning what salary, if any, she was paid.
[5] The hours claimed are, at points, inadequately identified, and there are a number of references to legal research the need for and subject of which is not established.
[6] The plaintiff himself has paid counsel only $6100 for legal services to date. We believe the appropriate lodestar, based upon the modified rates without upward adjustment, to be no more than $20,000.
[7] But see Orozco v. Sobol, 703 F. Supp. 1113, 1117 (S.D.N.Y.1989) (suggesting that when mere prospect of nominal damages prevents dismissal of case as moot, even though case touches on matters of uniquely local concern yet no longer directly implicates constitutional concerns, then law has indeed assumed something of an Alice in Wonderland-like quality; in such a case, the concern alive in Carey v. Piphus the need to award nominal damages to vindicate constitutional principles no longer exists).
[8] Even this rare individual can sue under either section 1981 or section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), claiming that he was fired because he opposed discriminatory employment practices directed against other employees. DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.1975) (relying on Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S. Ct. 400, 404, 24 L. Ed. 2d 386 (1969)).
[9] We recognize, of course, that Title VII is part of this country's patchwork of "civil rights" law. The distinction we draw in this opinion between Title VII and what we broadly have referenced otherwise as civil rights litigation or law is that between statutory claims (Title VII) and constitutional claims (posited under section 1981 or 1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587119/ | 33 So.3d 1100 (2010)
Steven B. FONTENOT
v.
DELHOMME'S FUNERAL HOME, INC., Professional Collection Services, Inc., James King and/or James A. Dorsa, Jr., DFH Insurance Company, Inc., and PCS Insurance Company, Inc.
No. 09-1017.
Court of Appeal of Louisiana, Third Circuit.
April 7, 2010.
S. Stephen Spring, II, Baton Rouge, LA, for Plaintiff-Appellant, Steven B. Fontenot.
Charles M. Rush, Lafayette, LA, for Defendant-Appellee, Delhomme's Funeral Home, Inc.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
PAINTER, Judge.
Plaintiff, Steven B. Fontenot, appeals the trial court's judgment dismissing his appeal for failure to pay costs timely. Finding no error in the trial court's judgment, we affirm.
FACTS
On March 5, 2008, Plaintiff filed a motion to annul a judgment denying him pauper status. The trial court, on March 11, *1101 2008, denied the motion ex parte for failure to state any grounds for annulment. In denying the motion, the court noted that the appropriate way to challenge a ruling on a denial of pauper status would be by writ application. On May 29, 2008, Plaintiff filed a motion for appeal of the March 11 denial of his motion to annul. The appeal was granted on June 5, 2008. On May 13, 2008, a notice of the estimated costs of appeal was sent to Plaintiff giving him until July 3, 2008 to pay. On July 18, 2008, he filed a motion to extend the time to pay the estimated costs of appeal. The court denied the motion noting that it was untimely because the costs were due by July 3, 2008. In October 2008, Defendant, Delhomme's Funeral Home, moved to dismiss the appeal as abandoned, and the matter was set for a hearing. On March 12, 2009, Plaintiff paid $1000.00 of the appeal costs. A hearing was held on March 16, 2009, and judgment issued dismissing the appeal on April 17, 2009. Plaintiff appeals that judgment.
DISCUSSION
Plaintiff argues that dismissal of his appeal pursuant to La.Code Civ.P. art. 2126 is a harsh remedy and should not have been used to deprive him of his appeal.
Louisiana Code of Civil Procedure Article 2126 provides that:
A. The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court. The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.
B. Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.
C. The appellant may question the excessiveness of the estimated costs by filing a written application for reduction in the trial court within the first twenty-day time limit, and the trial court may order reduction of the estimate upon proper showing. If an application for reduction has been timely filed, the appellant shall have twenty days to pay the costs beginning from the date of the action by the trial court on application for reduction.
D. After the preparation of the record on appeal has been completed, the clerk of the trial court shall, as the situation may require, either refund to the appellant the difference between the estimated costs and the actual costs if the estimated costs exceed the actual costs, or send a notice by certified mail to the appellant of the amount of additional costs due, if the actual costs exceed the estimated costs. If the payment of additional costs is required, the appellant shall pay the amount of additional costs within twenty days of the mailing of the notice.
E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of abandonment; or
(2) Grant a ten day period within which costs must be paid in full, in default *1102 of which the appeal is dismissed as abandoned.
F. If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.
This article grants the trial court the discretion to dismiss the appeal as abandoned where the appellant fails to pay the costs within the time specified. In this case, Plaintiff failed to pay the costs timely, failed to move for an extension of time prior to the expiration of the time to pay the costs, and, finally, attempted a partial payment of appeal costs well after opposing counsel moved to dismiss the appeal. Therefore, we find no abuse of discretion by the trial court in dismissing the appeal, and we decline to overturn the dismissal.
CONCLUSION
For the foregoing reasons, the judgment of the trial court dismissing Plaintiff's appeal is affirmed. Costs of this appeal are to be paid by Plaintiff-Appellant, Steven Fontenot.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918955/ | 90 N.J. Super. 565 (1966)
218 A.2d 655
JOSEPH WHITE, PLAINTIFF,
v.
MERRILL, LYNCH, PIERCE, FENNER & SMITH, INC., DEFENDANT.
Superior Court of New Jersey, Law Division.
Decided March 18, 1966.
*566 Mr. Thomas M. Venino for plaintiff (Messrs. Venino & Venino, attorneys; Mr. Fredric W. Altschul, on the brief).
Mr. Theodore L. Abeles for defendant (Messrs. Lum, Biunno & Tompkins, attorneys).
SCHNEIDER, J.C.C. (temporarily assigned).
This is a suit against a stockbroker to recover monies paid for bonds which proved to of questionable value. On February 26, 1963 Joseph White placed an order with his stockbroker, defendant Merrill, Lynch, Pierce, Fenner & Smith, for 670 convertible subordinated debentures of the Continental Vending Machine Corporation. These securities were listed on the American Stock Exchange. The debentures had a face value of $10,000 and a due date of September 1, 1976. The negotiated price *567 for the debentures was $5,530. The order was filled the same day. Defendant secured the debentures from two other brokerage houses. On the next day, February 27, 1963, the American Stock Exchange suspended trading in the securities of Continental Vending. On March 4, 1963 the ten debentures were tendered to Mr. White and he paid for them, together with a $25 commission fee. It was later ascertained that the prior owner of the debentures was Harold Roth, president of Continental Vending.
A Chapter X proceeding against Continental Vending was filed in the Eastern District of New York, and involuntary bankruptcy was adjudicated on July 12, 1963. However, this proceeding did not render the debentures valueless. On oral argument counsel was unable to state the present or future worth of these debentures. Pursuant to action by the Securities and Exchange Commission, trading of these securities remains suspended down to the present date.
Plaintiff requested an opinion from Continental Vending and was informed the debentures were valid. He filed proof of claim in the bankruptcy court and there has never been any ruling affecting the validity of the bonds.
The facts are not in dispute. Plaintiff does not suggest that defendant knew of Continental Vending's precarious financial condition. Neither is it contended that defendant fraudulently misrepresented Continental Vending's financial condition or that defendant failed to convey good title. Plaintiff admits that the debentures were not purchased upon defendant's recommendation.
Plaintiff contends that defendant was acting as his agent, and that agents are under a fiduciary duty to their principals. The day after the order was placed a "red flag" went up; trading in the debentures was suspended. Defendant, he says, was then under a duty to put its principal's interests before its own and rescind the transaction on the ground that the value of the debentures was now grossly impaired. Only defendant could rescind, and it was under a fiduciary duty to protect its principal
*568 Defendant contends that plaintiff entered into a unilateral contract with his stockbroker; if the broker delivered ten debentures he would pay $5,530. Upon delivery the broker was entitled to the money, and was in fact paid. Secondly, it is undisputed that plaintiff frequently bought and sold debentures. In so doing he implicitly accepted the practice and custom of the trade. The accepted rule of the stock market is that barring fraud or misrepresentation, orders are final once they are placed and filled. Thirdly, the broker argues that any other rule would make the broker a guarantor and insurer of future events. This would necessitate a higher commission rate and greatly complicate the transaction of business orders would no longer be final until delivery of the stock. Finally, under the rules of the Exchange, defendant could not simply "rescind" an order which was filled the previous day. Arbitration between the buying and selling brokers would be necessary.
It is beyond dispute that plaintiff is a purchaser of negotiable securities and has acquired the protected status of a holder in due course. N.J.S. 12A:3-302; Morgan v. United States, 113 U.S. 476, 5 S.Ct. 588, 28 L.Ed. 1044 (1884). The broker has thus complied with his contractual obligation of conveying good title to the buyer.
The question before the court, then, is whether defendant was under a legal duty to cancel the order of February 26 upon learning the next day that trading was suspended by the Exchange.
Courts are reluctant to disturb the matrix of rules and practices which form the underpinning for the conduct of business in the commercial community. Traditionally, an effort was made by the courts to accommodate equitable principles of law with commercial practices. In keeping with this tradition, the concept of a holder in due course was developed to increase the negotiability of securities.
"The very purpose of rules making certificates negotiable when endorsed in blank is to enable all persons to treat possession of the certificates *569 as equivalent to ownership." Mason v. Public National Bank, 262 App. Div. 249, 28 N.Y.S.2d 416, 424 (App. Div. 1941).
Where brokers have not acted fraudulently, the courts have sought to protect their status.
"* * * it would seem clear that no liability should be imposed on agents or brokers acting innocently in such cases. The bonds, being negotiable, pass by delivery, and the transferee to whom they are sold, who takes them for value and in good faith, obtains a good title as against the real owner." First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 17 A.2d 377, 380 (Sup. Ct. 1941)
In the early case of Steward and Metler v. Scudder, 24 N.J.L. 96 (Sup. Ct. 1853), the court recognized that the general custom and usage of the market place were valid aids in construing a contract between a grain merchant and a broker. It was stated that the court would recognize "those general customs which form so important a part of the common law and the general custom of merchants" where such customs and practices were "reasonable and adapted to increase trade and promote fair dealing." Ibid., at p. 106. See also Manhattan Overseas Co. v. Camden Co. Bev. Co., 125 N.J.L. 239, 244 (Sup. Ct. 1940).
The holding in Hawkins v. Merrill, Lynch, Pierce, Fenner & Beane, 85 F. Supp. 104, 121 (D.W.D. Ark. 1949), is indicative of the view taken by those courts which have considered the problem: customers are bound by the rules of the stock exchange "even though they did not have actual knowledge of them." 50 Am. Jur. § 22, p. 642; see also Annotation 79 A.L.R. 592.
However, where a customer has no actual or constructive knowledge that his agent will trade on a certain market, the Supreme Court has held that he will not be bound by the rules of that market where such rules work a substantial and material change in his rights. Irwin v. Williar, 110 U.S. 499, 4 S.Ct. 160, 28 L.Ed. 225 (1883).
The courts of New York have been in accord with the above views.
*570 "The general rule is that where a customer gives an order to a broker to be executed on a board of trade or exchange, he contemplates conformity to the rules and customs that prevail there (Wilhite v. Houston, 200 Fed. 390, 118 C.C.A. 542), and if he knows that the broker is a member of a particular exchange and is bound by its rules adopted to facilitate business, he may be bound by the rules although not fully informed concerning them (Springs v. James, 137 App. Div. 110, 121 N.Y. Supp. 1054, affirmed 202 N.Y. 603, 96 N.E. 1131)." Ford v. Snook, 205 App. Div. 194, 199 N.Y.S. 630 (App. Div. 1923), affirmed 240 N.Y. 624, 148 N.E. 732 (Ct. App. 1925).
The New York courts have gone so far as to say that "* * * a person who instructs a broker to carry out a certain transaction which would necessarily, or even ordinarily, involve its being carried out on a certain exchange, is bound by the rules of that exchange." Hyman v. Sachs, 194 Misc. 69, 86 N.Y.S.2d 237, 239 (Sup. Ct. 1948), affirmed 275 App. Div. 804, 89 N.Y.S.2d 608 (App. Div. 1949), affirmed 300 N.Y. 499, 89 N.E.2d 20 (Ct. App. 1949).
Plaintiff in the case chose to trade on the American Stock Exchange. Admittedly, the practices of any exchange are not entirely satisfactory. Exigencies of time and finality to transactions prevent the system from being perfect. Under the law, by choosing to trade on the Exchange plaintiff was in effect subjecting himself to its practices. If the practices and rules of the Exchange prevented defendant from cancelling the order placed the previous day, plaintiff cannot now be heard to complain unless these practices are so repugnant to common principles of equity and fair dealing as to compel the court to redress his grievances. Ordinarily, the court will not lightly interfere with so complex yet workable, a system as a stock exchange. Therefore, assuming that under the circumstances of this case the rules of the Exchange would prevent cancellation, plaintiff is bound by such rules.
Per contra, if under the rules of the Exchange it was incumbent upon defendant to cancel the transaction, plaintiff would have a proper cause of action. But there has been no adequate showing by plaintiff to this effect.
For these reasons judgment will be entered for the defendants. | 01-03-2023 | 10-30-2013 |
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