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https://www.courtlistener.com/api/rest/v3/opinions/1590225/ | 14 So. 3d 883 (2008)
ATTALLA HEALTH CARE, INC.
v.
Teresa KIMBLE.
2061007.
Court of Civil Appeals of Alabama.
May 9, 2008.
Rehearing Denied December 19, 2008.
Certiorari Denied February 20, 2009
Alabama Supreme Court 1080412.
*884 Jack W. Torbert of Torbert & Torbert, P.A., Gadsden, for appellant.
Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for appellee.
PITTMAN, Judge.
Attalla Health Care, Inc. ("the employer"), appeals from a judgment of the Etowah Circuit Court awarding Teresa Kimble ("the employee") benefits pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Ex mero motu, we dismiss the appeal as untimely.
The employee sued the employer in March 2006, seeking an award of workers' compensation benefits with respect to a neck and back injury that she allegedly had sustained in September 2005. The employer answered the complaint in late March 2006, but it later amended its answer in January 2007 to plead certain "special defenses" to the complaint, including that the employee had refused suitable employment so as to bar her claim for workers' compensation benefits. After an ore tenus proceeding, the trial court rendered a judgment on April 11, 2007, that, in pertinent part, awarded the employee workers' compensation benefits on the basis that she had suffered a permanent and total disability; pursuant to Rule 58(c), Ala. R. Civ. P., as amended effective September 19, 2006, that judgment was "entered" on April 16, 2007, the date on which that judgment was entered into the State Judicial Information System.[1]
Under Ala.Code 1975, § 25-5-81(e), any aggrieved party may appeal of right to this court from a judgment entered in a workers' compensation action "within 42 days" after entry of that judgment. Likewise, Rule 4(a)(1), Ala. R.App. P., provides that "[e]xcept as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to... a court of appeals, the notice of appeal... shall be filed ... within 42 days ... of the date of the entry of the judgment ... appealed from." No notice of appeal in this case was filed on or before May 29, 2007, the first working day after May 28, 2007, (Memorial Day) the 42d day following the entry of the trial court's judgment.[2] However, under Rule 4(a)(3), Ala. R.App. *885 P., "[t]he filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal" until "the date of the entry in the civil docket of an order granting or denying [that] motion."
On May 9, 2007, within 30 days after the entry of the trial court's judgment, the employer filed what it styled a "Motion for New Trial Pursuant to Rule 59 and/or Motion for Relief from Judgment Pursuant to Rule 60" in which it stated the following grounds:
"[T]he findings of fact by the Court are contrary to the evidence in this cause.
"[T]he finding by the Court that the [employee] is totally permanently disabled is contrary to the evidence in this case.
"The conclusions of law by the Court are contrary to the law.
"[T]he Court's finding that the [employee] is permanently and totally disabled and unable to obtain and perform suitable employment is contrary to the facts in this case.
"[T]he Court's finding that the [employee] is permanently and totally disabled and unable to obtain and perform suitable employment is contrary to the law.
"[T]he Court's finding that '[the employee] and the witnesses who testified in her behalf [were] credible and truthful' is contrary to the evidence in the case.
"[T]he judgment of the Court is contrary to the provisions of Section 25-5-57(a)(4)d[., Ala.Code 1975,] which provides: [']Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept reasonable accommodation shall not be deemed permanently and totally disabled.'
"[T]he judgment of the Court is contrary to the provisions of Section 25-5-57(a)(4)d[.] in that [the employee] refused to accept reasonable accommodation provided by her employer pursuant to restrictions set out by her treating physician[.]
"[T]here was no evidence presented to establish the life expectancy of the [employee].
"[T]he [judgment] awarding counsel [for the employee] $31,980.54 [as a] present commuted value of the attorney's fee is not supported by the evidence in the case.
"[T]he Judgment of the Court is contrary to the provisions of Section 25-5-57(a)(3)e.[, Ala.Code 1975.]
"[T]he Judgment in this cause is contrary to the evidence in this cause in that the [employee] is not entitled to any compensation in that [she] has refused employment suitable to her capacity offered by the [employer], and [she] has refused to perform said job.
"[T]he Judgment of the Court is contrary to the law in this cause in that the [employee] is not entitled to any compensation in that she has refused employment suitable to her capacity offered by the [employer] in this cause, and the [employee] has refused to perform said job.
"[T]he Judgment in this cause in contrary to the evidence in this cause in that the [employee] would only be entitled to a physical impairment rating and not a vocational disability rating pursuant to Section 25-5-57[, Ala.Code 1975,] in that the [employer] has offered employment to [the employee], which [she] has unjustifiably refused to accept.
*886 "[T]he Judgment in this cause is contrary to the law in this cause in that the [employee] would only be entitled to a physical impairment rating and not a vocational disability rating pursuant to Section 25-5-57[, Ala.Code 1975,] in that the [employer] has offered employment to [the employee], which [she] has unjustifiably refused to accept."
The employer's motion, to the extent that it sought a new trial based upon the grounds alleged, was a proper motion under Rules 59(a) and 59(b), Ala. R. Civ. P. Moreover, to the extent that the employer's motion can properly be construed as a motion pursuant to Rule 60(b), Ala. R. Civ. P.,[3] we noted in Ex parte Gamble, 709 So. 2d 67 (Ala.Civ.App.1998), that "Alabama law allows a party to join a request for relief from judgment under Rule 60(b) with a request for a post-judgment remedy," such as a new trial, although "it frowns upon the practice." 709 So.2d at 70. Of course, the denial of a Rule 60(b) motion is itself appealable. Williams v. Williams, 910 So. 2d 1284, 1286 (Ala.Civ. App.2005).
In response to the employer's motion, the trial court entered an order on May 10, 2007, setting the employer's motion for a June 21, 2007, hearing. However, on May 24, 2007, the trial court entered an order stating that the "Motion for New Trial and Motion for Relief of Judgment is hereby denied." On May 25, 2007, the trial court, on its own motion, entered an order purporting to set aside that court's May 24, 2007, order denying the employer's motion, stating that the employer's motion would "be heard as previously scheduled." On June 21, 2007, after a hearing, the trial court entered an order purporting to again deny the employer's motion. The employer filed a notice of appeal on August 2, 2007, 42 days after the entry of the trial court's June 21, 2007, order.
Based upon the text of Rules 4(a)(1) and 4(a)(3), Ala. R.App. P., the employer's notice of appeal can be deemed timely filed only if the trial court could properly have set aside its May 24, 2007, order denying the employer's motion. However, under Alabama law, "[a] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b) ... motion." Ex parte Vaughan, 539 So. 2d 1060, 1061 (Ala.1989); accord Ex parte Keith, 771 So. 2d 1018, 1022 (Ala.1998) (trial court may not "otherwise review" its order denying a Rule 60(b) motion). Similarly, "after a trial court denies a Rule 59 post-judgment motion, the trial court no longer has jurisdiction over the case and the aggrieved party's only remedy is to appeal." Ex parte Allstate Life Ins. Co., 741 So. 2d 1066, 1071 (Ala.1999).
The facts in Paris v. Estate of Williams, 769 So. 2d 321 (Ala.Civ.App.2000), are substantially similar to those in this case. In Paris, a party filed a timely postjudgment motion directly attacking one aspect of a trial court's judgment; although that motion was denied by the trial court on October 6, 1999, the trial court later purported to "set aside" the order of denial and to set a hearing on the postjudgment motion. We dismissed an appeal taken from the trial court's judgment because the notice of appeal had not been filed within 42 days of the entry of the trial court's October 6, 1999, order denying the postjudgment motion, and we did so notwithstanding the trial court's attempt to "set aside" that denial on its own initiative. 769 So.2d at 323.
*887 In this case, the trial court lacked jurisdiction, after the entry of its May 24, 2007, order denying the employer's postjudgment motion, to "reconsider" the propriety of that order; the entry of that order, pursuant to Rule 4(a)(3), Ala. R.App. P., triggered the beginning of the 42-day period within which a notice of appeal in the case could properly have been filed. Because the employer did not timely file its notice of appeal on or before July 5, 2007, this court lacks jurisdiction to review the correctness of the trial court's April 11, 2007, judgment, and we must dismiss the employer's appeal. See Rule 2(a)(1), Ala. R.App. P. ("An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.").
APPEAL DISMISSED.
THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] Although the employee's action was filed in March 2006, before the promulgation of the amendment to Rule 58(c), Ala. R. Civ. P., that amendment has been held to apply retroactively to all cases pending on the date the amendment was promulgated, including cases "pending" in an appellate court. See Ex parte Luker, [Ms. 1051805, August 31, 2007] ___ So.3d ___, ___ (Ala.2007).
[2] When, as here, the last day for performing some act required under the Alabama Rules of Appellate Procedure would fall upon a legal holiday, such as Memorial Day, Rule 26(a), Ala. R.App. P., extends the pertinent legal deadline to "the next day which is not a Saturday, Sunday, or legal holiday."
[3] But see Curry v. Curry, 962 So. 2d 261 (Ala. Civ.App.2007) (indicating that a motion invoking Rule 60(b), Ala. R. Civ. P., will be treated under certain circumstances as a motion seeking relief under Rule 59(e), Ala. R. Civ. P.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590270/ | 972 So. 2d 1172 (2007)
JPMORGAN CHASE BANK, N.A., Plaintiff-Appellee
v.
Hersy JONES, Jr. and Cheynita Delphine Woodson-Jones, Defendants-Appellants.
No. 42,396-CA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 2007.
Hersy Jones, Jr., in Proper Person.
Love, Rigby, Dehan & McDaniel by Hani E. Dehan, Shreveport, for Appellant, Cheynita D. Woodson-Jones.
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, by L. David Cromwell, Joseph S. Woodley, Shreveport, for Appellee.
Before WILLIAMS, STEWART and LOLLEY, JJ.
LOLLEY, J.
Hersy Jones, Jr., appearing pro se, appeals the judgment of the First Judicial District Court, Parish of Caddo, State Of Louisiana, granting summary judgment in favor of JPMorgan Chase Bank, N.A. For the following reasons, we affirm.
FACTS
On October 26, 2001, Hersy Jones, Jr. and Cheynita Delphine Woodson-Jones executed a promissory note in favor of Premier Bank, National Association, in the original principal sum of $113,192.42. The note had a final maturity of November 10, 2006, and interest prior to default at the rate of seven and one-quarter percent (7.25%) per annum until paid. The note also provided that the Joneses would pay all attorneys' fees, as well as any court and collections costs actually incurred by the holder. Subsequently, Premier Bank changed its name to Bank One, Louisiana, N.A., which then merged into Bank One, N.A., and which, finally, merged into JPMorgan Chase Bank, N.A., the plaintiff/appellee herein ("Chase Bank").
On March 10, 2005, the note went into default due to nonpayment. As of September 19, 2005, the note, after crediting all payments made, had an unpaid balance of 2,851.53 in principal, late fees in the amount of $407.87, other fees of $50.00, and interest accrued through September 19, 2005, in the amount of $3,164.00. Further, interest continued to accrue at the rate of 7.25% per annum or $16.46 per day. As a result of the Joneses' default, Chase Bank filed suit seeking judgment from the defendants on the unpaid balance of the promissory note, as well as recognition *1173 of the pledge of a collateral mortgage note also executed by the defendants and its corresponding mortgage of immovable property. The defendants filed separate answers to Chase Bank's petition both in the form of a general denial. Subsequently, Chase Bank filed a motion for summary judgment, which was supported by an affidavit by John W. Thornton, a vice-president with Chase Bank who was responsible for the loan and had personal knowledge of it. In Thornton's affidavit, he confirmed that the note was in default and the amount due. Hersy Jones filed an opposition to the motion, but offered no countervailing affidavit or other evidence. The trial court granted Chase Bank's motion for summary judgment, and this appeal by Hersy Jones ensued.[1]
DISCUSSION
Jones is not appealing the trial court's ruling that Chase Batik was entitled to judgment on the issue that he was in default on the loanhe accepts that portion of the ruling. However, he disputes the correctness of the judgment regarding the amount due as a result of his default, specifically attacking the sufficiency of Thornton's affidavit to prove the amount due. Jones maintains that Chase Bank failed to file into the record a statement of account or an amortization schedule showing a history of his loan that would have, he claims, established the correctness of the amount due. According to Jones, the failure to include such necessary proof of the amount owed creates a genuine issue of material fact, making summary judgment on this issue improper. We disagree.
Appellate courts review summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Shelton, v. Standard/700 Associates, XXXX-XXXX (La.10/16/01), 798 So. 2d 60; Fordham v. Nissan North America, 41,987 (La.App.2d Cir.04/04/07), 954 So. 2d 346. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id.
The burden of proof on a motion for summary judgment remains with the movant, in this case, Chase Bank. La. C.C.P. art. 966(C)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). As provided in La. C.C.P. art. 967(B), Jones may not rest on the mere allegations of his pleading in response to a properly made and supported motion for summary judgment; rather his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).
Here, Jones disputes the suitability of Thornton's affidavit to prove the amount of his outstanding debt to Chase Bank. Initially, we note that Chase Bank clearly proved in its motion for summary judgment that. (1) the note was in default, (2) the authenticity of the signatures on the note, and (3) that it was entitled to enforce the notefacts which Jones does not dispute. Next, we observe that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such *1174 facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). We determine that the affidavit offered by Chase Bank to support its motion for summary judgment is sufficient to prove its case against Jones. Here, Thornton stated that as a bank officer with Chase Bank he was responsible for and had knowledge of the Joneses' loan account. In said capacity, Thornton averred to the amount owed, but Jones argues that his sworn statement is inadequate to prove the amount due. However, Jones fails to offer any specific facts to show that Thornton's statements as to the amount owed are incorrect or unreliable. Jones simply failed to show that there was indeed a genuine issue for trial on the amount due. Interestingly, Jones does not dispute that he is in default on the loan, which is another fact averred to by Thornton. So considering, we conclude that summary judgment was properly granted in favor of Chase Bank, and this assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the summary judgment in favor of JPMorgan Chase Bank, N.A. is affirmed. All costs of this appeal are assessed to Hersy Jones, Jr.
AFFIRMED.
NOTES
[1] Cheynita Delphine Woodson-Jones answered the original petition, but does not appeal the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586931/ | 3 Wis. 2d 612 (1958)
GORDON S. STARK & COMPANY, INC., Appellant,
vs.
ROETS, Respondent.
Supreme Court of Wisconsin.
March 6, 1958.
April 8, 1958.
*613 For the appellant there were briefs and oral argument by George A. Gessner of Milwaukee.
For the respondent there was a brief by H. O. Wolfe and Wolfe, O'Leary & Kenney, all of Milwaukee, and oral argument by H. O. Wolfe.
BROWN, J.
"The summary-judgment procedure is not calculated to supplant the demurrer, or motion to make the pleadings more definite and certain, nor is it to be a trial on affidavits. McLoughlin v. Malnar (1941), 237 Wis. 492, 297 N.W. 370. Summary judgment should be granted only when it is perfectly plain that there is no substantial issue to be tried. Prime Mfg. Co. v. A. F. Gallun & Sons Corp. (1938), 229 Wis. 348, 281 N.W. 697; Atlas Investment Co. v. Christ (1942), 240 Wis. 114, 2 N. W. (2d) 714. The summary-judgment statute (sec. 270.635, Stats.) is not a substitute for a regular trial nor does it authorize the trial of controlling issues on affidavits. If there is any substantial issue of fact which entitles the plaintiff to a determination thereof by a jury or the court, the defendant's motion for summary judgment must be denied. Parish v. Awschu Properties, Inc. (1945), 247 Wis. 166, 19 N. W. (2d) 276." Batson v. Nichols (1951), 258 Wis. 356, 358, 46 N. W. (2d) 192.
*614 "On a motion for summary judgment the court is only required to decide whether there is an issue for trial." Milwaukee County v. Milwaukee Yacht Club (1950), 256 Wis. 475, 479, 41 N. W. (2d) 372.
The pleadings and affidavits filed by the respective parties agree that from 1935 to November 16, 1951, one J. R. Roets owned and operated an insurance agency. During all that time defendant was his office manager. On the latter date Roets sold his business with its records and other properties to plaintiff.
At first plaintiff operated as an individual and later incorporated. Since this change is not material to any issue raised by this appeal it will be ignored.
Plaintiff retained defendant as his office manager until January 1, 1955. Then he removed her as such but she continued to work in his insurance office until September 1, 1955, when, after giving plaintiff two weeks' notice, she quit and started an insurance agency for herself. Many patrons of plaintiff's agency whom defendant had served while she was employed there transferred their insurance business to her new agency.
The parties had no contract restricting defendant's activities if her employment by plaintiff should cease.
Plaintiff's complaint and affidavits allege, among other things, that business which belonged to plaintiff was thus diverted because defendant took with her when she left confidential records, to which as plaintiff's employee she had access, and either kept or copied them and used them in soliciting the insurance business of the patrons to whom the purloined records referred.
Defendant's answer, affidavits, and incorporated deposition deny that she either took, copied, or used such records. She further alleges by affidavit that she had an agreement first with Roets and later with plaintiff that a number of clients were her own, individually, and that by agreement *615 with plaintiff she was allowed to solicit business outside of office hours and keep as her own the clients and business so obtained.
While admitting that defendant had a few personal clients, plaintiff denies any agreement with defendant recognizing as hers many of those she claims, and particularly denies that while in plaintiff's employ defendant had an agreed right to solicit or acquire business for her own account. Defendant's pleadings and affidavits aver that her continued contact with such clients is none of plaintiff's affair. Plaintiff says these are his patrons and defendant must not tamper with them. There are many such material issues of fact.
Restatement, 2 Agency, p. 896, sec. 396, lays down the rule:
"Unless otherwise agreed, after the termination of the agency, the agent:
"(a) has no duty not to compete with the principal; and
"(b) is subject to a duty to the principal not to use or disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or other similar confidential matters given to him only for the principal's use or acquired by the agent in violation of duty. The agent may use general information concerning the method of business of the principal and the names of the customers retained in his memory, if not acquired in violation of his duty as agent."
The many obvious issues of material facts to be settled by trial before the court can attempt to apply principles of law require a denial of plaintiff's motion for summary judgment.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590343/ | 563 F. Supp. 224 (1983)
RED STAR TOWING & TRANSPORTATION COMPANY, INC., Plaintiff,
v.
The CARGO SHIP "MING GIANT", Yangming Marine Transport Corp., Defendant.
In the Matter of Complaint of RED STAR TOWING & TRANSPORTATION COMPANY, INC., as owner of the TUG OCEAN KING for exoneration from or Limitation of Liability
Lorraine MOWEN as Administratrix of the Estate of Dennis Mowen, Plaintiff,
v.
YANGMING MARINE TRANSPORT CORP., and Red Star Towing & Transportation Company, Inc., Defendants.
Nos. 78 Civ. 2442 (PNL), 78 Civ. 5448 (PNL) and 78 Civ. 5537 (PNL).
United States District Court, S.D. New York.
May 6, 1983.
*225 Fred J. Cuccia, Cuccia & Oster, New York City, for Lorraine Mowen.
James M. Leonard, Stephen J. Buckley, McHugh, Leonard & O'Conor, New York City, for Red Star Towing & Transp. Co.
Richard H. Brown, Jr., Harry A. Gotimer, Kirlin, Campbell & Keating, New York City, for Yangming Marine Transport Corp.
ORDER
LEVAL, District Judge.
Yangming seeks a ruling that it has a right to contribution from Red Star for a portion of Yangming's liability to Lorraine Mowen. Mowen moves for prejudgment interest.
Yangming contends that Red Star owes it contribution to the extent that Red Star's employee Dennis Mowen was responsible for the collision. The jury's findings are explained in the opinion of December 3, 1982, at 552 F. Supp. 367, 370 (S.D.N.Y. 1982). In brief, the jury apportioned one-ninth of the responsibility for the collision to Dennis Mowen, the remainder to Yangming and assessed further responsibility against Red Star and Yangming for failure *226 to save Mowen after the collision. The jury held Mowen 5% responsible for his own death. Yangming argues that Mowen's fault must be imputed to his employer Red Star, and that Red Star must therefore contribute to Yangming's liability to Mowen.
Yangming is certainly entitled to contribution to the extent that it suffers liability by reason of the fault of Red Star's employee. However, as to the liability to Mowen's widow, Yangming will receive full credit for his negligence through reduction of the liability by the percentage attributable to his fault.
To give Yangming an additional right to contribution from Red Star for the percentage attributable to Mowen's negligence would be double counting. See Shiver v. Burnside Terminal Co., Inc., 392 F. Supp. 1078 (E.D.La.1975) (Rubin, J.).
Yangming contends it is supported by the Fifth Circuit's decision in Nutt v. Loomis Hydraulic Testing Co., Inc., 552 F.2d 1126 (5th Cir.1977). Nutt does indeed seem to support Yangming's position. But in my view, Judge Rubin's decision in Shiver, supra, and the dissenting opinion of Judge Hill in Nutt, correctly perceived the double counting and represent a better analysis. I do not believe Nutt is the law in this circuit.
Yangming also cites in support of its position cases allowing a shipowner contribution from a stevedore where the longshoreman was contributorily negligent. E.g., King v. Deutsche Dampfs-Ges, 523 F.2d 1042 (2d Cir.1975). Those cases concerned liability arising from a different basis, a special relationship including an implied contractual duty of the stevedore to the shipowner. See Italia Societa v. Oregon Stevedoring Company, 376 U.S. 315, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964). As that relationship and duty are not present here, their reasoning is inapplicable. See Nye v. A/S D/S Svendborg, 501 F.2d 376, 380 (2d Cir.1974). Furthermore, those cases have been rendered obsolete by changes in the statutory law. Pub.L. 92-576, § 18(a), 86 Stat. 1263 (1972), codified at 33 U.S.C. § 905(b).
Yangming's motion for contribution is denied.
_ _ _
Plaintiff Mowen moves for prejudgment interest. She claims such interest from the date of judicial demand. Her principal argument is that the action was in admiralty, and that "[i]n admiralty, prejudgment interest is the rule rather than the exception," McCormack v. Noble Drilling Corp., 608 F.2d 169, 175 (5th Cir.1979). Defendants argue that the action was at law, and that at law prejudgment interest is rarely awarded except on liquidated damages. See Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 592-94 (2d Cir.1961).
Prejudgment interest divides into two primary categories, one often called moratory interest (or interest on the claim), the other being interest on the recovery. See Barton v. Zapata Offshore Co., 397 F. Supp. 778 (E.D.La.1975) (Rubin, J.). Moratory interest is an element of damages which compensates the plaintiff for the time which has passed since he suffered his loss. Moore-McCormack Lines, supra. It would thus cover the period from the date of loss (or of judicial demand) to the verdict date. Interest on the recovery would accrue from the verdict date.
In my view the character of the loss suffered by plaintiff makes a subsequent addition of moratory interest inappropriate. All the damages awarded in this action were for future losses of support and nurture. Moratory interest is appropriate only as to losses suffered prior to the judgment. Petition of Marina Mercante Nicaraguense, S.A., 248 F. Supp. 15, 25-26 and n. 22 (S.D.N.Y.1965) (Weinfeld, J.); Nye v. A/S D/S Svendborg, 358 F. Supp. 145, 153 (S.D.N.Y.1973). The vast majority of the yearly losses from Dennis Mowen's death have not yet been incurred.[1]
*227 Furthermore, the manner in which plaintiff's financial expert and counsel asked the jury to calculate "add-back", to reimburse her for income taxes to be paid, presupposed receipt of the funds at the end of the trial. See opinion of December 3, 1982, supra, 552 F.Supp. at 378-79, Tr. 6318. To award prejudgment interest from an earlier date would allow plaintiff to benefit doubly from inconsistent positions.
Interest from the verdict date stands on a more favorable footing. Nonetheless there are substantial reasons why that date is inappropriate. In the first place, the amount to which plaintiff is entitled as a verdict was not finally determined until long after the jury's verdict. Plaintiff was given a choice of remittitur or new trial by reason of the excessiveness of the jury's verdict and misconduct of plaintiff's former counsel. Plaintiff eventually chose on January 18, 1983, to accept the remittitur, which is the date at which time the amount of the award was determined. The substantial interval of time between the jury verdict and the present has been consumed primarily by painful proceedings involving three separate instances of misconduct by plaintiff's then counsel.
A further significant factor is that plaintiff is very well compensated by the award, even after giving effect to the court-ordered reduction.
I conclude that interest from the date of the jury verdict should be denied. I find it appropriate, however, to award interest from the date of plaintiff's acceptance of the remittitur. Interest shall be at 9%.
NOTES
[1] There is also authority to the effect that moratory interest should not be added by the court to a jury verdict since it is assumed that the jury gave consideration to compensating the plaintiff for delay. Newburgh Land & Dock Co. v. Texas Co., 227 F.2d 732, 735 (2d Cir. 1955) (L. Hand, J.); Havis v. Petroleum Helicopter, Inc., 664 F.2d 54 (5th Cir.1981); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1052-53 (1st Cir.1973). See also Moore-McCormack Lines, supra, 295 F.2d at 594; Barton v. Zapata Offshore Co., 397 F. Supp. 778, 780 (E.D.La. 1975) (Rubin, J.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586944/ | 89 N.W.2d 881 (1958)
Ross M. GREEN, Petitioner and Appellant,
v.
Hon. B. F. WHIPPLE, County Judge of Wells County and Clerk of the District Court of Wells County, and Morris Larson, Sheriff of Wells County, North Dakota, Respondents.
No. 7747.
Supreme Court of North Dakota.
April 28, 1958.
Rehearing Denied May 23, 1958.
*882 Lord, Ulmer & Bair, Mandan, for appellant.
Leslie R. Burgum, Atty. Gen., Frank J. Kosanda, Asst. Atty. Gen., Samuel D. Krause, State's Atty. of Wells County, Fessenden, for respondents.
MORRIS, Judge.
On August 20, 1955 the then sheriff of Wells County swore to a criminal complaint charging Ross M. Green, the appellant herein, with manslaughter in the first degree in which it was alleged that Green willfully, wrongfully and unlawfully inflicted an injury upon one Richard Jorstad in such a manner as to result in his death while Green was engaged in the commission of a misdemeanor, to wit: reckless driving. This complaint was filed with Honorable B. F. Whipple, Judge of the County Court of Wells County, a county court of increased jurisdiction. A warrant was issued and Green was arrested and brought before the court on August 22, 1955. He demanded and the court acting as committing magistrate conducted a preliminary examination which resulted in an order holding Green for a trial at the next term of the district court in Wells County.
Green applied to the District Court of Wells County for a writ of certiorari which was granted. The county judge was ordered to certify the record, including a full transcript of proceedings, to the district court. The controversy was submitted to that court for hearing, whereupon the writ of certiorari was quashed, vacated and set aside and Green was ordered to appear in the district court for arraignment upon a criminal information. This appeal is taken from that order.
The review of the action of the county court was limited to a determination of whether that court in holding the defendant for trial pursued regularly the authority vested in it with respect to preliminary hearings in criminal matters. Section 32-3309, NDRC 1943; State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598; Peterson v. Points, 67 N.D. 631, 275 N.W. 867; Baker v. Lenhart, 50 N.D. 30, 195 N.W. 16; State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593.
Section 29-0718, NDRC 1943 provides:
"After hearing the evidence on behalf of the respective parties, in a preliminary examination, if it appears *883 either that a public offense has not been committed, or that there is not sufficient cause to believe the defendant guilty thereof, the magistrate shall order the defendant to be discharged."
Section 29-0720, NDRC 1943 provides that:
"If it appears from a preliminary examination that a public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate shall hold him to answer."
In State ex rel. Germain v. Ross, 39 N.D. 630, 170 N.W. 121, 122, this court said:
"In order to justify a committing magistrate in holding an accused for trial, it is not required that the evidence submitted be of such convincing character as to establish the guilt of the accused beyond a reasonable doubt. All that is required is that there be sufficient evidence to make it appear that a public offense has been committed and that there is sufficient cause to believe the accused guilty thereof."
In Wharton's Criminal Law and Procedure, section 1619, it is said:
"The preliminary hearing is informal in nature and is not a trial and is not governed by the rules of evidence and proof. The question of the defendant's guilt is not to be weighed or examined in the same manner as at a trial by jury. It is sufficient that there is reasonable ground for believing that the defendant is probably guilty, or that there is strong suspicion of his guilt. The preliminary hearing is distinct from an arraignment as there is ordinarily no opportunity to plead either guilty or not guilty at a preliminary hearing."
In California we find statutes similar in text and identical in meaning to our own with respect to the duty of a magistrate after preliminary hearing to discharge the defendant or hold him for trial. See Sections 871 and 872, West's Annotated California Codes, Penal.
One charged with crime has no constitutional right to a preliminary hearing. State v. Hart, 30 N.D. 368, 152 N.W. 672. The right to a preliminary hearing is purely statutory and is bounded by the statutory provisions pertinent thereto. Under our statutes, Sections 29-0718 and 29-0720, supra, the power of the magistrate to hold a defendant to answer is dependent on two things. First, it must appear that a public offense has been committed and second, it must appear that there is sufficient cause to believe the defendant guilty of that offense. The word "appear" is the key to the first requirement for holding the defendant to answer. Counsel for the defendant argues that the prosecution must make out a prima facie case in this respect, that it must "show" that a public offense has been committed. We do not believe that the word "appear" places such a heavy burden upon the prosecution. The most general synonym for "appear" is "seem". Webster's New International Dictionary, Second Edition. Or it may mean "seem likely". Funk & Wagnalls New Standard Dictionary. We do not construe our statutes to require that at a preliminary hearing the commission of a public offense be established with absolute certainty or beyond a reasonable doubt. In order to vest jurisdiction in the magistrate insofar as that phase of the hearing is concerned a probability is sufficient. To hold otherwise would place upon the magistrate, who is not always learned in the law, the burden of determining at a preliminary hearing whether certain acts constitute the commission of a crime, a decision similar to that required to be made by a trial court upon a demurrer to an information. Our statutes contemplate that such a determination will be made at the trial, not at the preliminary hearing.
*884 The second prerequisite to the right of the magistrate to hold a defendant to answer is the appearance of sufficient cause to believe the defendant guilty. This, according to decisions of the California courts, means that there must exist sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged. People v. Mitchell, 27 Cal. 2d 678, 166 P.2d 10; People v. Chapman, 93 Cal. App. 2d 365, 209 P.2d 121; Bentley v. Superior Court, 122 Cal. App. 2d 262, 264 P.2d 990.
"The `sufficient cause' required by section 872 means merely that there is a reasonable or probable cause for believing that defendant is guilty of the crime charged. `Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the accused's guilt." Robison v. Superior Court of the City and County of San Francisco, Cal., 316 P.2d 1, 3.
In Kansas under statutory provisions similar to ours it is held that:
"To justify binding over for trial a person accused of crime, it is only necessary at the preliminary examination that sufficient evidence be adduced to satisfy the examining magistrate that a crime has been committed and that the accused is probably guilty." Application of Windle, 179 Kan. 239, 294 P.2d 213, 214.
The evidence adduced at the preliminary hearing discloses that at about 8:30 in the evening of August 18, 1955 the sheriff of Wells County received a telephone call informing him that a motor vehicle accident had occurred on State Highway Number 7 about four miles east of the town of Hurdsfield. The sheriff proceeded to the scene of the accident, arriving there about one-half hour later. He found a grain truck standing on the south edge of the highway facing west. Lying in the road a few feet north of the truck was the body of Richard Jorstad. Another man, John Holzer, had received a broken leg and had been removed from the scene of the accident. Another vehicle described as a "wrecker" was standing on the south side of the road immediately behind the truck and behind the wrecker was a car belonging to the defendant Ross M. Green. Several other persons were at the scene of the accident. The sheriff ordered Green to get in the sheriff's car and wait while he conducted an investigation. He later took Green to the county seat. Officer Hanson of the State Highway Patrol arrived shortly after the sheriff. The highway at the scene of the accident was straight and level. The main traveled portion of the highway consisted of a black top surface about 25 feet wide. On each side of the black top were shoulders surfaced with an oil mat the width of which does not appear. The highway patrolman measured the distance from the hub of the right rear wheel of the truck to the center of the highway and found it to be exactly 8 feet.
At the time the accident happened Jorstad and Holzer were engaged in placing a tire on the right rear wheel of the grain truck. A witness, Andrew Klein, who had been driving another truck which was parked down in the ditch, testified to what happened. He was standing near the two men who were putting on the tire. He apparently had been assisting. He was asked:
"Q. Somebody told you that they were about through and you could go away then ? A. Yes. They had about two bolts to tighten up, and I asked them, `You don't need me any more?', and just as I walked away that car come. I walked down to the ditch and that car come.
"Q. Then you saw a car coming? A. Yes.
"Q. How far away was it? A. Not very fara little ways.
*885 "Q. Was it a block, a city block, away? A. Maybe one or two hundred rods, something like that. That is all what I seen.
"Q. Where were you when you saw this car coming? You were down in the ditch? A. Yes, I just walked away, and then I seen that car coming. I went down the ditch and I seen the car coming and then they piled on the boys."
This witness also described the position of the two men. Jorstad was down on his knees screwing bolts into the hub of the wheel. Holzer held the tire. Holzer was behind the truck with his leg sticking out. The approaching car ran over Jorstad and struck and broke Holzer's leg. When asked if Jorstad made any attempt to get away the witness answered,
"No, he could not get away at all. It was too fast, coming too quick."
On further examination he repeated substantially the same testimony as to where he was and what took place, stating,
"I told you I walked away. If I had stayed right there they would have hit me too. I was just lucky I got away, and the boys were going to finish it."
When he was asked if when he saw the car coming it was maybe 150 or 200 rods away, the witness answered:
"Yes. It was coming pretty fast too, you know."
Vincent Heintzelman, who was a passenger in the car, testified briefly. He said that Ross M. Green was driving the car at the time of the accident. After the accident they went on for about 75 or 100 feet, turned around on the road and came back.
The defendant Green argues that there is no evidence of a public offense much less the crime of first degree manslaughter charged to have been committed while the defendant was engaged in the commission of the misdemeanor of reckless driving. Reckless driving may be committed by driving carelessly and heedlessly in willful or wanton disregard of the rights or safety of others; or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another. State v. Tjaden, N.D., 69 N.W.2d 272.
The evidence points strongly to the commission of a homicide by the driver of the car and to Green being that driver. If the homicide occurred while the driver was engaged in committing the misdemeanor of reckless driving it is neither excusable nor justifiable and is therefore manslaughter. Section 12-2715, NDRC 1943; State v. Tjaden, supra. The commission of the misdemeanor of reckless driving as an element of the greater crime of manslaughter in the first degree as charged in the complaint need not be established to an absolute certainty or beyond a reasonable doubt. If it appears that there is a probability that the misdemeanor of reckless driving was being committed at the time of the accident that element of the crime charged has been sufficiently established to meet the requirements of proof at a preliminary hearing.
When the testimony of the witnesses Klein and Heintzelman is considered in the light of all of the circumstances surrounding the death of Richard Jorstad it is sufficient to warrant the magistrate in reaching the conclusion that a public offense appeared to have been committed and that there was sufficient cause to believe the defendant guilty of that offense. The district court therefore committed no error in quashing and vacating the writ of certiorari. The order appealed from is affirmed.
GRIMSON, C. J., and SATHRE, JOHNSON and BURKE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587150/ | 944 So.2d 162 (2006)
Richard FERRELL
v.
STATE of Alabama.
CR-05-0831.
Court of Criminal Appeals of Alabama.
May 26, 2006.
*163 Richard Ferrell, pro se.
Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
BASCHAB, Judge.
On May 4, 1987, the appellant, Richard Ferrell, pled guilty to first-degree escape. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c)(2), Ala.Code 1975. On September 7, 2005, the appellant filed a motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala. Code 1975. After the Alabama Department of Corrections ("DOC") responded, the circuit court summarily denied the motion. This appeal followed.
The appellant argues that the circuit court improperly determined that he was not eligible for reconsideration of his sentence.[1]
"There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2), see Prestwood[ v. State, 915 So.2d 580 (Ala.Crim.App.2005)]; and (3) the inmate is a `nonviolent convicted offender.' An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1."
Holt v. State, [Ms. CR-04-1250, March 3, 2006] ___ So.2d ___, ___ (Ala.Crim.App. 2006).
On September 15, 2005, the circuit court entered an order in which it found that the appellant satisfied the first two requirements set forth in Holt and ordered DOC to provide information it could use to determine whether the appellant was a nonviolent offender. After DOC responded, the circuit court denied the appellant's motion, stating in part:
*164 "Upon a review of the records supplied by the Department of Corrections the Court has determined that the Defendant was paroled on this case on June 15, 1992. His parole was revoked on July 5, 2000 and he was sent back to continue serving his sentence. He was paroled again on July 30, 2001. His parole was revoked again on January 31, 2005.
"Section 13A-5-9.1, Code of Alabama, 1975, as amended, states in part `. . . for consideration of early parole. . . .' This Court finds that the Defendant has already received the benefit of early parole and is therefore not eligible for relief."
(C.R. 57.)
Although the circuit court found that the appellant satisfied the first two eligibility requirements set forth in Holt, it did not determine whether he was a nonviolent offender. Rather, it determined that he was not eligible for reconsideration of his sentence because he had previously been paroled. Once eligibility has been determined, the fact that an offender has previously been paroled may be a relevant and material factor to consider when deciding whether to resentence the offender. However, it is not relevant when making the initial determination of whether the offender is eligible to have his sentence reconsidered. Because the circuit court erroneously based its determination that the appellant was not eligible to have his sentence reconsidered on the fact that he had previously been paroled, it erred when it denied his motion on that ground. Accordingly, we reverse the circuit court's judgment and remand this case to the circuit court for that court to set aside its order denying the appellant's motion for reconsideration and to consider the appellant's motion pursuant to this court's holding in Holt.
REVERSED AND REMANDED.
McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.
NOTES
[1] In his brief to this court, the appellant also argues that his sentence exceeds the maximum authorized by law because the circuit court allegedly erroneously used one of his prior theft of property convictions to enhance his sentence. However, his argument, which he raises for the first time on appeal, would be cognizable in a Rule 32 petition rather than in a § 13A-5-9.1 motion. Therefore, it is not properly before this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587014/ | 120 S.W.3d 129 (2003)
Susan DURHAM
v.
Timothy DURHAM.
No. CA 02-1102.
Court of Appeals of Arkansas, Division IV.
June 18, 2003.
*130 Hurley & Whitwell, by: Deborah Irene Pipkins, North Little Rock, for appellant.
Katherine Blackmon-Solis, Little Rock, for appellee.
ANDREE LAYTON ROAF, Judge.
This case involves a petition to relocate and a counterpetition for change of custody. Susan Durham appeals, arguing that the trial court erred in granting the change of custody to Timothy Durham based on her request to relocate with the parties' children to Texas, and in denying her motion to relocate. We agree that the trial court erred and reverse and remand.
Susan Durham and Timothy Durham were awarded joint legal custody of their two minor children in their divorce decree entered December 20, 2000. Susan was awarded primary physical custody, subject to Timothy's liberal visitation rights, which included every other weekend and two evenings a week, and child support. The divorce decree also contained a provision that the minor children not be removed from the jurisdiction on a permanent basis without obtaining the permission of the court.
On January 5, 2001, approximately two weeks after the divorce decree was entered, Susan filed a motion to relocate with the children to Houston, Texas, where she could live with her mother, seek employment, and possibly attend night school to earn a teaching certificate. Timothy filed an answer and a motion for contempt, alleging that he had been denied phone visitations with the children. Susan responded by filing a counter motion for contempt, alleging that Timothy had an overnight guest of the opposite sex with the children present, failed to transport the children to their activities during his visitation, had been late on numerous occasions during visitation, had not allowed Susan to keep the children when a babysitter was necessary during visitation, was in arrears on child-support payments, and finally that both parties were having difficulties with the visitation schedule then set by the court.
After a hearing in May 2001, the trial court entered an order on July 24, 2001, denying the motion to remove the children from the jurisdiction, finding that since the entry of the decree, there had not been a change in circumstances that would justify a modification. The court further determined that Timothy was behind in child support and ordered him to pay the child-support payments in advance.
In January 2002, Susan filed a second motion for permission to relocate with the children to Texas. She also filed a motion for modification of visitation and for an increase in child support. Timothy filed a response and a counterclaim requesting a change of custody. After a hearing on May 30, 2002, the trial court denied Susan's motion to relocate with the children. The court then determined that Timothy should be awarded custody of the children subject to Susan having the identical visitation that Timothy previously had been *131 granted. The court also ordered Susan to pay Timothy's counsel $1,250 in attorney's fees. Susan appeals from this order. In the case before us, the alleged difficulties with custody arose not from the alternating weekend visitation, holiday visitation, or summer visitation, but from the extra two evenings per week that Timothy was allowed to visit the children. Timothy testified that he had between eleven to eighteen meetings a month because of his employment with the Quapaw Council, Boy Scouts of America. These meetings were always held between Monday and Thursday nights. Susan accommodated Timothy's work schedule for a time before concluding that she and the children needed more structure in the visitation schedule. Susan testified that she was very often unable to schedule overtime with her work and that her children were severely limited in the after-school activities they could participate in because of Timothy's erratic work schedule. The trial court stated in its decision that "she lived with him. She knows that he has these meetings with his job. This isn't anything that has changed." However, although Timothy's professional responsibilities may not have changed, Susan's status as a stay-at-home mother had clearly changed to that of an employed single parent.
Susan first sought approval to relocate to Texas with the children shortly after the entry of the divorce decree. At that time, she was unemployed, and child support was her only means of income. Both Timothy's and Susan's family live in Texas, and Susan testified that she and the children would benefit from this extended family support if she relocated. The trial court denied the first request, based in part upon Susan's not making an effort to find a job in Arkansas.
Since the first relocation hearing, Susan has found a job working for Arkansas Blue Cross and Blue Shield making $8.60 per hour. With the child support she receives, Susan testified that she brought home between $1800-$2000 per month, that her rent was $550 per month and her utilities $400 a month, which left around $425 monthly disposable income to care for the children. During this time, Susan's mother came from Texas and lived with her to assist with child care. She also allowed Susan the use of her vehicle to travel to and from work. At the time of the second hearing, Susan's mother needed to return to Texas to care for Susan's father, who had recently had a heart-attack, and to maintain the family business. Without her mother to assist her, Susan testified that she would have to pay for child care and buy a vehicle. Susan testified that daycare for the youngest child and after-school care for the other minor children[1] would total about $580 a month. Neither Timothy nor Susan have family in Arkansas; both families reside within minutes of one another in Texas. Susan testified that when it became evident that her mother needed to return to Texas, she again sought permission to move. Susan testified that her mother had offered to let her and the children live in the family home rent free, and she stated that her mother had offered to take care of the children while Susan pursued a teaching degree at night and worked during the day. Susan's mother testified that Susan had two jobs available to her in Texas, one with the family business and the other with a company where her sister is employed.
Timothy testified that he opposed the relocation and that Susan's attempts to relocate had been stressful to him. He also testified that Susan was uncooperative in working out the week-day visitations. *132 However, Timothy also testified that both sets of grandparents resided in the area to which Susan sought to relocate and agreed that extended family was important. He further testified that he could not afford to exercise his weekend visitation if she did relocate because of the distance to Houston and that he would consider looking for a job in the Houston area if Susan were allowed to relocate. Timothy also admitted to using a babysitter periodically, when the divorce decree gave Susan first opportunity to care for the children if the occasion arose.
In its ruling, the court stated:
These parties agreed to their custody arrangement, and in the last 18 months they've been in litigation for a year of it. The original motion was filed, what, about two weeks after the divorce was final, but we didn't come to a hearing until May and the order wasn't entered until July. So, then, we have another six-month reprieve and she again files. I could have played the tape from the hearing last year and it would have been almost identical to the testimony she gave today. She's going to go work for her family. Again, second time, her mother didn't know about the job or what she was going to earn, exactly what happened January a year ago. She's made no investigationor I'll put it this way. She's made no application for any type of education down in that area. It's just something that she's talked to somebody about; it is available. It may be available to her; it may not be available to her. We don't know because she hasn't applied.
For six months, maybe longer, she worked at a temp agency, not looking for full time employment. She's worked at Blue Cross for three months.
I mean, this is going to be just a constant going on, her attempt to go back to Texas, and I don't want to attribute a lot of motivation to it. But it is clear to me that she is thwarting his relationship with these children. If it's not by the move, it's by putting out a calendarI mean, she lived with him. She knows that he has these meetings with his job. This isn't anything that has changed. It didn't change from the time that the decree was entered. He has one night a week that he could have consistent visitation, which is Monday, but she didn't like that because then she won't get to see the children three nights in a row twice a month, completely disregarding that if she moves to Houston how many nights a month he won't get to see his children.
She is not working with this custody agreement that she agreed to. Joint legal is not working. It's not working because she's not going to let it work, and I'm going to change custody to the father and he will be the sole custodian and, hopefully, I can get everybody out of litigation for a little bit of time so that some of this can settle down and the parties canI think they will work together better when apparently there's not this confusion about what joint legal custody means. If she wants to goif she wants to move to Texas, obviously, she can move to Texas. If she wants to go back to school here, he said he will work with her. I'll give her the same visitation that he had. I'm just going toI mean, the visitation schedule will stay exactly the way it is except that she'll have the visitation he had, which is two nights a week. They're going to have to resolve what those two nights a week are. She clearly won't be able to get the children after school if she's working until 4:30 or five. If she does go to school at night and they can work out a nighttime visitation, to where when he's got his meetings and try to arrange *133 his meetings around when she would be going to school, it's what they should have been doing for the last 18 months. But, you know, it's been this concerted effort to get to Houston, and it didn't matter what was going on here.
This is not one of those cases to where she has one of those wonderful education opportunities that started off in the Staab v. Hurst; that is, you know, she'd look for something else, she couldn't find it, it was a betterment. It's "this might be available down there. I might be able to do a little bit better if I went down there."
The trial court did not articulate why it would be in the best interests of the children to reside with Timothy. The court simply switched the custodial arrangement between the parties and instructed them to resolve the dispute over evening visitations on their own, despite testimony that Timothy had a job which requires a substantial amount of time on evenings and weekends.
On appeal, Susan first argues that the trial court erred in changing custody of the minor children to Timothy based upon her request to relocate. Susan also argues that the trial court erred in denying her request to relocate. Susan contends that the trial court did not clearly address the factors set forth in Staab v. Hurst, 44 Ark.App. 128, 868 S.W.2d 517 (1994), pertaining to relocation requests, and asks that this Court either reverse or remand for reconsideration of her motion pursuant to Staab. Timothy argues that under the rule stated in Hickmon v. Hickmon, 70 Ark.App. 438, 19 S.W.3d 624 (2000), Susan's failure at trial to request specific findings under Staab, supra, constitutes a waiver of those issues on appeal. He further contends that as a result of Susan's waiver, the only review available to her is a de novo review in which this Court will determine if the trial court's ruling was clearly erroneous.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark.App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark.App. 110, 986 S.W.2d 105 (1999). In custody cases, the primary consideration is the welfare and best interests of the child involved, while other considerations are merely secondary. Drewry v. Drewry, 3 Ark.App. 97, 622 S.W.2d 206 (1981). See Ark.Code Ann. § 9-13-101(a) (Supp.1999).
Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Watts v. Watts, supra. In a similar case, Carter v. Carter, 19 Ark.App. 242, 719 S.W.2d 704 (1986), this court found that there was no evidence to support a finding that the appellant was intentionally trying to prevent the child from seeing his father. Likewise, in this case there was no evidence that Susan attempted to move without permission of the court or that she intentionally denied or frustrated Timothy's *134 visitation. We agree that the trial court's decision to change custody under these circumstances was erroneous.
With regard to the trial court's denial of Susan's request to relocate, we note that the trial court did not have the benefit of the supreme court's decision in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). In reversing and remanding the trial court's denial of Ms. Hollandsworth's request to relocate out of state with the parties' two children, and grant of custody to Mr. Knysewski, the court overturned the holding of Staab v. Hurst, 44 Ark.App. 128, 868 S.W.2d 517 (1994), and announced a presumption in favor of relocation for custodial parents with primary custody, and factors to be considered by the trial court in relocation requests. The court stated:
Historically, this court has recognized the right of the custodial parent to relocate and to relocate with his or her children, and we adhere to that determination in this case. Today, we hold that relocation alone is not a material change in circumstances. We pronounce a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating.
The polestar in making a relocation determination is the best interest of the child and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.
In so holding, the supreme court did not indicate that its pronouncement should have only prospective application. However, since we have concluded that this case must be reversed and remanded, we direct the trial court to reconsider Susan's relocation request in light of the presumption in favor of relocation and the new factors listed in Hollandsworth.
Reversed and remanded.
PITTMAN and NEAL, JJ., agree.
NOTES
[1] Susan has a child from a previous marriage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/19143/ | UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 98-41454
______________________
JOAN W. MATHEWS,
Plaintiff-Appellant,
versus
LUFKIN INDEPENDENT SCHOOL DISTRICT; ANDRA SELF, Individually &
as a member of the Board of Trustees, Lufkin Independent School District; JOHN
KOCH, JR., Individually & as a member of the Board of Trustees, Lufkin
Independent School District; DOUG ASHBURN, Individually & as a member of
the Board of Trustees, Lufkin Independent School District; CHARLES
CROWSON, Individually & as a member of the Board of Trustees, Lufkin
Independent School District; STANLEY NEW, Individually & as a member of the
Board of Trustees, Lufkin Independent School District; LARRY KEGLER,
Member of the Board of Trustees, Lufkin Independent School District; JOE
DOUGLAS, III, Member of the Board of Trustees, Lufkin Independent School
District; PABLO TORRES, Individually & as Elementary School Principal, Lufkin
Independent School District,
Defendants-Appellees.
___________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(9:96-CV-479)
___________________________________________________________________
November 5, 1999
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges:
PER CURIAM:*
AFFIRMED. See 5th Cir. Rule 47.6.
*
Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule
47.5.4. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1586983/ | 944 So. 2d 541 (2006)
LAKELAND REGIONAL MEDICAL CENTER, INC., a Florida corporation, Petitioner,
v.
Lona Q. ALLEN, as Personal Representative of the Estate of Henry F. Allen, deceased, Respondent.
No. 2D06-3555.
District Court of Appeal of Florida, Second District.
December 27, 2006.
*542 Ronald J. Lamb and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Petitioner.
Stephen A. Barnes of Abrahamson, Uiterwyk & Barnes, Tampa, for Respondent.
VILLANTI, Judge.
Lakeland Regional Medical Center, Inc. (LRMC), petitions this court for a writ of certiorari to review the nonfinal order denying its motion to dismiss. The motion claimed that Lona Q. Allen, as Personal Representative of the Estate of Henry F. Allen, deceased (Allen), failed to comply with the presuit notice requirement of chapter 766, Florida Statutes (2004). We deny the petition because the trial court correctly ruled that Allen's complaint only sounded in simple negligence and, hence, the presuit notice requirement of chapter 766 does not apply.
Background and Procedural History
In a one-count amended complaint, Allen asserted a wrongful death action on behalf of the Estate of Henry Allen, which is framed as an action for "general negligence." Allen alleged that while her husband was hospitalized as a patient at LRMC in June 2005, LRMC served him a patient's meal, a turkey sandwich that was unfit for human consumption. Allen asserted that after consuming the sandwich, her husband developed a salmonella infection and subsequently died as a result of eating the sandwich. It is undisputed that the allegedly unfit sandwich was served to the husband in connection with his care and treatment as a patient at LRMC.
Approximately two months after her husband's death, Allen filed this suit against LRMC without complying, or even attempting to comply, with the procedures outlined in chapter 766, Florida's Medical Malpractice Act. The complaint was amended in May 2006, and LRMC timely filed and served its motion to dismiss the amended complaint, alleging Allen's noncompliance with the Act, in June 2006. The trial court heard the motion to dismiss on July 6, 2006, and the next day, entered an order denying the motion to dismiss and requiring LRMC to serve a responsive pleading to the amended complaint within twenty days. LRMC then filed for certiorari review in this court.
*543 Jurisdiction
A writ of certiorari is generally unavailable to review the denial of a motion to dismiss. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.1987). "[I]t is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari." State v. Pettis, 520 So. 2d 250, 252 (Fla.1988). One of those rare instances in which certiorari jurisdiction may lie is when chapter 766 presuit requirements are at issue. See Fassy v. Crowley, 884 So. 2d 359, 364 (Fla. 2d DCA 2004); St. Mary's Hosp. v. Bell, 785 So. 2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So. 2d 1297, 1297 (Fla. 1st DCA 1997).
Before a district court can grant relief from an erroneous interlocutory order, a petitioner must establish three elements: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal." Fassy, 884 So.2d at 363 (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. Id. Because, as already stated, jurisdiction is appropriate when determining whether chapter 766 presuit requirements are in issue and/or have been met, this court may now consider the first element of the analysis, to-wit, whether the trial court departed from the essential requirements of the law when it denied LRMC's motion to dismiss.
Analysis
Despite Allen's amended complaint being framed as a one-count action for general negligence only, LRMC argues that the amended complaint "clearly demonstrate[d] . . . an action for medical malpractice because it is wholly predicated upon LRMC's provision of food to a patient who was hospitalized and undergoing medical care." While we recognize that nomenclature alone does not determine the nature of a cause of action, the problem with this argument is that it overlooks the cause and effect inherent in a medical malpractice case.
If the cause of an injury is effected by negligent medical care then, by definition, the complaint sounds in malpractice. § 766.106(1)(a). Chapter 766 presuit notice is required because the breach of a certain medical standard of care allegedly occurred. § 766.106(2). Conversely, if the cause of the injury is effected by a factor other than a failure of proper medical care, no presuit notice is required. See Tenet St. Mary's Inc. v. Serratore, 869 So. 2d 729, 731 (Fla. 4th DCA 2004) (holding that chapter 766 is inapplicable to a suit brought by a patient for injuries sustained when a medical center employee allegedly kicked the patient's foot while attempting to kick the footrest of a chair); Lake Shore Hosp., Inc. v. Clarke, 768 So. 2d 1251, 1251 (Fla. 1st DCA 2000) (holding that chapter 766 is inapplicable to a suit brought by a patient for injuries she suffered after she slipped while walking from her hospital bed to the bathroom). Food poisoning constitutes such a factor.
Tainted turkey, unless accidentally given in conjunction with a prescribed dietary regimen, does not involve medical care. See Puentes v. Tenet Hialeah Healthsystem, 843 So. 2d 356, 358 (Fla. 3d DCA 2003) (holding that chapter 766 requirements were implicated when a hospital patient with specific hypoallergenic dietary needs was accidentally given non-hypoallergenic food). Because LRMC made no showing that Allen was prescribed a restricted diet or a diet that *544 involved a treatment modality, the tainted turkey consumption did not involve medical care. "Not every wrongful act by a medical provider is medical malpractice." Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468, 469 (Fla. 3d DCA 2006) (holding that burn injuries caused by scalding hot tea spilled by nurse onto patient constituted negligence claim, not a claim based on medical malpractice). Similarly, just because "conduct occurs in a medical setting does not necessarily mean it involves medical malpractice." Robinson v. W. Fla. Reg'l Med. Ctr., Inc., 675 So. 2d 226, 228 (Fla. 1st DCA 1996).
Our analysis is entirely consistent with the medical malpractice definition provided in section 766.106(1)(a) "a claim, arising out of the rendering of, or the failure to render, medical care or services." Thus, the key inquiry is whether the alleged injury occurred during the rendition of medical care or services. Generally, this determination hinges upon whether the treatment modality involved the application of medical skill or knowledge. Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184 (Fla.1992). Here, even though Allen consumed the turkey sandwich while a patient at LRMC, this occurrence was only incidental to the medical services provided and involved no medical skill or knowledge. For example, there is no dispute that Allen's claim does not involve a misdiagnosis on admission or afterwards or any improper treatment. Rather, this is a simple negligence case involving Allen's contracting of food poisoning after his hospital admission for an unrelated condition. Therefore, any liability of LRMC for Allen's demise is not determined under the medical negligence standard of care established in section 766.102(1). To conclude, Allen did not allege that LRMC's liability arose from any source other than the food prepared by its nonmedical staff. Indeed, the amended complaint alleged negligence in the improper maintenance, storage, and/or purchase of the ingredients used in preparing the food that was served to Henry Allen.
Because the trial court did not depart from the essential requirements of the law in denying LRMC's motion to dismiss, we deny the petition for writ of certiorari.
Petition denied.
SALCINES and DAVIS, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586985/ | 120 S.W.3d 556 (2003)
UNITED STATES FIDELITY & GUARANTY COMPANY, Crane Construction Company, and Ray and Sons Masonry Contractors, Inc.
v.
CONTINENTAL CASUALTY COMPANY.
No. 03-39.
Supreme Court of Arkansas.
June 26, 2003.
*557 Hardin and Grace, P.A., by: David A. Grace, Little Rock; and Faegre & Benson, LLP, by: Patrick J. O'Connor, Jr., James J. Hartnett, IV, and Michael B. Lapicola, *558 Minneapolis, MN, for appellants United States Fidelity & Guar. Co.
William F. Smith, Russellville, for appellant Ray & Sons.
Kilpatrick, Williams, & Meeks, L.P., by: Gene Williams, Little Rock, for appellee.
RAY THORNTON, Justice.
Appellant, Crane Construction [Crane], a general contractor, was hired by Wal-Mart to construct retail stores in several states. Appellant, United States Fidelity & Guaranty Company, [USF & G], issued several performance and payment bonds to Crane in connection with the projects.[1]
In September of 1992 and July of 1993, Crane entered into contracts with appellant, Ray & Sons Masonry [Ray], a subcontractor, to perform masonry work on several of the Wal-Mart stores. The contracts entered into by Crane and Ray contained an indemnification clause in which Ray agreed to:
protect, indemnify and hold Crane free and harmless from and against any and all claims, demands and causes of action of every kind and character (including the amounts of judgments, penalties, interest, court costs and legal fees incurred by Crane in defense of same arising in favor of governmental agencies or third parties (including employees of either party)) on account of taxes, claims, fines, debts, personal injuries, death or damages to property, and without limitation by enumeration all other claims or demands of every character occurring or in anywise incident to, in connection with or rising out of the work to be performed by subcontractor. Appellee, Continental Casualty Company, [Continental] provided Ray insurance for the project pursuant to a general liability policy.
In September of 1993, Crane sued Wal-Mart in federal court. In its complaint, Crane alleged breach of contract, fraud, and racketeering. In November of 1993, Wal-Mart counterclaimed, asserting breach of contract and negligence resulting from allegedly faulty and defective construction on various Wal-Mart projects completed by Crane. Ray had performed work on two of the allegedly faulty and defective Wal-Mart projects. In 1993, Wal-Mart also filed a suit against USF & G in federal court, alleging that it had breached its performance bond obligation for the projects.
In August of 1996, USF & G, Crane, and Wal-Mart entered into a settlement agreement that ended the federal litigation. In the settlement, USF & G made payments to Wal-Mart in exchange for the dismissal of Wal-Mart's claims against USF & G and Crane.
Thereafter, Crane and USF & G filed a complaint in Pulaski County Circuit Court against Ray and several of the other subcontractors who worked on the Wal-Mart projects, alleging breach of the indemnity agreement. Specifically, Crane and USF & G alleged that "the subcontractors ... breached their subcontract agreements with Crane ... in not indemnifying and holding Crane harmless from the various costs, expenses, and attorneys' fees incurred in the defense of the Wal-Mart claims in the [federal suit], and not providing a defense to Crane in regard to the alleged defective, nonconforming work, and in denying their obligation to indemnify and hold Crane harmless for all claims, demands, and causes of action relating to *559 the subcontractors' work on the projects and in failing to reimburse Crane and plaintiffs for costs incurred in settlement of Wal-Mart's claims relating to the subcontractors' defective and nonconforming work on the projects." The complaint also alleged causes of action for breach of contract and negligence.
In 2001, a trial was held on the complaint. The case was submitted to the jury with respect to Ray solely on the issue of whether there was a breach of contractual indemnity. The jury found that Ray was liable to USF & G and Crane for failing to indemnify Crane and USF & G against Wal-Mart's claims. The jury awarded USF & G and Crane $1.5 million in damages.
In August of 2001, Continental Casualty Company, who had defended Ray under a reservation of rights, filed a declaratory judgment action in the Pulaski County Circuit Court seeking to have the circuit court determine whether its policy issued to Ray provided coverage for payment of the judgment awarded in favor of Crane and USF & G.[2]
In March of 2002, Continental filed a motion seeking summary judgment. In its motion, Continental argued that "the general liability policy issued by Continental Casualty Company to Ray and Sons Masonry Contractors, Inc., and in effect at the time of the events leading to the judgment in USF & G v. Ray and Sons Masonry, supra, does not provide coverage for the judgment."
In April of 2002, USF & G and Crane filed a motion seeking partial summary judgment. In their motion, USF & G and Crane argued that they were entitled to summary judgment because Ray's defective work caused Wal-Mart to suffer property damage. They further argued that this type of property damage was covered in Continental's policy.
In September of 2002, a hearing was held on the parties' motions. After hearing arguments from the parties, the trial court granted Continental's motion for summary judgment. It is from this order that appellants appeal. We reverse the trial court's order and remand this matter to the circuit court for resolution of unresolved factual issues.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
In their first point on appeal, appellants argue that the trial court erred in granting appellee's motion for summary judgment.[3] In granting appellee's motion, the trial court found "there was no duty on the part *560 of Continental Casualty Company under its comprehensive general liability insurance policies to indemnify Ray and Sons Masonry Contractors and others for a judgment entered on the 26th day of October 2001, in the matter of United States Fidelity & Guaranty Company and Crane Constriction Company v. Ray and Sons Masonry Contractors." Appellants contend that the trial court's finding was erroneous because "there is coverage under the policy for at least a portion of Crane's and USF & G's judgment against Ray & Sons in the underlying action." Appellee argues that the trial court properly granted its motion for summary judgment because the judgment entered against Ray in the underlying suit was for breach of an indemnity agreement, a matter that is not covered by the policy.
To determine whether summary judgment was properly entered, we must ascertain whether the policy issued to Ray by Continental provided coverage for the judgment entered against Ray in the underlying suit. Before evaluating the language of the policy issued by Continental to Ray, it is important to review our rules governing the interpretation of insurance contracts. We outlined these rules in Smith v. Prudential Property & Casualty. Ins., 340 Ark. 335, 10 S.W.3d 846 (2000), where we wrote:
An insurance policy is to be construed strictly against the insurer, who chooses its language. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.
This court has also held that it is a principle of insurance law established in our state that provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it would be the duty of the court to do so. Drummond Citizens Ins. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979). It is also a cardinal rule of insurance law that a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer or, as more fully stated, if the language employed is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Id.; see also Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993).
Smith, supra.
Cognizant of the foregoing principles, we turn to the relevant policy language in the case sub judice. The policy provides:
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damages which this insurance applies.
* * *
b. This insurance applies to bodily injury and property damage only if:
(1) The bodily injury or property damage is caused by an occurrence that takes place in the coverage territory; and
(2) the bodily injury or property damage occurs during the policy period.
Having reviewed the relevant policy language, we turn to the facts in the case now before us. In this case, judgment was entered against Ray in an underlying action between Ray and Crane. The nature of that judgment was breach of a contractual indemnification agreement *561 by Ray's failure to indemnify Crane in its suit with Wal-Mart. The policy issued by Continental to Ray provides coverage for "damages" that Ray was "legally obligated to pay" based on "occurrences" of "bodily injury" or "property damage." Because the nature of Ray's liability in the underlying action was based on an indemnification agreement, and because the policy issued by Continental did not provide coverage for a breach of contract, Continental contends that summary judgment was properly entered in its favor. However, the coverage issue is not resolved by limiting our analysis to these policy provisions. Specifically, appellants argue that Continental's policy expressly provides coverage for damages imposed based on an indemnity action. The language identified by appellants as providing such coverage is as follows:
2. Exclusions
This insurance does not apply to:
b. Bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract agreement. This exclusion does not apply to liability for damages:
(1) assumed in a contract or agreement that is an `insured contract,' provided the bodily injury or property damage occurs subsequent to the execution of the contract or agreement.
* * *
6. Insured contract means:
f. That part of any other contract or agreement pertaining to your business... under which you assume the tort liability of another party to pay for bodily injury or property damage to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
Based on this language, appellants argue that the indemnification provisions of the subcontracts were "insured contracts," which Continental agreed to cover. We agree with appellants' contention.
According to Douglas Richmond and Darren Black, in their article Expanding Liability Coverage: Insured Contracts and Additional Insureds, 44 Drake L.Rev. 781 (1996), "insured contracts" have two elements. First, "the contract or agreement must expressly provide for the insured's assumption of the other party's liability." "Second, the insured must assume the tort liability of another." Id. After reviewing the language in the indemnification provisions of the subcontracts, we conclude that they were "insured contracts." We conclude that by signing the indemnification provisions of the subcontracts, Ray agreed to assume the relevant tort liability of Crane.
Having concluded that Ray entered into an insured contract with Crane, we must next determine whether the liability Crane incurred as a result of its suit with Wal-Mart is covered by Continental's policy. To make this determination we must look to the basis of Wal-Mart's claims against Crane. Wal-Mart sought to recover from Crane based on allegations of negligence and breach of contract. These claims were dismissed after a settlement was entered into by the parties. We do not know the basis of the settlement. Continental's policy provides coverage for "insured contract" "under which you assume the tort liability of another party...." This policy language does not cover indemnification for contractual breaches. Because we do not know whether Crane settled with Wal-Mart based on tort claims or contract claims, we also do not know whether the "insured-contract exception" applies. Without resolving the issue of whether the exception *562 applies, it is impossible to ascertain the extent of Ray's coverage under Continental's policy. Based on this unresolved factual question, we reverse the trial court and remand the case for further development of the issue.
Before leaving this issue, we note that appellee argues that the outcome of this case is "controlled" by Unigard Security Ins. Co. v. Murphy Oil, 331 Ark. 211, 962 S.W.2d 735 (1998). In Unigard, we held that an insurance policy did not provide coverage for a judgment entered against an insured when the nature of the insured's liability arose from a contractual breach of a lease agreement. This holding is not dispositive on the issue raised in the present case. The primary distinction in the two cases is the nature of the liability incurred by the insured. In Unigard, a judgment was entered against the insured for breaching a lease agreement. The insurance policy at issue in that case did not provide or anticipate coverage for breaching lease agreements. For that reason, requiring Unigard to satisfy a judgment resulting from such a breach would be outside the policy's coverage. These facts should be contrasted with the facts in the case now on review. In the present case, the judgment entered against Ray was for breaching an indemnification agreement. This agreement was an "insured contract" and Continental's policy provided coverage for damages which resulted from insured contracts. Accordingly, requiring Continental to satisfy a judgment stemming from breaching such an agreement is expressly within the policy coverage. We conclude that the facts and policies at issue in Unigard are distinguishable from the case sub judice.
Appellants also contend that we should reverse the trial court and find as a matter of law that "there is coverage under the policy for at least a portion of Crane's and USF & G's judgment against Ray & Sons in the underlying action." Appellants' argument is based upon policy language which provides coverage for "an occurrence" that leads to "property damage." The policy provides:
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damages which this insurance applies.
* * *
b. This insurance applies to bodily injury and property damage only if:
(1) The bodily injury or property damage is caused by an occurrence that takes place in the coverage territory; and
(2) the bodily injury or property damage occurs during the policy period.
* * *
9. Occurrence means an accident, including continuous and repeated exposures to substantially the same general harmful conditions.
* * *
12. Property damages means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss shall be deemed to occur at the time of the occurrence that caused it.
As the appellants correctly note, "to establish coverage under Continental's Policy, USF & G and Crane are required to establish that the damages for which Ray & Sons is liable: (1) were due to an occurrence that (2) resulted in property damage." First, we must consider *563 whether there was an occurrence. Appellants argue that the "occurrence" that gave rise to the property damage was Ray's defective workmanship on the Wal-Mart projects. The policy defines an "occurrence" as "an accident." We have defined an "accident" as "an event that takes place without one's foresight or expectation-an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected." Continental Ins. Co. v. Hodges, 259 Ark. 541, 534 S.W.2d 764 (1976) (citing 44 Am. Jur.2d Insurance § 1219 (1969)). Because the policy has defined "occurrence," and because we have defined "accident," we conclude that the remaining fact question which must be resolved in this case before coverage can be determined is whether Ray's workmanship on the Wal-Mart projects constituted an "accident."[4] Accordingly, we conclude that upon remand this issue must be resolved.
Having concluded that this case must be reversed and remanded, we decline to address the remaining alternative points raised by appellants USF & G and Crane. However, we will consider a separate point raised by appellant Ray in which it is argued that summary judgment was not proper because there are outstanding factual questions regarding representations made by Continental's agent to Ray concerning policy coverage. In its response to Continental's motion for summary judgment, Ray asserted:
There is a genuine issue of fact as to whether defendant Ray and Sons Masonry Contractors, Inc. got the coverage that they thought they had purchased. Defendant is of the opinion they purchased such coverage. Continental is still defending and appealing on behalf of Ray and Sons Masonry Contractors, Inc.
This assertion was not supported by accompanying affidavits or other evidence. Rule 56 of the Arkansas Rules of Civil Procedure provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Id.
With regard to Ray's contention that summary judgment was also not proper because there were unresolved fact questions regarding representations made by Continental's agents, we note that Continental submitted a motion for summary judgment that was supported by a brief *564 and numerous exhibits. In order to raise a fact question on this point, Ray was required by Rule 56 to offer more than mere allegations of factual disputes. Ray failed to properly refute Continental's motion for summary judgment on this point and for that reason we do not reverse the trial court on this issue. However, as previously discussed, the grant of summary judgment must be reversed on the basis of questions of fact that remain outstanding on the issues of whether coverage was triggered by the "insured contract exception" or the possibility of an "occurrence" of property damage.
Affirmed in part; reversed and remanded in part.
CORBIN, J., not participating.
NOTES
[1] We note that we have considered other aspects of this case in previous appeals. See United States Fidelity & Guaranty Co. v. A & A Masonry, 337 Ark. 366, 991 S.W.2d 111 (1999); Ray & Sons Masonry Contractors v. United States Fidelity & Guaranty Co., 353 Ark. 201, 114 S.W.3d 189 (2003).
[2] The complaint seeking declaratory judgment was amended, but not materially changed in February of 2002.
[3] We note that appellants also argue that the trial court erred when it denied their motion for partial summary judgment. We do not review the denial of summary judgment motions. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993).
[4] As the parties note, there is a split in the jurisdictions over whether defective workmanship is an accident and therefore an "occurrence" which is covered under the terms of an insurance policy. See Heile v. Herrmann, 136 Ohio App. 3d 351, 736 N.E.2d 566 (1999); Pursell Construction, Inc. v. Hawkeye-Security Ins. Co., 596 N.W.2d 67 (1999); Standard Fire Ins. Co. v. Chester-O'Donley & Associates, Inc., 972 S.W.2d 1 (1998), R.N. Thompson & Associates, Inc. v. Monroe Guaranty Ins. Co., 686 N.E.2d 160 (1997); United States Fidelity & Guaranty Corp. v. Advance Roofing & Supply Co., Inc., 163 Ariz. 476, 788 P.2d 1227 (Ct.App.1989) (all holding that faulty or defective workmanship is not an accident and therefore not an "occurrence" under the terms of an insurance policy). But see Fidelity & Deposit Co. of Maryland v. Hartford Casualty Ins. Co., 189 F. Supp. 2d 1212 (D.Kan.2002); Colard v. American Family Mutual Ins. Co., 709 P.2d 11 (Colo.App.1985) United States Fidelity & Guaranty Co. v. Bonitz Insulation Co. Of Alabama, 424 So. 2d 569 (1982) (all holding that faulty or defective workmanship is an accident and therefore an "occurrence" under the terms of an insurance policy). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587003/ | 120 S.W.3d 166 (2003)
Charlotte STRICKLAND
v.
PRIMEX TECHNOLOGIES, et al.
No. CA 02-778.
Court of Appeals of Arkansas, Divisions I, IV.
June 25, 2003.
*167 Robert L. Depper, Jr., El Dorado, for appellant.
Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Norwood Phillips, El Dorado, for appellees.
JOHN MAUZY PITTMAN, Judge.
The appellant in this workers' compensation case filed a claim for benefits asserting that she contracted an occupational disease while employed by appellee Primex Technologies. The Commission denied her claim on the basis of its finding that she failed to give the statutorily-required written notice to her employer within ninety days of the time she first knew or should have known that she had contracted an occupational disease. For reversal, appellant contends that the Commission erred in finding that her failure to give notice of an occupational disease was not excused. We affirm.
Arkansas Code Annotated § 11-9-603(a)(2)(A) (Repl.2002) provides that written notice of an occupational disease shall be given to the employer by the employee, or someone on his behalf, within ninety days after the first distinct manifestation thereof. We have held that the ninety-day statutory period does not begin to run until the employee knows or should reasonably be expected to know that he is suffering from an occupational disease. See Quality Service Railcar v. Williams, 36 Ark.App. 29, 820 S.W.2d 278 (1991). Furthermore, failure to give notice shall not bar any claim if the employer had knowledge of the injury; if the employee had no knowledge that the condition or disease arose out of and in the course of his employment; or if the Commission excuses the failure on the grounds that, for some satisfactory reason, the notice could not be given. Ark.Code Ann. § 11-9-701(b)(1) (Repl.2002).
In the present case, appellant became ill at work after exposure to aluminum powder in October 1998, but never provided her employer with anything that could be considered written notice until March 2000. The Commission found that appellant knew or should have known in October 1998 that she was suffering from an occupational disease. This is borne out by the October 14, 1998, report of appellant's physician, Dr. Sarnicki, to the effect that appellant was apparently exposed to aluminum dust and that her condition resolved after she was removed from exposure to it. In addition, the Commission *168 relied on testimony by the appellant indicating that she knew that her claim was cognizable under workers' compensation in October 1998. The Commission also found credible and relied on the testimony of Sharon Lemons of Primex's personnel department, who stated that appellant asked her to file a disability claim for appellant following the incident, but never informed Lemons that appellant's condition was related to exposure to aluminum dust or asked her to file a worker's compensation claim relating to the aluminum dust incident.[1] The issue is therefore one of credibility, and we have frequently recognized that it is the function of the Commission, and not of this court, to determine credibility of witnesses and the weight to be given their testimony. Horticare Landscape Management v. McDonald, 80 Ark.App. 45, 89 S.W.3d 375 (2002). Questions of weight and credibility are, instead, within the sole province of the Workers' Compensation Commission, which is not required to believe the testimony of the claimant or of any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Wal-Mart Stores, Inc. v. Sands, 80 Ark.App. 51, 91 S.W.3d 93 (2002); Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002).
Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Emerson Electric v. Gaston, 75 Ark.App. 232, 58 S.W.3d 848 (2001). Viewing the evidence, as we must, in the light most favorable to the Commission's findings and giving the testimony its strongest probative force in favor of the action of the Commission, id., we think that reasonable minds could conclude that appellant knew in October 1998 that she suffered from an occupational disease, but that appellee did not know that appellant suffered from an occupational disease, and we therefore must affirm.
Affirmed.
STROUD, C.J., and ROBBINS and NEAL, JJ., agree.
GLADWIN and BAKER, JJ., dissent.
KAREN R. BAKER, Judge, dissenting.
Appellant suffers from an occupational disease, and appellees do not dispute that her condition was caused by her employment. They merely claim that she is prevented from recovering benefits because she failed to give written notice to her employer that she was suffering from an occupational disease within ninety days of the first manifestation of the disease and that her failure was not excused.
In this case, the Commission found that the employee should have been aware that her disease was occupational, but, at the same time, found that the employer did not have sufficient knowledge of the causal connection between appellant's work and her disease to excuse the notice requirement. Under the facts of this case, these two simultaneous findings are irreconcilable.
The Commission found that appellant knew or should reasonably be expected to be aware of the extent or nature of her injury in October 1998. On October 5, appellant's treating physician diagnosed "questionable reactive airway disease secondary to environmental exposure." On October 7, the doctor noted: "There is *169 some question of whether it is located at her work that it may be causing her to have some wheezing and shortness of breath episodes." Then on October 14: "She is apparently exposed to aluminum dust and upon removal that resolved." Appellant remained off work four or five weeks after this exposure to the aluminum dust.
The employer's human resource director testified that she was responsible for processing workers' compensation claims, insurance, and other paper work related to employees' injuries and illnesses. She stated that when appellant was off work for the five weeks, she filed an illness report and she understood that appellant was ill with bronchitis-type symptoms. She also helped appellant fill out her disability form, which she believed was appropriate, related to appellant's condition. Then in 1999, she filed another illness report. The doctor's report at that time said that appellant's condition was work related, so she filed a worker's compensation claim on behalf of appellant.
Our analysis must focus upon whether the employee had knowledge that she had a claim cognizable under workers' compensation law. See Desoto, Inc. v. Parsons, 267 Ark. 665, 590 S.W.2d 51 (Ark.App. 1979) (employee had not been in position to give notice of injury because she had not been aware, until notified by her union, that she had a claim cognizable under Workers' Compensation Law and that employer and carrier had not been prejudiced by failure of notice).
In this case, both the employee and the employer were aware of the employee's physical impairment in October of 1998, and the employer assisted the employee in completing the necessary insurance forms and documentation concerning her disability. As the employer's human resource director testified, when she filed the subsequent illness report in 1999, the doctor's report said the employee's condition was work related so she filed a worker's compensation claim. On these facts, either the employer and the employee both had knowledge that the injury was work related, or neither had knowledge. I would reverse.
GLADWIN, J., joins.
NOTES
[1] As the dissent notes, Ms. Lemons did subsequently assist appellant in filing a claim for compensation, but this claim related to a separate incident that took place on October 27, 1999, over one year after appellant learned that she suffered from a compensable occupational disease. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587066/ | 120 S.W.3d 160 (2003)
JIM WALTER HOMES; Travelers Insurance
v.
Johnny BEARD.
No. CA 02-903.
Court of Appeals of Arkansas, Divisions I, IV.
June 25, 2003.
*161 Anderson, Murphy & Hopkins, L.L.P. by Scott Provencher, Little Rock, for appellants.
One brief only.
KAREN R. BAKER, Judge.
Appellee was employed by appellant Jim Walter Homes from 1980 until he sustained a compensable injury to his back on *162 October 3, 1983. He was injured while moving particle board that was over his head; he reached, bent back too far, and experienced stabbing pain in his back and down his left leg.
Three hearings were conducted on this claim. Prior to the hearing that is the subject of this appeal, the first of these hearings was conducted on April 22, 1985, at which time the issue was appellee's entitlement to continued temporary total-disability-benefits subsequent to February 26, 1985, or whether appellee had reached the end of his healing period. During the April 22, 1985, hearing, appellee presented testimony regarding his continued complaints of pain attributable to the compensable injury, medication taken relative to his symptoms and complaints, and his inability to engage in gainful employment as a result of his injury. Appellee's principal treating physician was Dr. John Lohstoeter, an orthopedic physician. In addition to Dr. Lohstoeter, appellee was seen and/or treated by Dr. Alfred Kahn, a diagnostic internist; Dr. Carlos Arazo, a neuropathologist; and Dr. Cagle Harrendorf, a neuropsychiatrist. Dr. Lohstoeter opined that the appellee's preexisting osteoarthritis was asymptomatic prior to the October 3, 1983, compensable injury and noted some nerve root irritation and some abnormal change stemming from the lumbar disc were present at L4-5 and S1 elements.
On March 24, 1988, a second hearing was conducted on the issue of appellee's entitlement to permanent total disability benefits. At this hearing, it was determined that while appellee had not undergone surgery relative to his October 3, 1983 compensable injury, he had been hospitalized on six different occasions for treatment for his injury. He had continued treatment with Dr. Lohstoeter, who noted that while appellee had many inflammatory changes, it was his opinion that the cause of the injury was the same, and as such, it was a post-traumatic or post-injury syndrome of inflammation. During the course of the March 24, 1988 hearing, appellee testified regarding limitations on his physical activities, which included standing, lifting, bending and walking. He attributed these limitations to his compensable injury. Specifically, he attributed the limitations to the constant pain he experienced as a result of the injury. He was found to have been permanently and totally disabled as a result of the October 3, 1983, compensable injury. This decision was affirmed by this court in an August 29, 1990, opinion.
On December 13, 1993, a hearing was conducted to evaluate appellants' claim that there had been a change in appellee's condition that warranted a modification of the previous order of permanent total disability.
Dr. Scott Bowen, a Little Rock orthopedic physician, began treating appellee for his compensable injury after Dr. John Lohstoeter retired. Dr. Bowen first saw appellant in January 1989, and he diagnosed appellee's complaint as that of chronic lumbosacral strain with secondary degenerative changes at the lower L-5, S-1 level. During the December 13, 1993 hearing, evidence disclosed that appellee was being treated by Dr. Henry Good, a Little Rock psychiatrist, who was also his principal treating physician. Appellee had initially been seen by Dr. Good on September 13, 1985, at the request of Dr. John Lohstoeter. Dr. Good prescribed medication for appellee that included Wellbutrine, Lorcet Plus, Soma, and Halcyon. Appellee was also prescribed Feldene, for pain. Dr. Good testified that the claimant suffered from chronic pain syndrome and depression.
*163 Appellee was also seen by Dr. Reginald Rutherford, a Little Rock neurologist, pursuant to a referral by Dr. Bowen. While under the care and treatment of Dr. Rutherford, appellee underwent a course of treatment for myofascial release, comprising three sets of trigger point injections with stretch and spray physical therapy. The treatment regimen of Dr. Rutherford failed to relieve appellee's chronic pain. Ultimately, it was held that appellee's condition had not changed and that he remained permanently and totally disabled.
Appellee has had ongoing and continuing medical treatment since his October 3, 1983, compensable injury. He is currently being treated with Dr. Raymond Remmel, a Little Rock psychiatrist, for his injury. Appellee noted that in his sessions with Dr. Remmel, he continued to relate that his back was getting worse in terms of pain and symptoms, although he had not suffered a subsequent injury after October 3, 1983. Appellee also observed that since his accident, despite the fact that he is taking medication and physical therapy, he has not experienced a complete relief from pain. His current medication includes Vicoprofen, Soma, Serax, and Desyrel. He also takes Quinine for leg cramps. Nevertheless, his symptoms have begun to progressively worsen.
Appellee stated that he continues to experience sharp pain in his lower back and in both legs, the left more so than the right. Additionally, he explained that he has experienced pain and some numbness in his legs and feet. Appellee testified that when he related his complaints of increased pain in his low back, legs, and feet to Dr. Remmel, he was referred to Dr. Richard Peek, a Little Rock orthopedic surgeon. Dr. Peek then referred him to a diagnostic clinic for possible treatment, however, the insurance company denied the claim. Appellee continued treatment with Dr. Remmel, who referred him back to Dr. Peek, who in turn, referred him to Dr. Robert Valentine. Dr. Valentine performed additional diagnostic tests and has recommended a procedure, IDET, to address appellee's pain. Appellants controverted the compensability of benefits relative to the IDET procedure including treatment under the care of Dr. Robert Valentine.
Appellants argue that the decision of the Commission to award appellee an IDET procedure is not supported by substantial evidence. This court reviews decisions of the Workers' Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark.App. 24, 832 S.W.2d 869 (1992). In determining the sufficiency of the evidence to support the findings of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence. Id.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Farmers Cooperative v. Biles, 77 Ark. App. 1, 4-5, 69 S.W.3d 899, 902 (2002). The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000).
*164 Appellants argue that appellee is sixty-five years of age and suffered a compensable injury over nineteen years ago. He has never had spinal surgery and has not been hospitalized for any back problem since the previous hearing held in 1993. Appellants' argument and citations to medical records can be summarized in one line from their briefs: "Clearly, this is the picture of a man ... who suffered from degenerative changes throughout his body." Appellants do not contend on appeal that the IDET procedure is an improper mechanism for addressing the annular tears at L4-5 and L5-S1. Their contention is that the tears were not caused by an event which occurred nineteen years earlier. They also contend that the only medical evidence to support the Commission's finding is an August 4, 2000, progress note from Dr. Remmel that states: "It is more likely not a new injury and in fact just a progression of the disease process." They argue that the note is ambiguous and cite to recent medical records from Dr. Rutherford that appellee's MRI imaging "represents a progressive degenerative change consistent with aging."
Despite appellants' contentions, the Commission's findings are supported by substantial evidence. In reaching its decision, the Commission found that no evidence in the record reflected that appellee had sustained a new injury relative to his low back since the compensable injury of October 3, 1983. The Commission noted the fact that appellee suffered from degenerative disc disease prior to the October 3, 1983, injury and that appellee's initial treating physician specified that the same was asymptomatic prior to the compensable injury. A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Comm. v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); St. Vincent Medical Ctr. v. Brown, 53 Ark.App. 30, 917 S.W.2d 550 (1996). In workers' compensation law, the employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Nashville Livestock, supra.; Ark. Power & Light, Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959).
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arise out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own negligence or misconduct.
Home Ins. Co. v. Logan, 255 Ark. 1036, 505 S.W.2d 25 (1974).
Accepting Dr. Rutherford's current diagnosis that the present tears identified in appellee's disc are the product of aging, the same is predicated upon a natural consequence growing from the October 3, 1983, compensable injury that was asymptomatic before that injury was sustained.
Accordingly, sufficient evidence supports the Commission's decision, and we affirm.
STROUD, C.J., GLADWIN, ROBBINS, and NEAL, JJ., agree.
PITTMAN, J., dissents.
JOHN MAUZY PITTMAN, Judge, dissenting.
I dissent. This case should be reversed because the Commission's opinion is premised on facts not in evidence and is not supported by substantial evidence.
The appellant was already suffering from a nonwork-related, preexisting degenerative disc disease when he sustained *165 a compensable back injury in 1983.[1] He is permanently and totally disabled as a result of his compensable injury, but he has not been hospitalized for any back problems since 1993. Appellant is now sixty-four years old.
The current appeal involves a claim for additional medical benefits in the form of an IDET procedure to treat annular tears that arose subsequent to appellant's compensable injury. The issue at the hearing was whether this procedure was reasonably necessary treatment for appellant's compensable injury, as opposed to his preexisting back condition. The Commission decided that the IDET procedure was reasonably necessary for treatment of the compensable injury. It expressly based this finding on the testimony of appellant's psychiatrist, Dr. Remmel. The Commission stated:
Dr. Remmel assessed the claimant's increase[d] complaint relative to his low back as a progression of his prior injury. [Emphasis added.]
There are two problems with this finding. First, it is not factually correct. Dr. Remmel did not say that appellant's increased symptoms were in any way the result of his injury. Instead, Dr. Remmel said only that appellant's problem was most likely "a progression of the disease process." (Emphasis added.) The disparity between Dr. Remmel's undisputed actual statement and the Commission's finding regarding that statement is alone enough to require reversal. Administrative decisions may only be affirmed on the agency's findings and for the reason stated by the agency, even where there is evidence in the record that would support the agency's determination on a different basis. See generally Al-Co Properties, Inc. v. Department of State, 88 A.D.2d 88, 452 N.Y.S.2d 947 (N.Y.App.Div.1982). Consequently, our function in reviewing workers' compensation cases is limited to determining whether the Commission's findings as to the existence or non-existence of essential facts are or are not supported by the evidence. See Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979); Wright v. American Transportation, 18 Ark.App. 18, 709 S.W.2d 107 (1986). Simply put, we do not make our own findings of fact in workers' compensation cases, or affirm on the ground that the Commission reached the right result for the wrong reason. See Cook v. Alcoa, 35 Ark.App. 16, 811 S.W.2d 329 (1991). Instead, we simply decide whether the facts found by the Commission are supported by the evidence, and whether those facts support the Commission's decision. Here, the facts found by the Commission regarding Dr. Remmel's statement are not supported by the evidence.
Second, Dr. Remmel's actual statement does not support an award of benefits. Appellant was required to show that the treatment was reasonably necessary for his compensable injury, as opposed to his preexisting back disease. Dr. Remmel's statement that appellant's current condition is a progression of the disease process, without identifying what he meant by "disease," does nothing to resolve this crucial question. It is instructive to compare the situation presented in the present case to that in Tuberville v. International Paper Co., 28 Ark.App. 196, 771 S.W.2d 805 (1989), aff'd, International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990), which the Commission cited. In *166 Tuberville, there was extensive and definite medical testimony to show that Mr. Tuberville's present condition was causally related to his compensable injury. This record in the present case contains no substantial evidence to support the existence of the necessary causal connection.
In the absence of such evidence, the majority can only arrive at its result by giving appellant the benefit of the doubt with respect to the question of causation. This is patently wrong. It is true that, at the time appellant sustained his compensable injury in 1983, the Commission did give the benefit of the doubt to claimants in making factual determinations. See Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). However, this practice was eliminated by Act 10 of 1986, § 10, which provided that, "[i]n determining whether a party has met the burden of proof on an issue, administrative law judges and the Commission must weigh the evidence impartially and without giving the benefit of the doubt to either party."[2] This rule is applied retroactively to any case heard by an administrative law judge or the Commission after the effective date of the Act in June 1986, regardless of the date of the claimant's injury. Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); see also Marrable v. Southern LP Gas, Inc., 25 Ark.App. 1, 751 S.W.2d 15 (1988); Fowler v. McHenry, 22 Ark.App. 196, 737 S.W.2d 663 (1987). The claim in this case was heard in 2001 and 2002, and appellant was therefore not entitled to the benefit of the doubt in this factual determination, even had it been properly made by the Commission instead of by this court.
The Commission erred in finding that Dr. Remmel attributed appellant's current condition to his compensable injury, and erred in basing its award of medical benefits on Dr. Remmel's opinion. We should reverse on that basis, and not compound the error by improperly making our own findings of fact and improperly giving appellant the benefit of the doubt in doing so.
I respectfully dissent.
NOTES
[1] The majority opinion mentions a "previous compensable injury that was asymptomatic before the October 3, 1983, injury was sustained." This is incorrect. Appellant sustained only one compensable injury, and sustained it in 1983. It is undisputed that his prior back condition was not work-related.
[2] Identical language was included in Act 796 of 1993 and is now codified at Ark.Code Ann. § 11-9-704(c)(4) (Supp.2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587097/ | 944 So. 2d 380 (2006)
In the Matter of the Termination of Parental Rights for the Proposed ADOPTION OF BABY A., a child.
A.S., father, Appellant,
v.
Gift of Life Adoptions, Inc., Appellee.
A.S., father, Appellant,
v.
Jane Doe, mother, Appellee.
Nos. 2D05-3614, 2D05-3615.
District Court of Appeal of Florida, Second District.
July 21, 2006.
Barry A. Cohen, Christopher P. Jayson, and Kevin J. Darken of Cohen, Jayson & Foster, Tampa, for Appellant.
*381 John R. Fricker, Pinellas Park, for Appellee Gift of Life Adoptions, Inc.
Arthur J. England, Jr., and Daniel M. Samson of Greenberg Traurig, P.A., Miami; and Anthony B. Marchese, Tampa, for Appellee/Participants, Prospective Adoptive Parents.
Dana Friedlander, Tampa, for Appellee Jane Doe.
ALTENBERND, Judge.
A.S., the putative biological father of Baby A., appeals an order terminating his parental rights, which was entered in a private adoption proceeding initiated by Gift of Life Adoptions, Inc., pursuant to section 63.087, Florida Statutes (2004). He also appeals an order dismissing as moot his complaint to determine parentage under chapter 742, Florida Statutes (2004). This case involves the Florida Putative Father Registry, section 63.054, Florida Statutes (2004), and presents complicated issues affecting the legal rights of many Floridians. A.S. attempts to raise constitutional challenges to the Registry that were not preserved below. We conclude that this case can be resolved purely as a matter of statutory law. Accordingly, we decline to review the facial constitutionality of section 63.054.
The adoption statutes involved in this case are based on the theory that A.S. has no parental rights and does not need to be a party to the adoption. Gift of Life did not allege a claim for termination of parental rights against A.S., and the statutes gave the trial court no power to terminate any parental rights that A.S. might possess. Thus, even though A.S. ultimately intervened in the adoption proceeding, the trial court erred in terminating any parental rights he may have.
On the other hand, the legislature has established chapter 742 as the "primary jurisdiction" to determine paternity. See § 742.10(1), Fla. Stat. (2004). We conclude that in those relatively rare and unusual circumstances in which a putative biological father, who did not comply with section 63.054, files an action to determine parentage under chapter 742 before the conclusion of the adoption, the putative father is entitled to resolution of the chapter 742 proceeding prior to the adoption. If the chapter 742 proceeding establishes that the putative father is actually the biological father of the child and that he is assuming the responsibilities that such a determination requires, then it appears that chapter 63 gives him a role in consenting or withholding consent for an adoption of his child.
Accordingly, we conclude that the trial court erred in resolving the termination issues in the adoption proceeding before resolving the chapter 742 proceeding. The chapter 742 proceeding should not have been dismissed as moot. Thus, we reverse both orders on appeal and remand for further proceedings consistent with this opinion.
I. THE FACTS[1]
A.S. is an unmarried man in his mid-twenties. He is a high school graduate *382 and since graduating has worked for several different retail stores. At all times relevant to this case, he has lived with his parents. Jane Doe[2] is an unmarried woman of similar age who works for another retail store, earning approximately $30,000 per year.
A.S. and Jane Doe met in August 2002. They had a relationship for about a year. They lived together at the home of A.S.'s parents from May to August 2003. During this relationship, Jane Doe became pregnant. She disclosed the pregnancy to A.S. Although he was apprehensive about the prospects of being a father, he went to the first doctor's appointment with Jane Doe and tried to be supportive. Jane Doe felt, however, that A.S. was not ready to be a father. Jane Doe suffered a miscarriage. Their relationship deteriorated. Jane Doe concluded that A.S. was not going anywhere with his life and that they had different goals. As a mutual decision, she moved into her own apartment in August 2003. They did not further contact one another and were not working in nearby locations.
About a month before Jane Doe moved out, she became pregnant for a second time. She did not realize this when she moved out. Although there seems to be no question that A.S. is the father of the child,[3] Jane Doe never contacted him at work or called his house to tell him about the child. She apparently concluded that because he had been so apprehensive about the first pregnancy, there was no reason to contact him about the second one. A.S. did not discover that Jane Doe was pregnant until he was informed of the adoption proceedings.
The child was born in March 2004. About two months before the child was born, Jane Doe decided that adoption was a sensible option. The record indicates that Jane Doe first contacted Gift of Life's adoption agency on the day the child was born. She gave them detailed information about herself and her family's personal and health history. She declined to provide A.S.'s name, although she gave a full physical description of him. Gift of Life paid Jane Doe an undisclosed amount of money, and she was allowed to have some information about the prospective adoptive parents before surrendering the child to them.
II. THE TERMINATION PROCEEDING
Gift of Life began the litigation by filing a motion to authorize placement of the child with the prospective adoptive parents on April 6, 2004. The case was assigned case number 04-3998 and assigned to Judge Marion L. Fleming. On April 19, she entered a standard order sealing the file and a separate order authorizing the preliminary placement of the child with the prospective adoptive parents. This latter order specifically noted that the placement was "at risk and that the minor is subject to removal from the prospective adoptive home by Gift of Life Adoptions, Inc., or by *383 court order." Shortly thereafter, Gift of Life filed a "petition for voluntary termination of parental rights."
The petition for voluntary termination of parental rights contained the information required by section 63.087(4), Florida Statutes (2004). It alleged the birth of the child and indicated that the birth mother consented to the child's adoption through Gift of Life. Among the allegations, it provided that no grandparents were entitled to notice under section 63.0425, Florida Statutes (2004). It identified Jane Doe as the birth mother and stated that the birth father was "unknown." Although A.S. was not identified by or served with this pleading, the petition concludes with a request that the trial court enter an order terminating the "parental rights of the biological parents and placing the child in the temporary and permanent custody of Gift of Life Adoptions, Inc., for subsequent adoption."[4]
There are multiple exhibits appended to the petition, including the birth mother's consent to the adoption. One of the exhibits is a "case note summary" in which the case worker reports that the birth mother "has refused to give any information regarding the birth father and can do so under the Statute." The report, however, continues with a physical description of the father, reporting that he still "resides in the State of Florida with his parents." Thus, it is obvious from the court file that Jane Doe knew the identity and whereabouts of A.S. and his parents, with whom she had resided at the time of conception, and that she unilaterally chose not to share this information with Gift of Life. It seems equally clear that Gift of Life informed her that she had the right to withhold this information under the statute.
Although the petition designated the father of the child as "unknown" and there is no indication in the record that the petition was served on A.S., on September 7, 2004, A.S. filed a notarized handwritten letter indicating he objected to the adoption of the child. It appears this letter was also faxed to Gift of Life on September 3. A.S. indicated that he was served with a "notice of intended adoption plan" on August 25, 2004. He stated, "I am personally willing and able to take full responsibility for my [child]" and "I also am willing to contribute to any living and medical expenses incurred by [Jane Doe's] pregnancy and the birth of my [child]." On September 10, 2004, an attorney appeared on behalf of A.S. and filed a "response to intended adoption" reiterating much of what A.S. wrote in the earlier letter.
On September 23, 2004, an attorney filed a notice of appearance on behalf of the prospective adoptive parents. The prospective adoptive parents then filed a motion to intervene as necessary parties on October 27, 2004. When the trial court denied this motion by an order entered November 17, 2004, the court explained the series of events leading to the appearance of the birth father in this case.
According to the order, Judge Fleming had noted the case worker's summary filed by Gift of Life and had become concerned about the fact that Jane Doe was withholding information about the biological father. Accordingly, Judge Fleming ordered Jane Doe to appear before the court.[5] As Judge Fleming summarized the events, Jane Doe testified that the attorney for Gift of Life told her that she had a right of privacy that included her right not to identify *384 the father of the child. Judge Fleming informed Jane Doe that this advice was legally incorrect and ordered Jane Doe to identify the father so he could be notified of the proceedings. Judge Fleming's order stated: "The mother willingly complied, even giving the birth father's address."
Citing cases that hold that prospective adoptive parents have no right to intervene in a termination proceeding, see, e.g., Gift of Life, Inc. v. D.E.F. (In re D.L.G.), 802 So. 2d 1152 (Fla. 2d DCA 2001); Prospective Adoptive Parents v. C.V. (In re Baby Boy G.), 703 So. 2d 1103 (Fla. 2d DCA 1997), Judge Fleming denied the prospective adoptive parents' motion to intervene. Judge Fleming entered a separate order appointing a guardian ad litem for purposes of the termination proceeding.
It is undisputed that Judge Fleming ordered Gift of Life to serve A.S. with a notice of intended adoption plan pursuant to section 63.062(3)(a) and thus to inform him of the proceedings, although no written order to this effect appears in our record. Section 63.062(3)(a) states that
an adoption entity may serve upon any unmarried biological father identified by the mother or identified by a diligent search of the Florida Putative Father Registry . . . a notice of intended adoption plan at any time prior to the placement of the child in the adoptive home, including prior to the birth of the child. The notice of intended adoption plan must specifically state that if the unmarried biological father desires to contest the adoption plan, he must file with the court, within 30 days after service, a verified response that contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)(2). The notice of intended adoption plan shall notify the unmarried biological father that he must file a claim of paternity form with the Office of Vital Statistics within 30 days after service upon him and must provide the adoption entity with a copy of the verified response filed with the court and the claim of paternity form filed with the Office of Vital Statistics. . . . If the unmarried biological father . . . fails to properly file a verified response with the court and . . . a claim of paternity form with the Office of Vital Statistics within 30 days after service upon that unmarried biological father . . ., the consent of that unmarried biological father . . . shall no longer be required under this chapter and that party shall be deemed to have waived any claim of rights to the child. Each notice of intended adoption plan served upon an unmarried biological father must include instructions as to the procedure the unmarried biological father must follow to submit a claim of paternity form to the Office of Vital Statistics and the address to which the registration must be directed.
A.S. complied with the instructions listed in the notice of intended adoption plan provided by Gift of Life.
The prospective adoptive parents moved for rehearing on their motion to intervene. Before Judge Fleming's ruling on that motion, on December 10, 2004, Gift of Life moved to disqualify her. The motion was supported by an affidavit from Cliff Davis, generally confirming the events described in Judge Fleming's order. Judge Fleming granted the motion to disqualify, and Judge Raymond O. Gross was later assigned to hear the case. Judge Gross ultimately permitted the prospective adoptive parents to intervene as "participants,"[6] not parties, to the action.
*385 III. AN ASIDE CONCERNING JUDGE FLEMING'S ORDER TO DISCLOSE THE IDENTITY OF THE BIOLOGICAL FATHER
If this case had been assigned to a different, less observant trial judge, it is worth noting that it might have taken an entirely different path. Presumably, the trial court would have entered an order terminating the parental rights of Jane Doe and also the rights of the unidentified, unserved biological father. At some point, the child would have been adopted by the prospective adoptive parents. There is a good chance that A.S. and the child's paternal grandparents would never have known of the child's existence.
Although this court has little evidence before it on the subject, it appears likely that, after the effective date of the Florida Putative Father Registry, a significant number of cases may have proceeded along this path without any notification to the putative biological father or other paternal relatives. There is at least one additional case pending in this court involving an adoption agency that requested and received a "termination" of parental rights for a man who was not named or served in the action. The parties concede that only a very small percentage of affected putative biological fathers have actually registered under the act.[7] Many of the affected putative biological fathers may be young, irresponsible, and totally unprepared to care for a child. In at least a few cases, it is possible that the biological father is actually better prepared financially and emotionally to care for the child than the prospective adoptive parents. These circumstances present larger social issues that invite resolution, but this case is not a proper vehicle to resolve these issues.
Because Judge Fleming's decision has altered the course of this case, it is worth emphasizing that her ruling has support within the applicable statutes and was not challenged in this court by writ of certiorari or prohibition. Proceedings to terminate parental rights pending adoption are explained in section 63.088, Florida Statutes (2004). Subsection 4 of that statute is entitled "REQUIRED INQUIRY" and tells the trial court that it "must" conduct an inquiry regarding the identity of "any man with whom the mother was cohabiting at any time when conception of the minor may have occurred." § 63.088(4)(d). Thus, it would appear that Judge Fleming not only had discretion to inquire of Jane Doe about A.S., she may have had a statutory obligation to make this inquiry.
Under section 63.062(3)(a), an adoption agency has the discretion, but not a duty, to notify an unmarried biological father like A.S. of the intended adoption, even if he cohabitated with the mother at the time of conception. It is unclear what factors, if any, the agency is supposed to consider in making this decision.[8] In this case, *386 Judge Fleming essentially ordered the adoption agency to provide the notification required by that statute. Although the issue is not squarely before us, we are inclined to believe that, being obligated to make the inquiry, Judge Fleming had the discretion to order this disclosure.
Nevertheless, as we will discuss later, because A.S. is not a person required to consent to the adoption under the current statutory framework, it is not entirely clear what role he could play in the termination proceeding once he was notified because the notification occurred after the petition had been filed. His decision to file the action to determine parentage that is described in the next section was probably the result of the unusual position in which he was placed in the termination proceeding.
IV. THE DETERMINATION OF PARENTAGE PROCEEDING UNDER CHAPTER 742
In addition to responding to the notice of intended adoption plan and to the pleadings in the termination proceedings, on September 29, 2004, A.S. filed a "petition to establish paternity" in Pinellas County pursuant to chapter 742. In this action, A.S. brought suit only against Jane Doe. He filed a typical complaint to determine parentage requesting that he share parental responsibility for the child, that he be designated the primary residential parent of the child, and that Jane Doe pay child support. A.S. disclosed the existence of the pending termination proceeding in his petition. Gift of Life was not a party to this lawsuit, but it is not obvious under the provisions of chapter 742 that it was a necessary party. The prospective adoptive parents were also not parties, but it is doubtful that A.S. could have determined their identity at the time he filed this action.
As a matter of course, A.S. was ordered to attend a parent education course in the paternity action, and he immediately complied with that order. In January 2005, Jane Doe, represented by counsel, filed a "response" to the petition in which she admitted that A.S. was the father of the child. She explained that the child had been placed for adoption and that the child was in the custody of the prospective adoptive parents.
In February 2005, A.S. moved for summary judgment because Jane Doe had admitted he was the child's father. This pleading was filed with a style containing both the case number for the chapter 742 proceeding as well as the case number for the chapter 63 proceeding, as if the two cases had been consolidated. No further activity occurred in the parentage proceeding until Judge Gross entered an order dismissing it on June 17, 2005, as "moot" because of his rulings in the termination proceeding.
The inaction in the parentage proceeding is explained by documents in the termination proceeding. Pinellas County has a unified family court division, and both of these cases, though not consolidated, were assigned to Judge Gross. Jane Doe filed a "motion to abate" the parentage proceeding in the termination proceeding. Like A.S.'s motion for summary judgment, the style listed both case numbers, but it was filed only in the parentage proceeding. On May 9, the trial court held a simultaneous hearing in both cases. Over A.S.'s objection, Judge Gross granted a motion to stay the parentage proceeding. The order was entered and filed only in the termination proceeding. It is apparent, however, that the trial court did not actually stay either proceeding. It simply treated them as if they were one action and decided to resolve the termination issues before deciding the paternity issues. As we will ultimately *387 conclude, this decision is the point at which the trial court ventured down the wrong path.
V. RETURNING TO THE TERMINATION PROCEEDING
After the termination proceeding was assigned to Judge Gross, A.S. filed both an answer and a motion to dismiss in January 2005. These documents are interesting because the petition for voluntary termination of parental rights does not name A.S. and does not contain any allegations concerning him except for the fact that the father, whoever he might be, is "unknown." A.S.'s motion to dismiss alleges that Gift of Life failed to allege any act committed by A.S. that would permit the termination of his parental rights under either chapter 39 or 63, Florida Statutes (2004). There is no order expressly disposing of this motion to dismiss.
A.S. did not file a pleading expressly challenging the constitutionality of any statute either facially or as applied. Rather, A.S. simply admitted that he was the father of the child and denied that he had abandoned the child.
The prospective adoptive parents sought rehearing of their motion to intervene based upon the recusal of Judge Fleming. Judge Gross reheard the matter and entered an order on February 14 permitting the prospective adoptive parents to intervene as "participants," entitled to notice but not to be heard. They were authorized to proceed anonymously.[9]
Gift of Life filed a very short motion for summary judgment, arguing that the trial court should enter a final judgment terminating A.S.'s parental rights because he did not comply with the statutes creating the Florida Putative Father Registry. See §§ 63.054, .062(2). The motion attached a copy of an order granting comparable relief in an unrelated Thirteenth Judicial Circuit proceeding. In essence, the motion argued that because A.S. did not file a claim prior to the birth of the child, any parental rights he might otherwise have had must be terminated. In other words, Gift of Life asked the trial court to "terminate" rights that it maintained A.S. had never hadat least from the moment the mother filed the consent for adoption.
A.S. filed a document entitled "motion in opposition to termination of parental rights," apparently as a response to the motion for summary judgment. A.S. argued that the Florida Putative Father Registry is new, that the State's brochure publicizing this program was not published until after his child was born, and that he was unaware of this law at all times in which he could have complied. He argued that Jane Doe knowingly and intentionally hid her pregnancy from him and that he would have filed his petition to determine parentage earlier if she had notified him that she was pregnant.[10] He emphasized *388 that there was no allegation or proof that he was unfit to serve as the child's custodial parent. Again, A.S. did not directly challenge the constitutionality of any aspect of this statutory proceeding. In fact, he did not challenge the constitutionality of the Florida Putative Father Registry provisions, even though the trial court had raised the possibility of the issue at a hearing held approximately a month earlier and inquired whether A.S. intended to make such a challenge.
Gift of Life filed an extensive memorandum with the court in support of its motion for summary judgment. It contained what appeared to be "canned" arguments, including an argument that the Florida Putative Father Registry statutes are constitutional under a due process and equal protection analysis. Thus, this case is in the odd posture of having no constitutional challenge made by A.S. in the trial court but having a defense against such a constitutional argument filed by Gift of Life.[11]
Judge Gross conducted a hearing on Gift of Life's motion for summary judgment on June 10, 2005. At the beginning of the argument, he noted that there were two separate case numbers. He explained that the cases had not been consolidated but that the second case was being "considered" with the first. The arguments made by counsel at this hearing were wide-ranging but did not include any constitutional arguments by A.S. The only sworn testimony before the court was in the form of depositions of A.S. and Jane Doe. In a nutshell, Gift of Life argued that because it was undisputed that A.S. had not filed a claim with the Florida Putative Father Registry prior to the birth of his child and the mother's consent to the adoption, the adoption statute required a termination of his parental rights.
On June 16, 2005, Judge Gross entered an order granting summary judgment.[12] As stated in his conclusion, he ruled: "Because it is undisputed by the parties that the putative biological father failed to timely register with the Florida Putative Father Registry pursuant to the provisions of chapter 63, Florida Statutes (2004), his *389 consent to termination of parental rights and adoption is not required. See § 63.062(2)(d), Fla. Stat. (2004)." Even though A.S. had not articulated a constitutional challenge to the statute, the court addressed the issue in the order but concluded that pursuant to Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983), there was "no constitutional infirmity" that would prevent applying the statutes as written to A.S. As described earlier, Judge Gross entered an order the following day dismissing the determination of parentage action. Thus, we review both orders in this appeal.
VI. THERE IS NO STATUTORY AUTHORITY TO TERMINATE THE PARENTAL RIGHTS OF A.S. IF HE IS NOT A STATUTORY "PARENT"
The trial court was partially correct in its summary judgment. Under the applicable statutes, A.S.'s consent to the adoption is not required unless he can establish that he is a "parent"something he had not done at the time the summary judgment was entered. However, if an unmarried biological father is not a "parent" as defined in the statutes, there is no statutory provision for terminating that father's rights. Instead, the statutes are premised on a legal theory that an unmarried biological father who is not a "parent" has no "parental rights" to terminate and does not need to be a party to the lawsuit.
The parties in this case have extensively briefed and argued constitutional issues that were not litigated in the trial court. Not only are these issues poorly preserved or unpreserved, but this court is obligated to resolve cases without reaching these types of constitutional questions whenever possible. See McKibben v. Mallory, 293 So. 2d 48, 51 (Fla.1974) ("It is a fundamental principle that courts will not pass upon the constitutionality of a statute where the case before them may be disposed of upon any other ground."); see also Matthews v. Weinberg, 645 So. 2d 487, 488 (Fla. 2d DCA 1994). We conclude that the resolution of this case lies in the proper interpretation of the applicable statutes, not in addressing the admittedly significant constitutional issues raised by the current adoption statutes.
Chapter 63 was extensively amended in 2003. See ch. 2003-58, § 2, Laws of Fla. (eff. May 30, 2003).[13] There is little case law explaining or interpreting this statute since the 2003 amendments were enacted. See, e.g., A.F.L., Jr. v. Dep't of Children & Families, 927 So. 2d 101 (Fla. 5th DCA 2006); J.S. v. S.A., 912 So. 2d 650 (Fla. 4th DCA 2005); S.K.R. v. Dep't of Children & Family Servs., 902 So. 2d 328 (Fla. 2d DCA 2005). Following a careful examination of the present statutory provisions, we conclude that Gift of Life never alleged a cause of action to terminate the parental rights of A.S. and that it had no statutory basis to do so. Accordingly, the trial court erred when it terminated the parental rights of A.S. without any legal power to take that action.
The current adoption statutes establish a two-step process for adoption in which a termination of parental rights occurs first and is followed by an adoption. In the *390 2003 revisions to the adoption statutes, the legislature specifically created the Florida Putative Father Registry. The legislature expressly announced its intent and the policies underlying that intent as follows:
(1) The Legislature finds that:
(a) The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children.
(b) An unmarried mother faced with the responsibility of making crucial decisions about the future of a newborn child is entitled to privacy, has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding an adoptive placement.
(c) Adoptive children have the right to permanence and stability in adoptive placements.
(d) Adoptive parents have a constitutional privacy interest in retaining custody of a legally adopted child.
(e) An unmarried biological father has an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood, both during the pregnancy and after the child's birth. The state has a compelling interest in requiring an unmarried biological father to demonstrate that commitment by providing appropriate medical care and financial support and by establishing legal paternity rights in accordance with the requirements of this chapter.
(2) It is the intent of the Legislature that in every adoption, the best interest of the child should govern and be of foremost concern in the court's determination. The court shall make a specific finding as to the best interest of the child in accordance with the provisions of this chapter.
(3) It is the intent of the Legislature to protect and promote the well-being of persons being adopted and their birth and adoptive parents and to provide to all children who can benefit by it a permanent family life, and, whenever appropriate, to maintain sibling groups.
(4) The basic safeguards intended to be provided by this chapter are that:
(a) The minor is legally free for adoption and that all adoptions are handled in accordance with the requirements of law.
(b) The required persons consent to the adoption or the parent-child relationship is terminated by judgment of the court.
§ 63.022, Fla. Stat. (2004).
The legislature's theory that an unmarried biological father's constitutional rights are "inchoate" is further explained in section 63.053. That statute explains:
(1) In enacting the provisions contained in this chapter, the Legislature prescribes the conditions for determining whether an unmarried biological father's actions are sufficiently prompt and substantial so as to require protection of a constitutional right. If an unmarried biological father fails to take the actions that are available to him to establish a relationship with his child, his parental interest may be lost entirely, or greatly diminished, by his failure to timely comply with the available legal steps to substantiate a parental interest.
(2) The Legislature finds that the interests of the state, the mother, the child, and the adoptive parents described in this chapter outweigh the interest of an unmarried biological father who does not take action in a timely *391 manner to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter. An unmarried biological father has the primary responsibility to protect his rights and is presumed to know that his child may be adopted without his consent unless he complies with the provisions of this chapter and demonstrates a prompt and full commitment to his parental responsibilities.
(3) The Legislature finds that a birth mother and a birth father have a right to privacy.
The legislature's intent is implemented in part by defining who is a "parent." Chapter 63 has no definition of "mother" or "father." Rather, section 63.032(12) states that the word "parent" as used in chapter 63 "has the same meaning ascribed in s. 39.01." Section 39.01(49), Florida Statutes (2004), defines parent as follows:
"Parent" means a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under s. 63.062(1). . . . The term does not include an individual whose parental relationship to the child has been legally terminated, or an alleged or prospective parent, unless the parental status falls within the terms of s. 39.503(1) or s. 63.062(1).
Thus, A.S. is a "parent" for purposes of chapter 63 if he is "a man whose consent to the adoption of the child would be required under [section] 63.062(1)." Section 63.062 addresses the persons required to consent to adoption. In subsection (1), the legislature explains that a "petition to terminate parental rights pending adoption may be granted only if" written consent has been obtained from, or notice provided to, five different categories of people. The "father" is essential to such a termination only if:
1. The minor was conceived or born while the father was married to the mother;
2. The minor is his child by adoption;
3. The minor has been established by court proceeding to be his child;
4. He has filed an affidavit of paternity pursuant to s. 382.013(2)(c); or
5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2).
§ 63.062(1)(b)(1)-(5).
A.S. does not fit into the circumstances described in subsections 1, 2, or 4. He has attempted to establish his rights under subsection 3, but that proceeding was stayed in favor of the termination. He has also argued that he has established rights under subsection 5. Thus the dispute in the termination case centers upon whether A.S. has established the right to consent or object to the adoption or should have been provided the opportunity to do so in the paternity action. If he has not established the right to consent or object to the adoption, the statutes treat him as a stranger to the litigation, with no rights to be terminated. Based upon this analysis, the trial court could not determine that A.S. had failed to establish his status as a "parent" but then terminate his "parental rights." To the extent the trial court did so, it erred.
VII. A.S. IS NOT A "PARENT" PURSUANT TO SECTION 63.062(1)(b)(5)
As stated above, A.S. would be considered a parent, whose consent was required for an adoption, if he "acknowledged *392 in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2)." § 63.062(1)(b)(5). We agree with the trial court that A.S. has not met the requirements of subsection 5 because he failed to, "within the required timeframes," comply with the "requirements of subsection (2)."
Section 63.062(2)(b) provides that the consent of an unmarried biological father is necessary when a child is younger than six months of age at the time the child is placed with prospective adoptive parents only if the father has
demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:
1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.
2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother's pregnancy and the child's birth in accordance with his ability to pay.
3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.
Here, A.S. did attempt to file the notarized claim of paternity with the Florida Putative Father Registry. It is undisputed, however, that the claim was untimely because it was filed after the mother had executed her consent to the adoption and after Gift of Life filed its petition for termination of parental rights pending adoption. See § 63.062(b)(1); see also § 63.054(1) ("The claim of paternity may be filed [with the Florida Putative Father Registry] at any time prior to the child's birth, but a claim of paternity may not be filed after the date a petition is filed for termination of parental rights.").
As section 63.062(2)(d), states:
An unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.
Thus, under the clear and unambiguous language of these statutes, A.S. is not a man required to consent to the adoption and, thus, he is not a statutory "parent," even though he presumably is the child's biological father. It is not this court's job today to determine the wisdom of this statutory structure, but simply to apply it.
A.S. has argued that he is a parent whose consent is required under section 63.062(2)(b) because Gift of Life, compelled to do so by Judge Fleming, served A.S. *393 with a notice of intended adoption plan pursuant to section 63.062(3)(a), and he complied with the procedures required by that notice.[14] However, section 63.062(2)(b) required A.S. to timely comply with the requirements listed in the notice of intended adoption plan, see § 63.062(2)(b)(2), and to timely file his claim with the Florida Putative Father Registry, see § 63.062(2)(b)(1).
We admit that section 63.062(3)(a) seems odd to this court. It appears to give discretion to the adoption entity as to whether to notify a man such as A.S. of an intended adoption prior to the placement of the child in the adoptive home. It then notifies the putative father that he must file a claim with the Florida Putative Father Registry. However, if the claim is filed after the mother has executed the consent to adoption or after the petition for termination of parental rights is filed, it appears that the father may still be deemed to have waived or surrendered his rights to the child because he will not have timely complied with section 63.062(2)(b)(1). In this case, the matter is even more confusing because Gift of Life had already placed the child, obtained the mother's consent, and filed its petition for termination of parental rights before Judge Fleming compelled it to disclose the adoption to A.S.
It is not entirely clear what rights A.S. or a similarly situated unmarried biological father may have in a termination of parental rights pending adoption proceeding if he receives notice of the proceeding and appears. Nevertheless, the statutes do not give such a father a role in consenting or objecting to the adoption, nor do they permit a termination of any rights, inchoate or otherwise, that the father may have.
The legislature's intent to treat an unmarried biological father such as A.S. as a "non-parent" who has no established rights requiring termination is further demonstrated in sections 63.088 and 63.089. These statutes describe the proceedings to terminate parental rights pending adoption, including provisions regarding who should receive notice and the grounds for terminating parental rights under the statute. Both statutes refer specifically to providing notice of the adoption to, and to holding hearings for, only those persons "whose consent to adoption is required." Notice to an unregistered putative biological father, such as A.S., is not required because he is not a person whose consent is required. There are numerous grounds for termination in section 63.089(3), but these refer only to "each person whose consent to adoption is required."[15]
Thus, Gift of Life properly followed the statute when it neither named nor served A.S. and placed no allegations concerning A.S. in its complaint. At the time the complaint was filed, A.S. was not a "parent" or a person whose consent was required *394 because he did not meet the requirements of section 63.062(1)(b)(1)-(5).[16] Concomitantly, if A.S. was not a parent, there was no authority for the trial court to terminate his parental rights.[17]
Nevertheless, while this proceeding was pending, A.S. sought to establish his rights not only by filing his untimely claim with the Florida Putative Father Registry but also by filing an action to determine parentage under chapter 742. If A.S. were able to establish paternity under chapter 742, he would become a "parent" whose consent to adoption is required pursuant to section 63.062(1)(b)(3). Because chapter 742 "provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock," § 742.10(1), and because there is no time limit for filing such a proceedingat least in the absence of a final judgment of adoption otherwise establishing the parentage of a child with the prospective adoptive parentswe conclude that A.S. was entitled to pursue his action for paternity and that the adoption proceeding could not be resolved by summary judgment until it was determined whether A.S. was a parent through the paternity proceeding.
VIII. THE TRIAL COURT WAS REQUIRED TO DETERMINE PARENTAGE PURSUANT TO CHAPTER 742 UNDER THESE UNUSUAL CIRCUMSTANCES
The legislature has determined that chapter 742 should be the "primary *395 jurisdiction" to determine paternity. See § 742.10(1). Although a trial court cannot terminate unrecognized parental rights in a chapter 63 proceeding, an unmarried biological father may still be able to transform the "inchoate interest" recognized by the legislature in section 63.022(1)(e) into an established parental right in a chapter 742 proceeding, thus requiring, pursuant to section 63.062(1)(b)(3), his consent and the termination of those parental rights in any proceeding to adopt the child.[18]
We can find no provision in chapter 742 that bars an unmarried biological father from filing a complaint to determine parentage merely because he has failed to register with the Florida Putative Father Registry.[19] Section 742.07 explains that an adoption by another party causes the father's support obligation to terminate. Presumably, a final judgment of adoption would also establish the child's parentage in the adoptive parents and make a determination of parentage unnecessary. But the provisions of chapter 742 do not prohibit a father with inchoate rights from filing a proceeding to establish by court order his paternal rights, even if a birth mother has executed a consent for adoption or an adoption proceeding is pending.
Despite the language of chapter 63, it seems clear to us that men such as A.S. are noncustodial parents from whom support can be demanded under Florida law.[20]See, e.g., §§ 409.2563, 742.031, Fla. Stat. (2004); see also State v. Bollinger, 88 Fla. 123, 126, 101 So. 282, 283 (Fla.1924) ("The father owes a duty to nurture, support, educate and protect his child, and the child has the right to call on him for the discharge of this duty. These obligations and rights are imposed and conferred by the laws of nature; and public policy, for the good of society, will not permit or allow the father to irrevocably divest himself of or to abandon them at his mere will or pleasure."). In this case, despite the language of chapter 63, A.S. has a legal obligation to support his child unless and until that child is adopted. If welfare payments were made to the mother, then the State may be subrogated to her rights against A.S. See § 409.2561, Fla. Stat. (2004). As noted above, he would also be entitled to notice and to participate in any proceedings brought by the State of Florida to declare this child dependent or to terminate any rights he may have to the child. See §§ 39.503(3), .801(3)(a)(6).[21]
*396 If the trial court in this case had not delayed the ruling in the chapter 742 case until after it had entered an order terminating A.S.'s parental rights, the analysis in the termination and adoption proceeding would have been different. Section 63.062(1)(b)(3) provides that a petition to terminate parental rights may be granted only after written consent or notice to a "father" under circumstances where "[t]he minor has been established by court proceeding to be his child." Thus, although A.S. is not a "parent" at this time, if he obtains a judgment in the chapter 742 proceeding, then he will be a person from whom consent is required before the trial court can enter an order of termination. Because A.S. filed the paternity proceeding before the adoption was concluded, he must be offered the opportunity to pursue his rights in that proceeding. Summary judgment was not appropriate in the termination and adoption proceeding until the paternity proceeding was decided.
IX. CONCLUSION
Our holding today resolves this case on its particular facts and provides precedent for perhaps a handful of unmarried biological fathers who have not filed a claim in the Florida Putative Father Registry but who become aware of an adoption proceeding after it has been filed and before it is concluded. The question addressed in this case does not permit resolution of some of the broader issues presented by the current adoption statutes. It does not ensure that unmarried biological fathers who might have rights independent of or in addition to the rights recognized by the legislature in chapter 63 are notified of intended adoptions. It does not ensure that adoptive parents who accept placement of a child in their home will not face challenges to the adoption from unmarried biological fathers who did not receive notice of the adoption. For now, those issues must await action by the legislature or future judicial precedent or must perhaps depend upon the integrity and vigilance of adoption agencies to take actions independent of legal requirements (and perhaps adverse to their own interests) to balance the competing interests of biological parents, adoptive parents, and the child in the adoptions they undertake.
We are also aware that, while our ruling may not affect many cases because few men like A.S. will choose to take the steps that he has taken, it will affect this child, the prospective adoptive parents, and the biological parents. Given the facts of this case and the unresolved constitutional and statutory issues, it is entirely possible that this litigation could continue for years. This case may be a perfect test case to resolve issues that might otherwise remain unresolved for future adoption cases. Yet to pursue it solely for that purpose places this child at risk of becoming the legal community's equivalent to the "Boy in the Bubble," who was confined inside a plastic bubble for twelve years while the medical community searched in vain for a cure to his condition.
The legislature has stated: "It is the intent of the Legislature that in every adoption, the best interest of the child should govern and be of foremost concern in the court's determination." § 63.022(2). We share this intent, and each participant *397 to this proceeding has expressed the same intent. Certainly, finality and stability are in the best interest of this child. Given that our society now reflects a diverse spectrum of family structures in which children enjoy multiple parents and surrogate parents, all of whom attempt to fulfill the best interests of the child, perhaps the participants in this case can find a final resolution that the legal system is unable to provide.
Reversed and remanded for further proceedings consistent with this opinion.
DAVIS, J., and BERGMANN, CHARLES ED, Associate Judge, Concur.
NOTES
[1] These facts are drawn from pleadings and depositions that appear in our record. Because the material facts were undisputed, no evidentiary hearing or trial was held. We note that the adoption proceeding involves a sealed court file that cannot be viewed by the public. The policy behind sealing such records is to ensure that the privacy of the individuals involved in the proceeding is not unduly invaded. Interestingly, the privacy of the litigants is not generally protected in paternity proceedings such as the one filed by A.S. This case presents serious legal and social issues related to recent substantial amendments to Florida's adoption law. Given the importance of this case, it is necessary to describe aspects of the litigation in greater detail to help the public understand the proceedings. Many of the pleadings are unusual or unique. Some are candidly a little confusing. We have attempted to delicately balance the interests involved by disclosing those facts necessary to present a complete picture of the case without exposing details that might identify the litigants or the child.
[2] Normally, we would refer to the mother by her initials. Given our decision to describe the facts in some detail, as explained in footnote one, we conclude that it is more appropriate to refer to her as "Jane Doe."
[3] All parties agree that he is the biological father, but no one has performed any DNA testing to confirm this fact.
[4] The petition was signed by "Cliff Davis, Director." His signature was notarized, but it is unclear from the language used whether the complaint was actually made under oath.
[5] The order to appear may have been oral. No such written order exists in this record.
[6] This term perhaps refers to Florida Rule of Juvenile Procedure 8.210. It is not clear whether adoption proceedings under chapter 63 are governed by this rule of juvenile procedure. Compare Fla. R. Juv. P. 8.000 (stating the juvenile rules "shall govern the procedures in the juvenile division of the circuit court"), with Fla. Fam. L.R.P. 12.010 (stating the family law rules apply to "all actions concerning family law matters" which "include, but are not limited to . . . adoption").
[7] Pursuant to the Florida Department of Health Statistics, approximately three out of every five births in 2004 involved an unmarried mother. A study of Florida's children revealed 84,733 children were born to unmarried mothers in 2003. See S. Weitzel & C. Shockley, Florida's Children at a Glance: 2005 (University of South Florida, Center for the Study of Children's Futures 2005).
[8] Certainly providing the notice may help protect the agency, its clients, and the child placed for adoption from a later challenge to the adoption, and thus a prudent agency might choose to provide the notice.
[9] No one challenges this Solomonic ruling on appeal. In this appeal, the prospective adoptive parents filed a "notice of intention to join proceedings as appellees" and a brief. No other party objected to the notice or brief or moved to strike the same. The parties also permitted the attorney for the prospective adoptive parents to present a brief oral argument. This court's decision to allow these procedures in the absence of any objection should not be interpreted as a legal ruling on the subject that would create precedent for future cases.
[10] A.S. acknowledged, however, that section 63.063, Florida Statutes (2004), provides in pertinent part:
(1) Each parent of a child conceived or born outside of marriage is responsible for his or her own actions and is not excused from compliance with the provisions of this chapter based upon any action, statement, or omission of the other parent or a third party, except as provided in s. 63.062(2)(a).
(2) Any person injured by a fraudulent representation or action in connection with an adoption is entitled to pursue civil or criminal penalties as provided by law. A fraudulent representation is not a defense to compliance with the requirements of this chapter and is not a basis for dismissing a petition for termination of parental rights or a petition for adoption, for vacating an adoption decree, or for granting custody to the offended party. . . .
(3) The Legislature finds no way to remove all risk of fraud or misrepresentation in adoption proceedings and has provided a method for absolute protection of an unmarried biological father's rights by compliance with the provisions of this chapter. In balancing the rights and interests of the state and of all parties affected by fraud, including the child, the adoptive parents, and the unmarried biological father, the Legislature has determined that the unmarried biological father is in the best position to prevent or ameliorate the effects of fraud and, therefore, has the burden of preventing fraud.
[11] It appears A.S. had limited financial resources to devote to this litigation. Thus, while we are somewhat critical of the failure of A.S.'s lawyers to develop the issues in this case before the trial court, they have struggled with a very new and complicated statute without the support of any interest group that might wish to make this a test case. The appellate lawyers for A.S., who have now raised some of these issues in this appeal, are not the lawyers who handled the case in the trial court.
[12] Although the order has many of the characteristics of a nonfinal order merely granting a motion, the final sentence contains language of finality terminating A.S.'s parental rights to the child. Accordingly, we have treated it as a final order.
[13] The current adoption statutes are the culmination of two major revisions undertaken by the legislature in 2001 and 2003. See ch. 2003-58, § 2, Laws of Fla. (eff. May 30, 2003); ch. 2001-3, § 7, Laws of Fla. (eff. Oct. 1, 2001); see also Jeffrey A. Parness, Adoption Notices To Genetic Fathers: No To Scarlet Letters, Yes To Good-Faith Cooperation, 36 Cumb. L.Rev. 63, 71-76 (2005-2006); Andrew T. Binstock, Not If, But When?: Dismantling The Florida Adoption Act Of 2001, 10 Cardozo Women's L.J. 625 (Summer 2004).
[14] Section 63.062(3)(a) provides, in pertinent part:
The notice of intended adoption plan must specifically state that if the unmarried biological father desires to contest the adoption plan, he must file with the court, within 30 days after service, a verified response that contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)(2). The notice of intended adoption plan shall notify the unmarried biological father that he must file a claim of paternity form with the Office of Vital Statistics within 30 days after service upon him and must provide the adoption entity with a copy of the verified response filed with the court and the claim of paternity form filed with the Office of Vital Statistics.
[15] This statute also permits termination based upon a theory of parental "abandonment." See § 63.089(4). It appears the statute would apply this concept only to a person who met the definition of a parent. Further, abandonment under the statute implies a willful and knowing rejection of parental obligations and thus would not appear to apply to a man such as A.S. who did not know of the pregnancy or the child's existence. See § 63.032(1) (defining abandonment in pertinent part as "a situation in which the parent or person having legal custody of a child, while being able, makes no provision for the child's support and makes little or no effort to communicate with the child").
[16] We note that in chapter 39 proceedings, A.S. would also not be considered a parent under section 39.01(49), but he would be a "prospective parent" pursuant to section 39.01(56) (defining prospective parent as "a person who claims to be, or has been identified as, a person who may be a mother or a father of a child"). As a "prospective parent" in a chapter 39 proceeding, A.S. would be entitled to notice of any hearing on dependency or termination of his "parental rights." See §§ 39.503(3), .801(3)(a)(6), Fla. Stat. (2004). Under Florida Rule of Juvenile Procedure 8.210, he would be classified as a "participant" in that proceeding. The concept of a "prospective parent" does not appear in chapter 63 except as it relates to prospective adoptive parents.
[17] Notwithstanding the legislature's intent to treat unmarried biological fathers such as A.S. as "non-parents" who have no "parental rights" to be terminated, intuitively, lawyers and judges who work in the field of adoption have assumed that such men did have some modicum of parental rights, particularly given statutory provisions imposing duties of support on them. There clearly is a concern that the assumptions made by the legislature in the revisions to chapter 63 may not align with the constitutional liberty interests that have been or might hereafter be announced by either the Supreme Court of Florida or the United States Supreme Court. See, e.g., Lehr v. Robertson, 463 U.S. 248, 262, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1982) (addressing an unmarried father's rights to a child in the context of the father's relationship to the child; stating that "[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring," and framing the issue on appeal as "whether New York has adequately protected [the unmarried father's] opportunity to form such a relationship"). To protect all involved in the intensely personal and emotional adoption process, the professionals who work in this field have attempted to create mechanisms within chapter 63 to terminate any possible parental rights of undisclosed, unmarried, and perhaps unknown biological fathers. We understand these concerns. As drafted, however, chapter 63 does not provide a statutory mechanism to terminate any rights that may be possessed by potential parents; it only seeks to define individuals as parents whose rights can be terminated or non-parents who have no statutory rights.
[18] Indeed, the fact that the trial court can do this in the rare case where a biological father chooses to aggressively pursue his rights may provide the protection of the father's "opportunity" to establish his parental relationship and thus make the provisions of chapter 63 less susceptible to as-applied constitutional attacks.
[19] Gift of Life argues that section 63.054(1) bars such an action. That statute addresses the filing of "a notarized claim of paternity form with the Florida Putative Father Registry maintained by the Office of Vital Statistics of the Department of Health." It does not affect the right to file an action under chapter 742.
[20] Gift of Life argues that no unmarried biological father in Florida has any rights to his biological child unless he timely registered with the Florida Putative Father Registry. It argues that, as a matter of law, such a father's "inchoate" rights cease no later than the moment when the chapter 63 petition is filed, even though he is not named in the petition or served with a copy. Rights and responsibilities tend to flow hand-in-hand. If correct, Gift of Life's argument would potentially jeopardize the rights of thousands of children who have not been adopted to receive child support from their unregistered, unmarried biological fathers.
[21] This case demonstrates that Florida has taken substantially different statutory approaches to the rights and responsibilities of biological fathers of children born to unmarried mothers depending upon the issue at stake. In cases of adoption, we wish to minimize unmarried biological fathers' rights. When the state seeks to declare a child dependent, the unmarried biological father's rights are guarded in the hopes the father will fulfill his parental obligations to the child. In cases of child support, especially when the state seeks reimbursement of welfare payments, we attempt to maximize the unmarried biological father's responsibilities. Whether Florida needs a unified policy for the rights of such biological fathers or whether varying policies can coexist is an interesting issue that is raised, but certainly not resolved, in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2190014/ | 378 N.W.2d 710 (1985)
STATE of Iowa, Appellee,
v.
Patricia (Schnetter) JENSEN, Appellant.
No. 85-574.
Supreme Court of Iowa.
December 18, 1985.
Charles L. Harrington, Appellate Defender, and B. John Burns, Asst. Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and H. Dale Huffman, County Atty., for appellee.
Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON and SCHULTZ, JJ.
McCORMICK, Justice.
This appeal involves a question of the district court's jurisdiction to revoke probation. Upon her plea of guilty to second-degree burglary in violation of Iowa Code section 713.1 (1981), defendant Patricia Schnetter Jensen received a deferred sentence and was placed on two years' probation commencing December 13, 1982. An application to revoke her probation was filed by the Pocahontas County Attorney on December 10, 1984, based on a series of alleged probation violations including events in November 1984. Hearing on the application was held on January 7, 1985, and an order revoking defendant's probation was entered on January 8, 1985. In appealing from the subsequent sentence, defendant contends the district court lacked jurisdiction to revoke her probation after it had expired. We find that the court had jurisdiction and therefore affirm the judgment.
Although the State contends otherwise, defendant was correct in attacking revocation by direct appeal rather than in a collateral postconviction action. A revocation order in a deferred sentencing proceeding inheres in the subsequent judgment and thus may be challenged on appeal from the judgment. State v. Farmer, 234 N.W.2d 89, 91 (Iowa 1975).
*711 In challenging the revocation order, defendant relies on Iowa Code section 907.9 (1983), which provides in relevant part:
At any time that the court determines that the purposes of probation have been fulfilled, the court may order the discharge of any person from probation. At the expiration of the period of probation, in cases where the court fixes the term of probation, the court shall order the discharge of such person from probation, and the court shall forward to the governor a recommendation for or against restoration of citizenship rights to such person. A person who has been discharged from probation shall no longer be held to answer for the person's offense. Upon discharge from probation, if judgment has been deferred under section 907.3, the court's criminal record with reference to the deferred judgment shall be expunged.
(Emphasis added.) We must decide whether a court has authority under this statute to revoke probation when revocation proceedings have been initiated but not completed before the probation term has ended.
The parties agree this question is one of legislative intent. The question cannot be answered from the language of the statute alone. The statutory language shows that a probationer is not discharged automatically at the end of the probation period. An order of discharge is required. Defendant contends the court's duty is mandatory when the period has expired. The State contends the order is not mandatory unless probation has been completed satisfactorily. Because this dispute cannot be resolved from language of the statute alone, we resort to rules of statutory construction. See Office of Consumer Advocate v. Iowa State Commerce Commission, 376 N.W.2d 878, 881 (Iowa 1985).
Two rules of statutory construction support the State's position. One is the rule that we consider the purpose of the statute and seek to give it effect. The other is the rule that we consider related statutes on the same subject and seek to harmonize them. Id.
The purposes of probation are expressed in section 907.7: "The purposes of probation are to provide maximum opportunity for the rehabilitation of the defendant and to protect the community from further offenses by the defendant and others." The length of probation is directly related to these purposes:
In determining the length of probation, the court shall determine what period is most likely to provide maximum opportunity for the rehabilitation of the defendant, to allow enough time to determine whether or not rehabilitation has been successful, and to protect the community from further offenses by the defendant and others.
Id. When probation is violated these purposes are frustrated. It is reasonable to believe the legislature intended that the period of probation be successfully served as a condition upon the probationer's right to discharge.
This intention is confirmed when sections 907.3(1) and 908.11 are considered. Section 907.3(1) authorizes deferred judgments like the one received by defendant in this case. It provides in part:
Upon fulfillment of the conditions of probation, the defendant shall be discharged without entry of judgment. Upon violation of the conditions of probation, the court may proceed as provided in chapter 908.
In relevant part, section 908.11 provides:
If the violation is established, the court may continue the probation with or without an alteration of the conditions of probation. If the defendant is an adult the court may hold the defendant in contempt of court and sentence the defendant to a jail term while continuing the probation, or may revoke the probation and require the defendant to serve the sentence imposed or any lesser sentence, and, if imposition of sentence was deferred, may impose any sentence which might originally have been imposed.
These provisions show the legislature intended the district court to have considerable flexibility in enforcing the terms of *712 probation. The defendant should not have an automatic right to discharge from probation when the terms have not been fulfilled.
One provision of section 907.2, which prescribes general duties of probation officers, provides arguable support for a contrary conclusion: "Probation officers shall keep records of their work and shall make reports to the court when alleged violations occur and within no less than thirty days before the period of probation will expire." To interpret this provision as precluding the reporting of violations that occur within the last thirty days of the probation period would shorten every probation by thirty days. We do not believe such an interpretation is warranted. Instead, we believe the provision is intended to require probation officers to make reports in two circumstances. One circumstance is when violations occur, even if they occur within the last thirty days of the period. The other circumstance is the reaching of a point in every probation not less than thirty days from the end of the period when a status report must be made, even if no violations have occurred.
Moreover, if the district court lost jurisdiction to revoke probation when the period expired, a defendant might escape revocation for violations occurring near the end of the period. Unless sufficient time existed for holding a hearing and ordering revocation, the period would expire and no action could then be taken except to discharge the defendant. We do not believe the legislature intended such a fortuitous result. Instead we believe the legislature conditioned the defendant's right to discharge from probation at the conclusion of the period on its successful fulfillment. At least in circumstances like those in the present case, where an application for revocation is filed before the end of the period, we find that the court retains jurisdiction to revoke probation.
A majority of other courts that have addressed the issue in analogous circumstances have reached the same conclusion.[1]See N. Cohen and J. Gobert, The Law of Probation and Parole § 11.01 at 525 (1983) ("What this means is that process sufficient to begin revocation proceedings must issue before the end of the probation or parole term."). Some courts interpret similar statutes to permit revocation within a reasonable time after expiration of the probation period even if the process was not initiated during the period.[2] Only a few courts have decided cases that support defendant's position.[3] We need not decide in this case whether our statute requires revocation proceedings to be initiated before expiration of the probation period. It is sufficient to hold, as we do, that the district court does not lose jurisdiction of a revocation proceeding that has been commenced but not completed before the period *713 expires. We also hold that a revocation proceeding is commenced with the filing in district court of an application for revocation.
Because we reject defendant's only claim on appeal, we affirm the district court.
AFFIRMED.
NOTES
[1] See Parkerson v. State, 230 Ark. 118, 321 S.W.2d 207 (1959); Tiller v. State, 257 A.2d 385 (Del.Sup.1969); State v. Gazda, 257 So. 2d 242 (Fla.1971); People v. Green, 91 Ill.App.3d 127, 46 Ill. Dec. 515, 414 N.E.2d 237 (1980); Gossett v. Commonwealth, 384 S.W.2d 308 (Ky.1964); People v. Wakefield, 46 Mich.App. 97, 207 N.W.2d 461 (1973); State ex rel. Carlton v. Haynes, 552 S.W.2d 710 (Mo.1977); Sherman v. Warden, 94 Nev. 412, 581 P.2d 1278 (1978); State v. Gibson, 156 N.J.Super. 516, 384 A.2d 178 (1978); People v. Cooper, 54 Misc. 2d 42, 280 N.Y.S.2d 920 (1967); State v. Gooding 194 N.C. 271, 139 S.E. 436 (1927); Thompson v. State, 620 P.2d 422 (Okla.Crim.App.1980); Bryant v. State, 233 Or. 459, 378 P.2d 951 (1963); State v. Taylor, 111 R.I. 653, 306 A.2d 173 (1973); Lovell v. State, 223 S.C. 112, 74 S.E.2d 570 (1953); Allen v. State, 505 S.W.2d 715 (Tenn.1974); Richards v. State, 657 S.W.2d 174 (Tex.Crim.App.1983); State v. Russell, 27 Wash.App. 309, 617 P.2d 467 (1980); State ex rel. Cox v. State Department of Health and Social Services, 105 Wis. 2d 378, 314 N.W.2d 148 (Wis.Ct.App.1981); Dent v. District of Columbia, 465 A.2d 841 (D.C.1983).
[2] See State v. Berry, 287 Md. 491, 413 A.2d 557 (1980); Commonwealth v. Sawicki, 369 Mass. 377, 339 N.E.2d 740 (1975); State v. White, 193 Neb. 93, 225 N.W.2d 426 (1975); Decker v. State, 209 N.W.2d 879 (N.D.1973); Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979).
[3] See Keller v. Superior Court, 22 Ariz.App. 122, 524 P.2d 956 (1974); People v. Ham, 118 Cal. Rptr. 591, 44 Cal. App. 3d 288 (1975); Todd v. State, 108 Ga.App. 615, 134 S.E.2d 56 (1963); Cook v. Commonwealth, 211 Va. 290, 176 S.E.2d 815 (1970); State ex rel. Phillips v. Wood, 152 W.Va. 568, 165 S.E.2d 105 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4215799/ | Motion Granted; Abatement Order filed October 26, 2017
In The
Fourteenth Court of Appeals
____________
NO. 14-17-00790-CV
____________
JBRICE HOLDINGS LLC AND 231 W. TRIOAKS LANE, AN
INDIVIDUAL SERIES OF JBRICE HOLDINGS, L.L.C, Appellants
V.
WILCREST WALK TOWNHOMES ASSOCIATION, INC., Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2016-38805
ABATEMENT ORDER
Appellants appeal the trial court’s judgment signed September 26, 2017.
Appellants filed a motion to stay the appeals until disposition of the petition for
review in cause number 16-1005, Tarr v. Timberwood Park Owners Ass’n, Inc. The
motion is granted.
The appeal is abated and removed from this court’s active docket. The appeal
will be reinstated after disposition of petition for review in cause number 16-1005
in the Texas Supreme Court. Appellants further requested that any motions
addressing security be exempted from this court’s abatement order. The court will
consider an appropriate motion to reinstate the appeal filed by either party for the
purpose of reviewing the trial court’s post-judgment orders, or the court may
reinstate the appeal on its own motion.
It is so ORDERED.
PER CURIAM
Panel consists of Justices Boyce, Christopher, and Jewell. | 01-03-2023 | 10-30-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1547210/ | 159 B.R. 830 (1993)
In re Harold E. ANDERSON, Debtor.
Bankruptcy No. 87 B 14085.
United States Bankruptcy Court, N.D. Illinois, E.D.
October 15, 1993.
*831 Melvin James Kaplan, Kevin D. Sprow, Robert E. McKenzie, Laura Diaz, McKenzie & McKenzie, Chicago, IL, for debtor.
James Newbold, Patricia A. Marshall, Asst. Attys. Gen., Illinois Dept. of Revenue Bankruptcy Div., Chicago, IL, for Illinois Dept. of Revenue.
Jack McCullough, Chicago, IL, Chapter 13 Trustee.
MEMORANDUM OPINION ON THE MOTION OF THE ILLINOIS DEPARTMENT OF REVENUE FOR SUMMARY JUDGMENT ON DEBTOR'S FIRST DEFENSE TO ITS CLAIM
JACK B. SCHMETTERER, Bankruptcy Judge.
Debtor Harold Anderson filed for protection under Chapter 13 of the Bankruptcy Code. The present contested proceeding comes before the Court upon cross-motions of the Illinois Department of Revenue (the "IDR") and the debtor Harold Anderson ("Anderson" or "Debtor"). Debtor filed three objections to the IDR's proofs of claim, which claims were filed herein after the bar date had passed. The Debtor filed a motion for judgment on the pleadings with respect to his first such objection. The IDR moved for allowance of its claims, and asked this Court to treat that motion as one for summary judgment with respect to the Debtor's first objection. For reasons set forth herein, (1) Debtor's first objection to the IDR's claims is overruled; (2) Debtor's motion for judgment on the *832 pleadings as to that objection is denied; and (3) the IDR's motion for summary judgment on the first objection is denied because it would not dispose of all objections to the claim, but undisputed facts are found under Fed.R.Civ.P. 56(d) (Fed. R.Bankr.P. 7056); and pursuant to those facts as found, the IDR motion to allow its claims to stand as timely filed is allowed.
UNDISPUTED FACTS
On September 28, 1987, Debtor filed his petition for relief under Chapter 13 of the Bankruptcy Code. The date for the first meeting of creditors was November 9, 1987, pursuant to Fed.R.Bankr.P. 2003(a). Claims of creditors were to be filed within ninety days after the meeting of creditors, pursuant to Fed.R.Bankr.P. 3002(c). Accordingly, the bar date for filing claims was February 8, 1988.
On his bankruptcy petition, Debtor scheduled seven debts, including a $415.94 debt to the IDR. Debtor never listed the name or tax number of his former business, wherein he operated under the name "Lucky Liquors", either on the bankruptcy petition or anywhere on papers accompanying his petition. When Debtor filled out his Statement of Affairs accompanying his Chapter 13 petition, the spaces calling for such information were left blank. The Chapter 13 Statement of Affairs also asked if Debtor had been known by any other name in the past six years. Debtor indicated that he had not. Debtor did indicate on the Chapter 13 Statement that he had operated businesses, but failed to provide additional required details. In summary, he did not indicate that he had owned and run a sole proprietorship known as "Lucky Liquors".
On December 2, 1987, the IDR timely filed its original proof of claim for IL 1040 taxes assertedly due from Debtor for the years 1975, 1976, 1977, 1978, 1981, and 1982. These claims totaled $4,078.38. The IDR is the only creditor that filed a proof of claim in Anderson's bankruptcy. On December 3, 1987, this Court confirmed Debtor's Chapter 13 plan. That Plan provided for monthly payments of $481.00 to the Chapter 13 Trustee. Anderson's payments to the Trustee have since been applied to the Trustee's administrative expenses, attorney's fees, and the IDR's timely filed claim.
Before the claim bar date expired, the IDR began pursuing additional tax claims against Debtor for tax liabilities assertedly accruing while Debtor operated his business Lucky Liquors. On December 13, 1985 and on December 5, 1986, the IDR sent two demand letters to Debtor demanding unpaid taxes due from the operation of Lucky Liquors. On June 8, 1987, the IDR filed two Illinois State Court proceedings against Debtor in the Circuit Court of Cook County Illinois. In the case styled Department of Revenue of the State of Illinois, v. Harold Anderson d/b/a Lucky Liquors, Case No. 87 L 50622, the IDR sued Debtor for unpaid Regional Transportation Authority Tax, and other related taxes for the period of January 1981 through June 1981, in the amount of $7,545.23. Following an administrative hearing, the assessment was reduced.
In the second case, styled Department of Revenue of the State of Illinois v. Harold E. Anderson d/b/a Lucky Liquors, Case No. 87 L 50624, the IDR sued Debtor for unpaid Retailers' Occupation Tax/Use Tax, Municipal Retailers' Occupation Tax ("ROT/UT tax"), and related taxes in the amount of $21,435.73. The claims in the second case were based upon assessments partly based on admissions of liability in signed returns, filed but unpaid by Debtor; on liability based upon returns filed late by Debtor; and upon assessments made after a field audit.
Significantly, Debtor did not list either of the IDR's pending lawsuits or the debts claimed therein on his bankruptcy petition.
The IDR filed a motion to strike Debtor's answer in the first tax case, and filed a motion for default in both tax cases on May 16, 1988. Debtor appeared at the state court hearing, and was given 21 days to respond to the IDR's motions. After the May 16, 1988 hearing, Debtor's counsel informed the IDR for the first time that this *833 debtor, who had filed for bankruptcy protection, was the same person who owned Lucky Liquors.
Upon learning that this bankruptcy affected Lucky Liquors, the IDR filed two proofs of claim herein on May 19, 1988, to reflect the Debtor's unpaid ROT/UT tax and other related taxes. On October 9, 1992, the IDR filed an amended proof of claim in the amount of $23,604.00 for the ROT/UT tax. On February 16, 1993, the IDR filed another claim in the amount of $63,945.00 for the ROT/UT tax, which included interest and penalties. The breakdown of the IDR's late-filed claims is as follows: $32,644.00 for the tax, $25,050.00 for pre-petition interest, and $6,251.00 for penalties.
Debtor filed an objection and amended objection to the IDR's claims. He asserted three defenses (called "counts" in his objection) to the IDR claims. The first defense is that the IDR claims were untimely, and as such should be disallowed. The second defense is that the IDR's proofs of claim fail to state the amount of the IDR's claim as of the petition date, as required by 11 U.S.C. § 502(c). Finally, Debtor disputes the extent and priority of the IDR's claims, and asks the Court to determine the nature and amount of the claims.
On January 19, 1993, Debtor moved for judgment on the pleadings as to his first defense to the IDR claims. On February 23, 1993, the IDR filed a cross-motion to allow its claims as timely filed. On February 23, 1993, the Court entered an order, pursuant to the IDR's request, to treat its discussion of Debtor's first objection to the IDR's proofs of claim as a motion for summary judgment thereon under Bankruptcy Rule 7056. Thus, the only issue presently ready for ruling is Debtor's first defense to IDR's proofs of claim and motions with respect thereto. Should the late-filed claims be allowed to stand and be determined on their merits?
Debtor asserts several reasons why the IDR's claims should be barred for untimeliness under his first objection: (1) Bankruptcy Rule 3002 sets a time period for filing claims which has not been adhered to; (2) the late filed claims include different types of taxes and different periods than those in the original, timely proof of claims; (3) the IDR had knowledge of the fact that they might file claims to include additional taxes and failed to disclose that fact to the Court before the bar date passed; (4) the IDR could have protected its interest by requesting leave of Court to extend the bar date, but failed to do so; (5) a majority of the IDR's late filed claims are for non-priority taxes and appear to be unsecured; (6) the IDR has improperly engaged in state court litigation against Debtor, in violation of the automatic stay, with respect to the taxes sought in the late filed claims; and (7) allowing the late filed claims would undermine the bankruptcy court's need for prompt resolution of disputes.
The IDR does not deny that the claims now in issue were filed after the bar date passed, but argues four theories for allowing its late claims. First, it requests that the Court utilize its equitable powers to allow the late claims. The IDR explains that it failed to file timely proofs of claim because Debtor did not properly disclose that he operated under other names, and failed to list his business name or tax identification number on his bankruptcy petition and schedules, as required. By the time the IDR realized that Debtor had engaged in taxable activities under the name "Lucky Liquors", the claims bar date had passed.
Second, the IDR argues that due process and notice requirements under the Constitution's Fifth Amendment require that the IDR be allowed to file its late claims. Third, the IDR argues that "cause" exists under Bankruptcy Rule 3002(c)(1), which authorizes the Court to extend the deadline for timely filed claims. Finally, the IDR cites In re Hausladen, 146 B.R. 557, 562 (Bankr.D.Minn.1992), for the proposition that a claim filed late under Bankruptcy Rule 3002 is not automatically disallowed under § 502.
JURISDICTION
This matter is before the Court pursuant to 28 U.S.C. § 157, and is referred here *834 under Local District Court Rule 2.33. This Court has subject matter jurisdiction under 28 U.S.C. § 1334, and this is a core proceeding under 28 U.S.C. § 157(b)(2)(B).
DISCUSSION
Summary Judgment Standards
In order for a party to prevail on a motion for summary judgment, the movant must meet the statutory criteria set forth in Fed.R.Civ.P. 56 (Fed.R.Bankr.P. 7056). Rule 56(c) provides in pertinent part:
[T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). The primary purpose for granting a summary judgment motion is to avoid unnecessary trials when there is no genuine issue of material fact in dispute. Farries v. Stanadyne/Chicago Div., 832 F.2d 374, 378 (7th Cir.1987) (quoting Wainwright Bank & Trust Co. v. Railroadmen's Federal Sav. & Loan Assoc., 806 F.2d 146, 149 (7th Cir.1986)).
The burden is on the moving party to show that no genuine issue of material fact is in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548-2552, 91 L. Ed. 2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-586, 106 S. Ct. 1348, 1355-1356, 89 L. Ed. 2d 538.
Fed.R.Civ.P. 56(d) provides for the situation when judgment is not rendered upon the whole case, but only on a portion thereof. Because Rule 56(d) is part of the rule entitled "Summary Judgment," the order prescribed by this rule has been referred to as "partial summary judgment." Charles Wright, Arthur Miller, & Mary Kay Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial summary judgment is available only if it is possible to dispose entirely of one or more counts of the complaint. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216-17 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. 25, 28-29 (N.D.Ill.1985); Triangle Ink & Color Co. v. Sherwin-Williams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974). Thus, partial summary judgment cannot be rendered here on the IDR's motion because overruling of the first defense does not determine the other objections and permit allowance of the IDR claims on their merits.
However, Rule 56 provides a method whereby a court can narrow issues and facts for trial after denying in whole or in part a motion properly brought under Rule 56. Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. at 29. Rule 56(d) provides in part as follows:
If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy . . .
Here, facts not in controversy are set forth in the "Undisputed Facts" section hereinabove. Based thereon, Debtor's first objection to the IDR claim is by separate order overruled, and the IDR's claims are allowed to stand as timely filed, although the merits of such claims must be determined.
Standard for Granting Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides as follows: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." A defendant's motion for judgement on the pleadings should only be granted if it appears *835 beyond a reasonable doubt that there is no set of facts a plaintiff can prove to support his/her claim. Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957)); Susman v. Lincoln Am. Corp., 517 F. Supp. 931, 934 (N.D.Ill.1981). The court may not look beyond the pleadings, and all uncontested allegations to which the parties had an opportunity to respond are taken as true. In United States v. Wood, 925 F.2d 1580, 1581 (7th Cir.1991) (citation omitted). A Rule 12(c) motion for judgment on the pleadings may be granted only if no genuine issues of material fact remain to be resolved and the movant is entitled to judgment as a matter of law. Alexander v. Chicago, 994 F.2d 333, 335-36 (7th Cir.1993). As discussed below, Debtor's first objection is overruled, and so his motion for judgment thereon is denied.
DISCUSSION
The issue presented is whether a creditor who has not received proper notice of a Chapter 13 bankruptcy filing, or notice adequate to inform it of the debtor's business, should be permitted to file a late proof of claim. The Bankruptcy Code itself does not provide a time limit within which a creditor must file a proof of claim. In re Cole, 146 B.R. 837, 839 (D.Col.1992) (citation omitted); see United States v. Cardinal Mine Supply, Inc., 916 F.2d 1087, 1088 (6th Cir.1990). Rather, the Federal Rules of Bankruptcy Procedure fix the time limit for claims filing. Pursuant to Fed. R.Bankr.P. 3002(c), the creditor in a Chapter 13 proceeding is required to file a proof of claim within ninety days after the date first set for the meeting of creditors called under 11 U.S.C. § 341. There are several instances under Rule 3002(c) when the time for filing proofs of claim may be extended in a Chapter 13 proceeding, none of which apply to the present case. In addition, a bankruptcy judge is authorized by Fed. R.Bankr.P. 9006(b)(1) to enlarge time limitations on certain filings where the creditor has failed to file in a timely manner because of "excusable neglect." However, the language of Rule 9006(b)(3) clearly states that Rule 9006 cannot be used to expand the list of exceptions contained in Rule 3002(c).
The IDR first argues that the filing of late claims can be allowed "for cause" pursuant to Rule 3002(c)(1). That Rule provides:
On motion of the United States, a state, or subdivision thereof before the expiration of such period and for good cause shown, the court may extend the time for filing of a claim by the United States, a state, or a subdivision thereof.
Fed.R.Bankr.P. 3002(c)(1). Thus, for a party to preserve its right to file a late claim and still have it deemed timely, Rule 3002(c)(1) requires that the party must move for an extension within the ninety days allowed for filing timely claims. Because the IDR failed to seek an extension of the filing date before the bar date passed, this Court lacks authority under Rule 3002(c)(1) to allow the late filing for cause.
Another potential basis asserted for allowing the IDR to file a late claim is the Bankruptcy Court's equitable powers. Courts have held that a Bankruptcy Judge may use equitable power to allow the filing of a late proof of claim when a creditor has not received proper notice of a bankruptcy through no fault of its own. In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir. 1974); In re Harbor Tank Storage, Co., 385 F.2d 111 (3rd Cir.1967).
The statutory basis for the Court's equitable powers is said to be 11 U.S.C. § 105. However, § 105 is generally viewed as a source of authority to enter necessary orders only when authority to do so is otherwise found. "The statutory language [of § 105] thus suggests that an exercise of section 105 power be tied to another Bankruptcy Code section and not merely to a general bankruptcy concept or objective." 2 COLLIER ON BANKRUPTCY, ¶ 105.01 at 105-4 (15th ed. 1992).
The Seventh Circuit has reserved the question of whether a Bankruptcy Court may properly use its equitable powers to *836 allow the filing of late claims in a Chapter 13 case. In re Unroe, 937 F.2d 346, 350 (7th Cir.1991). Unroe did hold, however, that the Bankruptcy Court could consider equitable matters outside the scope of Fed. R.Civ.P. 15 when deciding to allow a late filed claim as an amendment to an earlier filed, timely claim. Id. at 349-50. In Unroe, the IRS sought to amend a tardy claim to a timely filed claim pursuant to Fed. R.Civ.P. 15(c). The Court reasoned that the IRS may amend a claim if it meets the Rule 15(c) standard of arising out of the same conduct, transaction or occurrence as a timely filed claim. Id. The Court further reasoned that amendment of claims is not allowed under Rule 15(c) if the claims arise out of different years, because separate years imply separate tax claims. Id. However, Unroe allowed amendment of the IRS's claim under the bankruptcy court's broad equitable jurisdiction. The opinion reasoned:
Generously read, the court's power to prevent `abuse of power' includes bending the time requirements for `raising of an issue.' Equitable jurisdiction to permit amendments out-of-time does not conflict with, but rather fulfills, the statutory backdrop for bankruptcy proceedings.
Id. Pursuant to that view, the opinion upheld the Bankruptcy Court decision which considered the following equitable factors in allowing amendment of the IRS claims: (i) Unroe was not unfairly surprised by the amendment, since her schedules and her original plan included 1983 taxes; (ii) unsecured creditors would receive a "windfall" if the claims were not allowed; (iii) the government would be deprived of funds to which it would be otherwise entitled. In re Unroe, 104 B.R. 77, 80 (Bankr.S.D.Ind.1989). The Seventh Circuit's reasoning in Unroe certainly supplies authority to allow the IDR new claims to be deemed timely in light of the undisputed facts here.
In support of Debtor's position that late filed claims must not be allowed, he cites the more recent Seventh Circuit opinion in In re Stavriotis, 977 F.2d 1202 (7th Cir. 1992). However, Stavriotis is distinguishable in many respects. In Stavriotis the IRS sought to amend its original claim in a Chapter 11 case, pursuant to Fed.R.Civ.P. 15. The Court reasoned that disposition of a motion to amend a proof of claim is within the sound discretion of the bankruptcy court, discretion not abused there by refusal to amend its claim. Id. at 1205. In Stavriotis, the bankruptcy court had disallowed the proposed amendment for several reasons: (1) The IRS's original claim was only about $11,000.00; (2) The IRS sought to increase its claim to over $2 million; (3) other creditors would be harmed by such amendment; and (4) the IRS offered no explanation or excuse for its failure to notify the court and other parties of its intent to increase its claim. Id. In the present case, this Court is not considering a motion for the IDR to amend its claim pursuant to Fed.R.Civ.P. 15. The IDR has sought leave of court to file its new claims late based on equitable and due process grounds when, through no fault of its own, it failed to receive adequate notice of the pending bankruptcy. This Court is allowing the IDR to file a late claim which will not prejudice the rights of the Debtor or any other creditors.
Some opinions allowing late filed claims, based upon equitable factors when a creditor has not received proper notice of a bankruptcy, are decided on due process grounds, provided that the creditor filed its claim immediately upon learning of the bankruptcy. See Cardinal Mine Supply, 916 F.2d at 1089; In re Coastal Alaska Lines, Inc., 920 F.2d 1428, 1430 (9th Cir. 1990) (court held that due process did not require that the court exercise its equitable jurisdiction and allow the late filing of a claim when the creditor received sufficient, although not formal, notice of a bankruptcy before the bar date passed); In re Avery, 134 B.R. 447 (Bkrtcy.N.D.Ga.1991); In re Mayville Feed & Grain, Inc., 123 B.R. 245 (Bkrtcy.E.D.Mich.1991). The Sixth Circuit in Cardinal Mine Supply recognized that a government entity is not a person entitled to due process under the Fifth Amendment. However, it held that basic principles of justice coupled with the *837 notice requirements of the Bankruptcy Code require that the late-filed claim of the IRS be allowed. While Cardinal Mine Supply was a Chapter 7 case in which the IRS was not scheduled as a creditor, its reasoning has been extended to cases considering late claims in Chapter 13 cases. See Cole, 146 B.R. at 841. Several authorities have held in Chapter 13 and Chapter 11 cases that due process requires allowance of late filed claims when a creditor is provided with inadequate notice of the bankruptcy and bar date. Cole, 146 B.R. at 841 (collecting cases); In re Remington Rand Corp., 836 F.2d 825 (3d Cir.1988) (Chapter 11 case); Reliable Elec. Co. v. Olson Constr. Co., 726 F.2d 620, 623 (10th Cir. 1984) (Chapter 11 case); In re Martinez, 51 B.R. 944, 947 (Bankr.D.Colo.1985) (Chapter 13 case); In re Barnett, 42 B.R. 254 (Bankr.S.D.N.Y.1984) (Chapter 13 case). The Cole opinion reasoned:
[S]ection 501 gives scant protection to a creditor who fails to file a proof of claim because it was deprived of notice . . . Unlike other Code chapters, no back door provisions under Chapter 13 otherwise allow the creditor with no notice to participate in distributions. For these reasons, a creditor who has received no notice in a Chapter 13 case should be entitled to file a late proof of claim notwithstanding the provisions of Bankruptcy Rules 3002(c) and 9006(b).
146 B.R. at 842. In a similar Chapter 13 case, In re Dodd, 82 B.R. 924 (N.D.Ill. 1987), the creditor maintained that it received inadequate notice of the bankruptcy filing. The court reasoned:
[I]mplicit in the strict time requirements of the bankruptcy rules is the assumption that a creditor has received notice of the bankruptcy petition. The basic principles of due process notice and the opportunity to be heard require no less . . . Indeed, courts which have faced a situation similar to the instant dispute have found that the debtor must demonstrate that notice has been provided before the Rule's time limits may be enforced.
82 B.R. at 928; citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950); New York v. New York, New Haven, and Hartford Railroad Co., 344 U.S. 293, 297, 73 S. Ct. 299, 301, 97 L. Ed. 333 (1953); see In re Yoder, 758 F.2d 1114, 1118 (6th Cir. 1985); In re Wm. B. Wilson Mfg. Co., 59 B.R. 535, 538-539 (Bankr.W.D.Tex.1986).
It is true that other courts have read the Rule 3002 time limitation on filing claims strictly, without allowances for equitable considerations, even when a creditor has not received proper notice of a bankruptcy, In re International Resorts, Inc., 74 B.R. 428, 429 (Bankr.N.D.Ala.1987). Courts have also reasoned that refusing to allow the filing of a late claim in Chapter 7 of a creditor who did not receive proper notice of a bankruptcy does not constitute a denial of due process because such creditor's claim is excepted from the bankruptcy discharge pursuant to § 523(a)(3). In re Chirillo, 84 B.R. 120, 122 (Bankr.N.D.1988). Such cases have held the time limits imposed by the bankruptcy rules are necessary to insure the swift distribution of the bankruptcy estate. See In re Good News Publishers, Inc., 33 B.R. 125, 126 (M.D.Tenn.1983). However, the weight of authority has recognized, on separate theories, the authority of the bankruptcy court to allow late claims when adequate notice of the bankruptcy proceeding is not provided to allow the filing of timely claims.
Did the IDR have adequate notice of Debtor's bankruptcy? While the IDR did have notice of the Debtor's bankruptcy filing, as demonstrated by the fact that it filed a timely proof of claim, the IDR argues that it did not receive adequate notice that the Debtor had previously operated under the name of "Lucky Liquors". Such notice was essential to inform the IDR about the relevance of this proceeding to the claims for Lucky Liquors tax debts.
The burden is on Debtor to insure that all creditors have been properly notified. In re Avery, 134 B.R. 447, 448 (Bankr.N.D.Ga.1991). For a creditor to have "adequate notice" of the filing of a bankruptcy petition, the notice must be sufficient *838 to satisfy requirements of due process in case of private parties and fundamental fairness in the case of governments. See, e.g., Cole, 146 B.R. at 840. The Court must determine whether the notice given was fair and reasonable under the circumstances. In re Daniel, 107 B.R. 798, 801 (Bankr.N.D.Ga.1989).
The notice received by the IDR was insufficient for two reasons. First, Debtor had been served with the IDR's state court complaints involving "Lucky Liquors'" asserted liability a month before he filed his Chapter 13 petition. The claim bar date passed, and Debtor proceeded to defend the tax claims for several months before informing the IDR representatives that he had filed in bankruptcy. This demonstrates that Debtor was well aware of the claims against the business before the bar date, but failed to schedule these claims or to inform the IDR attorneys about the pending bankruptcy. Second, the IDR did not have adequate notice of the bankruptcy proceeding because the debtor made significant omissions on his filings and failed to schedule the IDR claims arising out of Lucky Liquors' business. Debtor cannot argue he is prejudiced by the delay if the IDR is allowed to file its late claims. Debtor has been on notice of the IDR's intent to file a claim against him since he received the IDR's demand letters and was served with the state court complaints. Additionally, other Chapter 13 creditors cannot be prejudiced because the IDR is the only creditor to file any proof of claim.
In final support of its equitable argument, the IDR points out that it has at all times acted diligently and in good faith. This was demonstrated by the fact that IDR filed its proofs of claim for the Lucky Liquors' tax liabilities within days of learning that Debtor, who conducted business under that name, had filed for bankruptcy.
Debtor argues that the equities do not weigh in the IDR's favor because it had adequate notice of his bankruptcy. According to Debtor, the IDR had notice that Harold Anderson and "Lucky Liquors" were the same entity for tax purposes because the captions on the state court complaints filed by the IDR listed the defendant as "Harold Anderson, d/b/a/ `Lucky Liquors.'" That state court case name did not inform government counsel reviewing the bankruptcy of any connection between the two proceedings. Debtor has responsibility to set forth such information in the bankruptcy proceeding.
Fed.R.Bankr.P. 1005 requires that a bankruptcy proceeding title contain the tax identification number of the Debtor, and all names the Debtor has used in the past six years.[1]In re Sleepy Giant, 120 B.R. 6, 7 (Bankr.D.Conn.1990). Accuracy in the caption of the bankruptcy petition is of substantive importance not a mere matter of form. In re Austin, 46 B.R. 358, 360 (Bankr.E.D.Wis.1985). The caption of the case informs a creditor of exactly who filed the bankruptcy, so that a creditor has opportunity to determine whether it has a claim against that Debtor's estate. In re AM Intern. Inc., 142 B.R. 252, 256 (Bankr. N.D.Ill.1992).
The facts in Sleepy Giant are similar to those in the present case. In Sleepy Giant, the debtor operated a corporation registered with the state and taxing authorities as "Original Sleepy Giant, Inc." 120 B.R. at 7. The Debtor then incorporated and began doing business instead as "Sleepy Giant, Inc." Id. However, the Debtor failed to apply for a new tax identification number for "Sleepy Giant, Inc." or alert the tax authorities as to the successor corporation. Id. Subsequently, "Sleepy Giant" filed for bankruptcy, but the taxing authorities did not file proofs of claim for the outstanding "Original Sleepy Giant, Inc." tax liabilities. Id. The Debtor failed to list the name "Original Sleepy Giant, Inc." on its bankruptcy petition, in violation *839 of Bankruptcy Rule 1005. The Bankruptcy Court held that the debtor's failure to comply with Rule 1005 was the dominant cause for the failure of tax authorities to know that the debtor was the same as the "Original Sleepy Giant." Id. While Sleepy Giant was a Chapter 11 case, and the court based its opinion on a finding that the state taxing authorities had shown "excusable neglect" for not filing its claim,[2] the reasoning of that decision supports the proposition that equities weigh against a debtor when its own omission causes injury to a creditor. That is precisely what happened here.
Debtor states that his Chapter 13 Fact Form and Fee Application filed on December 31, 1987 (before the bar date passed) also gave the IDR notice that it should file a claim for the Lucky Liquor tax liabilities. The Form provided "Business Case Preparation more involved. In addition to personal budget, business budget also prepared." It does take considerable courage to argue that an obscure remark on a fee application can cure omissions to comply with Rule 1005. Moreover, there is no indication that the Fee Application was ever served upon the IDR. Indeed, the fact that Debtor consulted with his attorney regarding the business implications of his bankruptcy filing is a further indication that Debtor and his counsel knew that his business liabilities should have been properly scheduled. Relying on such an obscure snippet to claim proper notice upon the IDR is really grasping at straws.
In the present case, the equities clearly weigh in favor of the IDR. To hold otherwise would reward Debtor for being at least grossly careless (and indeed this record is consistent with intentional omission) in filing out his bankruptcy petition. A Debtor has an obligation to complete the bankruptcy petition thoroughly and accurately, along with the accompanying schedules. Any difficulty occasioned by Debtor's failure to do so should properly be imposed upon Debtor. In the present case, the Debtor has long been aware of the IDR's intent to collect the Lucky Liquors tax liabilities against him. His failure to schedule those liabilities and cause proper notice to be given to the IDR was a gross abuse of the bankruptcy process.
Claims filing deadlines assist the efficient administration of bankruptcy cases and have great importance. However, the general rule against allowing late claims must yield to the principle that creditors are entitled to due process (and, in the case of government creditors, fair notice). A Debtor may not hide necessary information from its creditors until it is too late and then assert the strict requirements for timely claims. He who asserts the strictness of rules should follow the rules strictly.
The IDR did not receive notice necessary under the circumstances to appraise it of Debtor's bankruptcy in time to file timely all its claims, and the omission of such notice was Debtor's fault.
The IDR has also asked this Court to allow its claim by adopting the reasoning of In re Hausladen, 146 B.R. 557 (Bankr. D.Minn.1992). Hausladen interprets the interplay between Bankruptcy Rule 3002 and 11 U.S.C. § 502. That decision considered whether Bankruptcy Rule 3002 actually prohibits the filing of late claims in Chapter 13 cases. There is a great split of authority on this issue. In brief, Hausladen held that § 502 provides narrow exceptions to claims which may be properly filed in a Chapter 13. According to Hausladen, because a late-filed claim does not fit into any of the enumerated exceptions to allowed claims, the late claim must be allowed regardless of the limitations found in Rule 3002. Id. at 559-60. That opinion maintained that Rule 3002 and 11 U.S.C. § 502 can be read together to allow late-filed claims. Id. According to Hausladen, Rule 3002's designation of a claim as either "timely" or "untimely" only affects the claim's treatment under the plan, but does not determine whether a claim is allowed. Id.
*840 The Courts disagreeing with Hausladen have held that, while Rule 3002 does not expressly state that late claims are barred, it does make timely filing a procedural prerequisite to allowance of such a claim. In re Zimmerman, 156 B.R. 192, 198 (Bankr.W.D.Mich.1993) (collecting cases illustrating the split of authority); In re Bailey, 151 B.R. 28 (Bankr.N.D.N.Y.1993); In re Rago, 149 B.R. 882 (Bankr.N.D.Ill. 1992) (Chapter 7 case); In re Stoecker, 151 B.R. 989 (Bankr.N.D.Ill.1993) (Chapter 7 case). That latter position is better reasoned, but does not apply to the present case where the creditor was blocked from timely filing by Debtor's imaginative gamesmanship.
The IDR also argues in its motion to allow the late claims that Debtor's claim for a turnover of funds assertedly paid improperly to the IDR must be brought via an adversary proceeding. It is unnecessary to consider the IDR's procedural objection at this time. However, when the question must be decided, Fed.R.Bankr.P. 7001 will of course prevail.
Finally, it is tempting to pass over Debtor's argument that pursuit by the IDR of its non-bankruptcy litigation violated the automatic bankruptcy stay. It so reminds one of the defendant who did in his parents, then complained of being an orphan. Here, the non-bankruptcy litigation proceeded as long as it did because Debtor and his counsel withheld from IDR counsel for some time the connection between the claims there and this bankruptcy. One cannot hide his bankruptcy case and then complain that the deceived party violated the automatic stay.
CONCLUSION
For the foregoing reasons, Debtor's first objection to the IDR's proofs of claim is overruled; and Debtor's motion for judgment on the pleadings is denied. The IDR's motion for summary judgment with respect to Debtor's first objection to its proofs of claim is denied because it does not dispose of the claims, but facts not contested are found to be determined under Fed.R.Civ.P. 56(d) (Fed.R.Bankr.P. 7056). Pursuant to those facts as found, the IDR claim is allowed to stand as timely filed. The Court will proceed to set the second and third defenses on a track toward trial.
NOTES
[1] Fed.R.Bankr.P. 1005 provides:
The caption of a petition commencing a case under the code shall contain the name of the court, the title of the case, and the docket number. The title of the case shall include the name, social security number and employer's tax identification number of the debtor and all other names used by the debtor within six years before filing the petition.
[2] Pursuant to Rule 9006(b)(3) excusable neglect is not allowed as an excuse for failure to file a timely proof of claim in Chapter 13 cases. In re Dodd, 82 B.R. 924 (N.D.Ill.1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547171/ | 73 F.2d 26 (1934)
E. I. DU PONT DE NEMOURS & CO.
v.
BARIDON.
No. 9955.
Circuit Court of Appeals, Eighth Circuit.
October 12, 1934.
*27 Willis J. O'Brien and John N. Hughes, both of Des Moines, Iowa (Hughes, O'Brien & Faville, of Des Moines, Iowa, and C. M. Spargo, of Wilmington, Del., on the brief), for appellant.
Charles E. Rendlen, of Hannibal, Mo., and Russell E. Ostrus, of Des Moines, Iowa (Rendlen, White & Rendlen, of Hannibal, Mo., on the brief), for appellee.
Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
SANBORN, Circuit Judge.
The Du Pont Company in the year 1928 was manufacturing and marketing a patented product known as "Semesan," a poisonous compound with a mercury base, and so labeled, which it advertised as a seed disinfectant or fungicide. The company recommended its use for the treatment of seeds, roots, and bulbs before planting, and represented it as a safe and beneficial plant disinfectant, and, by labels on the containers and by pamphlets furnished to customers through dealers, directed how it should be used. P. C. Baridon was a grower of, and dealer in, gladiolus bulbs, bulblets, and flowers. The bulbs and bulblets of the gladiolus are usually treated before planting with a fungicide or disinfectant to eradicate certain diseases to which they are subject. Mr. Baridon had heard a Du Pont salesman recommend "Semesan" for the treatment of gladiolus bulbs and bulblets before planting, and he was familiar with the defendant's sales literature advocating such use. He had used Semesan in 1927 in a weaker solution than was recommended by the company, apparently without serious injury to the bulbs and bulblets treated. In 1928 he treated some twelve million of his bulblets and a large number of his bulbs with this product, which he procured from a dealer in Des Moines, who in turn had bought it from the Du Pont Company. He procured from this same dealer pamphlets issued by the company which gave directions as to the strength of the solution to be used and the length of time the bulbs and bulblets should be immersed in order to secure the best results. The evidence shows that, so far as the strength of the solution and the period of immersion were concerned, Baridon in the treatment of his bulbs and bulblets was well within the teachings contained in the directions. He placed the bulbs and bulblets in sacks and dipped them into tanks containing the solution, leaving them there for less than the prescribed time. After removing them from the solution, he dried the bulbs, but did not either dry or immediately plant the bulblets. The sacks were drained, but the bulblets were left in the damp sacks, which were placed in barrels and shipped from Des Moines, Iowa, where they were treated, to Hampton, Iowa, where they were to be planted. They remained in the barrels for at least one week, and possibly two, before being put in the ground. Apparently all of that time they were damp with Semesan solution. Baridon explains this procedure subsequent to treatment by saying that it was customary for growers to keep the bulblets, which have a hard shell, damp for some considerable time before planting them, to soften the shell, and that the directions issued by the Du Pont Company did not prescribe a different treatment. After planting, the bulbs grew, but the bulblets did not. They were virtually destroyed by something, because bulblets from the same bins which were not treated with Semesan grew normally. Baridon attributed the failure of the treated bulblets to grow to the negligence of the Du Pont Company in failing to give proper directions for their treatment. In other words, he says that treating his bulblets with Semesan as directed by the Du Pont Company killed them, and that the Du Pont Company knew or should have known that such treatment would be likely to kill them. The company, on the other hand, attributed the destruction of Baridon's bulblets to his failure to dry them or to plant them immediately after they were treated, and to their being left damp and packed in wet sacks in barrels without necessary ventilation.
Baridon brought suit, alleging the representations made by the Du Pont Company as to the suitability and safety of its product for disinfecting gladiolus bulbs and bulblets, its giving of directions for the use of Semesan, his reliance upon the representations and directions given, the harmful character of the Semesan when used as directed, which the Du Pont Company knew or should have known, and the loss of his bulbs and bulblets and his consequent damage.
The Du Pont Company admitted making the Semesan, but denied that it was harmful when used as recommended; and alleged that there was no privity of contract between *28 plaintiff and defendant; that it had printed upon the labels on the Semesan containers a nonwarranty of results; and that if the plaintiff suffered any loss, it was due to his own neglect and came from causes other than the treatment of the bulbs and bulblets with Semesan according to directions.
In addition to what has already been stated, the plaintiff's evidence tended to show that a Mr. Bailey, a nursery man of Minnesota, had treated his evergreen seedlings with Semesan as directed by the Du Pont Company, and that such seedlings had been damaged and destroyed; that the Du Pont Company had been notified by Mr. Bailey of his difficulties with its product; that several other gladiolus growers had used Semesan as directed, to their injury, although when used in a weaker solution than that prescribed it had proved either harmless or beneficial.
The defendant's evidence tended to show that Semesan, when used as directed, was beneficial; that gladiolus growers and others had used it with satisfactory results; that Mr. Bailey's trouble was in failure to follow directions, and that the plaintiff's trouble was due to his failure properly to care for his bulblets after they were treated.
The court charged the jury, in effect, that if they found from the evidence that the plaintiff had strictly followed the directions of the Du Pont Company in the treatment of his bulblets, and that his bulblets were destroyed solely because Semesan, when used in accordance with the directions of the Du Pont Company, was a harmful and dangerous product, the plaintiff was entitled to recover. The jury returned a verdict for $7,500 in favor of the plaintiff, and the defendant has appealed from the judgment.
The defendant challenges the correctness of the court's charge and the sufficiency of the evidence to support the verdict. It contends:
(1) That the fact that the product was patented and sold as a patented product relieves the defendant from any responsibility for any negligence with respect to the directions for its use.
(2) That the nonwarranty of results clause printed on the label attached to the containers constituted a complete defense.
(3) That the defendant did not owe to the plaintiff any duty, for the reason that he did not purchase the Semesan from it, but purchased it from a dealer, and hence there was no privity of contract between the plaintiff and the defendant.
(4) That there was no substantial evidence of negligence on the part of the defendant.
The first two contentions, we think, merit little discussion. If the defendant owed the plaintiff the duty to use reasonable care with respect to the giving of proper directions for the use of Semesan, and was liable for a breach of that duty, it would seem to be utterly immaterial whether the product was a patented or an unpatented one.
The nonwarranty of results printed on the label reads as follows: "The use of Semesan being beyond the control of the manufacturer, no guarantee, expressed or implied, is made as to the effects of such use, whether or not in accordance with these directions or claimed so to be." Clearly the most that could be claimed is that the clause notified the plaintiff that if his use of Semesan did not produce the effects which the defendant had represented that it would produce, there would be no cause of action for a breach of warranty. There was nothing about the clause to place him on notice that in using Semesan in accordance with directions he was acting at his own peril, and that if it destroyed his crop, no action for negligence would lie.
The defendant seeks to invoke the general rule that a manufacturer or vendor of an article is not liable to third persons, with whom he has no contractual relations, for negligence in the manufacture or sale of such article. The plaintiff, on the other hand, contends that this case falls not within the rule, but within the exceptions to it.
This rule and its exceptions and the reasons for both have been often and elaborately discussed. Perhaps the leading cases are Huset v. J. I. Case Threshing Mach. Co. (C. C. A. 8) 120 F. 865, 61 L. R. A. 303, and MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, 1051, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440. The opinion in the former case was written by Judge Walter H. Sanborn, and in the latter by Judge (now Mr. Justice) Cardozo. See, also, Baxter v. Ford Motor Company et al., 168 Wash. 456, 12 P.(2d) 409, 15 P.(2d) 1118, 88 A. L. R. 521, and annotation page 527; Minutilla v. Providence Ice Cream Company, 50 Rawle I. 43, 144 A. 884, 63 A. L. R. 334, and annotation page 340; Flies v. Fox Brothers Buick Company et al., 196 Wis. 196, 218 N.W. 855, 60 A. L. R. 357; Victory Sparkler & Specialty Company v. Price, 146 Miss. 192, 111 So. 437, 50 A. L. R. 1454, and annotation *29 page 1462; Foster v. Ford Motor Company, 139 Wash. 341, 246 P. 945, 48 A. L. R. 934, and annotation page 939; Heckel v. Ford Motor Company, 101 N. J. Law, 385, 128 A. 242, 39 A. L. R. 989, and annotation page 992; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A. L. R. 972; Chysky v. Drake Brothers Company, 235 N.Y. 468, 139 N.E. 576, 27 A. L. R. 1533; Davis v. Van Camp Packing Company, 189 Iowa, 775, 176 N.W. 382, 17 A. L. R. 649; Birmingham Chero-Cola Bottling Company v. Clark, 205 Ala. 678, 89 So. 64, 17 A. L. R. 667; Windram Manufacturing Company v. Boston Blacking Company, 239 Mass. 123, 131 N.E. 454, 17 A. L. R. 669, and annotation page 672.
If Semesan had been a disinfectant intended to affect human life and which would have been destructive or injurious if improperly prepared or used, its manufacturer would have been under the obligation to use care commensurate with the dangers involved. In Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455, a poison was falsely labeled. Sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the original seller, who affixed the label. Speaking of this case, in MacPherson v. Buick Motor Co., supra, Judge Cardozo said: "A poison, falsely labeled, is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury."
In Hruska v. Parke, Davis & Co. (C. C. A. 8) 6 F.(2d) 536, page 537, which involved a preparation for injection into the human body known as "Camphor Solution Neutral," this court said:
"It must be borne in mind this is not the usual case of manufacture and sale discussed by the authorities. On the contrary, defendant in this case is conducting a highly technical and specialized business, that of a manufacturing chemist. The products so prepared by it are placed on the market, to be purchased and employed in curing the ills of the human body and in preserving human life. The defendant deals with the public to be treated with its preparations and drugs, not on an equal footing, but with the understanding the public will trust to the superior intelligence and general knowledge of defendant, its agents and employees, in the manufacture and preparation of its products; also, when its compounds, drugs, and preparations are placed on the market, that they are safe, harmless and beneficial in use. In other words, the public relies on the truth of such statements employed in advertising by the defendant, and does not seek expert advice from others regarding the propriety of the use of the commodities defendant has manufactured and placed on the market. Defendant company is constantly dealing with human health and human life. It manufactures and sells compounds and drugs represented to be harmless when employed as directed, and, being so represented to the public, they must be, as represented, harmless in use."
See, also, Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S.E. 118, 5 L. R. A. 612, 614, 20 Am. St. Rep. 324; Willson v. Faxon, Williams & Faxon, 208 N.Y. 108, 101 N.E. 799, 800, 47 L. R. A. (N. S.) 693, Ann. Cas. 1914D, 49.
The defendant, however, contends that, because its product was intended to affect only plant life, and property alone was subject to injury, it owed no duty to the plaintiff, since it had no contract with him. With that contention we do not agree. Through its advertising and literature the defendant had expressly invited the plaintiff and other growers to use its product for the purpose of disinfecting bulbs and bulblets, and, since it had undertaken to direct the manner in which it should be used, the users had a right to assume that the company had exercised such care as an ordinarily prudent manufacturing chemist would usually have used in giving the directions for the use of such a product, and had not knowingly prescribed a use which would destroy their plants.
The following cases appear to support the view that substantially the same rule applies to sales of dangerous products whether intended to affect human life or to affect property:
Kolberg v. Sherwin-Williams Co., 93 Cal. App. 609, 269 P. 975, which involved the destruction of orange trees by a spray known as "Citromulsion." The agents of the defendant in that case had represented that the spray would kill the scale and not injure the trees, fruit, or buds. It was also stated that the spray had been used on other groves with "good results." It was shown that Citromulsion was utterly unfit as a spray for orange trees and was inherently dangerous to them. The court, in sustaining a judgment for the plaintiff, said (page 977 of 269 P.): "The liability of the defendant rests upon the sound rule that a manufacturer or seller of an article inherently dangerous to life or property is liable for injuries to the ultimate consumer who has purchased through a middleman. 17 A. L. R. 674, 683."
*30 Ellis et al. v. Lindmark et al., 177 Minn. 390, 225 N.W. 395, which involved injury to chickens caused by linseed oil negligently shipped by a wholesaler to a retailer as cod liver oil, and negligently sold by the retailer to chicken raisers for their chickens. The court held that, under the law, both wholesaler and retailer were liable, saying (page 397 of 225 N. W.): "That the negligence resulted in injury to property and not to the person should not prevent recovery."
Murphy v. Sioux Falls Serum Co., 44 S. D. 421, 184 N.W. 252, in which the court held that the plaintiff, who showed that hog cholera serum was properly administered by a veterinary, and that the hogs died, made out a prima facie case against the manufacturer of the serum.
White v. National Bank of Commerce et al., 99 Cal. App. 519, 278 P. 915, in which an orchard owner was allowed damages for injuries to fruit trees caused by a spray, although not on the basis of negligence.
Cases which seem to support the contrary view are: Windram Manufacturing Co. v. Boston Blacking Co., supra, 239 Mass. 123, 131 N.E. 454, 17 A. L. R. 669; Tompkins v. Quaker Oats Co., 239 Mass. 147, 131 N.E. 456; and the case of Huset v. J. I. Case Threshing Mach. Co., supra (C. C. A.) 120 F. 865, 61 L. R. A. 303, if the exceptions to the general rule as stated therein are to be taken literally.
In addition to the cases which recognize the duty of a manufacturer to a third person, although the manufacturer's negligence may result in the damage or destruction of property only, we have those cases in which the article manufactured, although dangerous to both life and property, damaged only property. Among these are: Quackenbush v. Ford Motor Co., 167 A.D. 433, 153 N. Y. S. 131, holding that a third person, who purchased a car with defective brakes, could recover damages from the manufacturer for injury to the car resulting when it went over an embankment because of the defects. United States Radiator Corporation v. Henderson et al. (C. C. A. 10) 68 F.(2d) 87, in which the court held that the manufacturer of a furnace purchased by the plaintiff from a dealer was liable for the burning of the plaintiff's house which the jury found to have been the result of the defendants' negligence in failing to properly design and construct the furnace.
A rule which would permit a manufacturing chemist, who offered his product to the public for use in the treatment of plants or animals, to so carelessly prepare his product or to so carelessly direct the manner in which it was to be used as to destroy or injure the property of one who purchased it from a dealer and who in ignorance of its dangers used it for its intended purpose and in accordance with the directions of the manufacturer, and which would deny to the person whose property was injured any redress, although the destruction of his property was the natural, probable, and almost certain consequence of the manufacturer's negligence, should not, we think, receive the sanction of this or any other court. Our conclusion is that a manufacturer of a proprietary product intended for the specific purpose of preventing or curing the diseases of plants, animals, or human beings, which product when properly used for its intended purpose is either harmless or beneficial, but which when improperly used will cause or is likely to cause material injury, who undertakes to direct or recommend the manner in which it shall be used, owes the duty to those whom the manufacturer, through his advertising and representations, invites to purchase and use the product, of exercising reasonable care commensurate with the dangers involved in giving such directions and in the making of such recommendations. The manufacturer is not an insurer that in every instance and under all circumstances no injury will result from the use of his product as directed or recommended, but if he knows or in the exercise of reasonable care should know that if his product is used as directed or recommended it will cause or be likely to cause material injury, then he is liable to any person who, in reliance upon his representations, directions, and recommendations, uses the product for the purpose and in the manner directed and recommended by the manufacturer and who suffers injury as a direct result, unless it appears that the user also knew or in the exercise of reasonable care should have known that the use of the product would be injurious or would be likely to cause the injuries complained of.
For the plaintiff to recover damages in this case, we think it was necessary that it should appear from the evidence:
1. That the use of the product as directed or recommended by the Du Pont Company would ordinarily cause or be likely to cause material injury to gladiolus bulblets.
2. That the Du Pont Company knew or in the exercise of reasonable care should have known that its product if used as directed or *31 recommended by it would cause or be likely to cause such injury.
3. That the plaintiff used it strictly in accordance with the recommendations and directions.
4. That such use was the proximate cause of the injuries complained of.
5. That the plaintiff did not know and was not charged with knowledge that the use of the product would cause such injuries.
We think there are several reasons why a new trial will have to be granted in this case.
First. Under the charge of the court the liability of the defendant was virtually that of an insurer of the safety of its product when used as directed by it, since its liability was made to depend alone on whether the product, when so used, was imminently dangerous. Assuming that the plaintiff's evidence was sufficient to justify an inference of knowledge on the part of the defendant, the defendant was entitled to have the jury determine whether, if the product was imminently dangerous when used as directed, that fact was known or in the exercise of reasonable care should have been known to the defendant. The mere fact of injury to the bulblets from the use of Semesan would not be sufficient.
As was said by Judge Phillips in his dissenting opinion in United States Radiator Corporation v. Henderson et al., supra (C. C. A. 10) 68 F.(2d) 87, 95:
"It is an established principle that, except in exceptional cases falling within the doctrine of res ipsa loquitur, the mere fact that an accident has resulted in injury to a person or property does not authorize the presumption or inference of negligence on the part of a defendant. Looney v. Metropolitan R. R. Co., 200 U.S. 480, 486, 26 S. Ct. 303, 305, 50 L. Ed. 564; Sweeney v. Erving, 228 U.S. 233, 238, 33 S. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905; Leahy v. Detroit, M. & T. Short Line R. (C. C. A. 6) 240 F. 82.
"In Looney v. Railroad Co., supra, the court said: `A defect cannot be inferred from the mere fact of an injury.'"
It must be remembered that we are not dealing here with a product which was utterly unfit for the purpose for which it was intended or which was imminently dangerous under all circumstances. It could be used with safety. The Du Pont Company, from aught that appears in the evidence, may have used every precaution to determine the proper manner for the use of its product in treating gladiolus bulblets and may not have known and may have had no reason to know that its directions if followed would be likely to cause injury to such bulblets. Notice that Mr. Bailey had had unsatisfactory results in treating his evergreen seedlings would not, we think, constitute notice to the defendant that its directions with reference to gladiolus bulblets were improper. There was, in our opinion, no substantial evidence to justify a finding that the Du Pont Company knew or in the exercise of reasonable care should have known that the use of Semesan as recommended by it would produce the results which it is claimed were produced. The mere fact of injury to these particular bulblets and to the bulblets of other growers in several instances not called to the attention of the Du Pont Company would not be sufficient to indicate knowledge on its part that the product when used as directed would cause or be likely to cause injury.
There is another defect in the plaintiff's proof. It shows that beyond a certain point he did not strictly comply with the defendant's directions for the use of Semesan. After immersion, he left his bulblets damp with the solution for a period of one to two weeks. The directions on the label indicated that, after treatment, "seeds" should be dried. Whether that would constitute a direction that bulblets should also be dried may be debatable, but, in any event, the defendant did not instruct the plaintiff to continue the treatment by leaving the bulblets damp with the poisonous material for a week to two weeks after immersion. As we read the plaintiff's testimony, he virtually admits that the leaving of the bulblets in damp sacks in barrels may be partly responsible, at least, for their failure to grow. The defendant's evidence showed that in the trial of a suit by Bailey against the Du Pont Company, the plaintiff stated with reference to the bulblets: "The reason they suffered more is because the small bulb is packed tight in containers and didn't have an opportunity to get ventilation."
Evidence which is equally consistent with two hypotheses tends to support neither. Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 663, 664, 21 S. Ct. 275, 45 L. Ed. 361; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 478, 46 S. Ct. 564, 70 L. Ed. 1041; New York Central R. Co. v. Ambrose, 280 U.S. 486, 489, 490, 50 S. Ct. 198, 74 L. Ed. 562; Gunning v. Cooley, 281 U.S. 90, 94, 95, 50 S. Ct. 231, 74 L. Ed. 720; Ewing *32 v. Goode (C. C.) 78 F. 442, 444; Stevens v. White City, 285 U.S. 195, 203, 204, 52 S. Ct. 347, 76 L. Ed. 699; Eggen v. United States (C. C. A. 8) 58 F.(2d) 616, 620; Claywell v. Inter-Southern Life Ins. Co. (C. C. A. 8) 70 F.(2d) 569, 571; P. F. Collier & Son Company v. Hartfeil (C. C. A. 8) 72 F.(2d) 625.
Our conclusion is that the plaintiff did not make out his case against the defendant, and that a verdict should have been directed against him.
The judgment is reversed and the case remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547187/ | 73 F.2d 470 (1934)
JENNINGS
v.
UNITED STATES.
No. 7407.
Circuit Court of Appeals, Fifth Circuit.
November 10, 1934.
*471 R. Douglas Feagin, of Macon, Ga., and O'Glen Ray, of Atlanta, Ga., for appellant.
T. Hoyt Davis, U. S. Atty., and A. Edward Smith, and H. G. Rawls, Asst. U. S. Attys., all of Macon, Ga., and Jos. H. San, Atty., Department of Justice, of New York City.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
HUTCHESON, Circuit Judge.
Appellant, a sufferer from bronchial asthma, brought this suit on a war risk insurance policy, claiming total and permanent disability at the date of his discharge and before his policy lapsed for nonpayment. The evidence shows that he lived in many places where he did various kinds of work until 1927, when he married; that thereafter his wanderings and his workings were more circumscribed. It is not questioned that during this whole period he has had some disability and that during all of it he has drawn compensation; it being an admission in the cause that he had enough compensation due him to have carried his policy to 1922. There is the usual contention that his work record disproves his disability, and the counter one that what he has been doing has not been really work, it has been merely a pretense of work under the guise of which charity has been extended to him, and that such work as he did do has been at the expense of injury to his health. Cf. United States v. Vineyard (C. C. A.) 71 F. (2d) 624.
Under a charge fully and fairly submitting the issues, and on a record amply sustaining the verdict, a jury found against appellant, on his claim of total and permanent disability. He is here assigning as reversible error, rulings on the admission of evidence. It cannot be doubted, in fact, appellant recognizes, that abstract inerrancy in the application of evidential rules is hardly possible, and never an essential to a valid trial, in the federal courts. He recognizes, too, that the burden he carries to secure a reversal for rulings on evidence requires more than a showing of nominal error. Community Natural Gas Co. v. Henley (C. C. A.) 54 F.(2d) 59. Cf. Wigmore, Vol. 1 (2nd Ed.) p. 201, et seq.
In the trial of a case in the federal court, the judge sits as an administrator. The discharge of his function requires the exercise of judgment and discretion. Especially is this true in the application and use of rules of evidence. Wigmore on Evidence, vol. 1 (2d Ed.) pp. 121, 122, 166, 167. Means, not ends, these rules serve to keep a trial within bounds, and, by eliciting and confining the case to the best evidence available, to bring the truth to light. Their proper application in the dramatic atmosphere of a jury trial demands of the judge as administrator the exercise of skill of the highest order, and a discretion which, though it may not be abused, is a wide one. When that discretion is exercised in admitting evidence on cross-examination over the objection that it is immaterial, that is, that it has no tendency to prove any of the tendered issues, there is a heavy burden on the complainant to show clearly, not only that the evidence was immaterial, but that it was an abuse of discretion to admit it. What is really complained of in that case is not the irrelevancy, but the prejudice. Miller v. Continental Shipbuilding Corporation (C. C. A.) 265 F. 158; Community Natural Gas Co. v. Henley, supra. When the evidence is admitted over the objection, not as above, that the evidence is collateral and extraneous to the issue, that though immaterial and irrelevant its effect is to mislead and prejudice, but that what is offered as evidence is not in form evidence, the trial judge's discretion is restrained *472 within narrower bounds, the complainant's burden to show prejudice is less onerous.
Appellant claims both kinds of error here. He claims that there was error in permitting plaintiff[1] and his wife[2] to testify over the objections of irrelevancy and prejudice to plaintiff's compensation ratings and drawings. This testimony was admitted with the cautionary instruction to the jury, repeated in the charge, that compensation and insurance were entirely distinct, the drawing of one was no defense to the payment of the other. They were told that the evidence was admitted solely for the bearing it might have on whether plaintiff's working had been due to want of necessity, or to want of ability. He claims, too, that there was error in permitting Martin, employment manager for the Dalton Company, and keeper of its work records, to identify, and defendant, through him, to offer in evidence, a portion of plaintiff's employment and work record with the Dalton Adding Machine Company of Norwood, Ohio, from August 3, 1926 to December 7, 1926. This was offered over the objection as to the record of the doctor's findings[3] that it was "hearsay," not a part of any governmental record, and was inadmissible on any ground, and as to the weekly earnings record,[4] that "the issue is not whether plaintiff worked or not; that the witness says he didn't know plaintiff, and that there is no proof that the record is correct."
In assigning error on the evidence as to the receipt of compensation, appellant does not attack the way of its proving. He could not do so, for, if it was relevant, it was the best evidence on the point, coming, as it did, on cross-examination from those who had received and had had the benefit of it. The complaint is that the fact itself had no relevancy to the issue in the suit, and that it had a greatly prejudicial effect by causing the jury to offset the government's bounty to appellant against its obligation to him.
We think this evidence was relevant and that there was no error in the ruling. Evidence, inadmissible generally, or for a particular purpose, may be admissible for another. The objected to evidence is of that kind. Inadmissible as a defense to plaintiff's suit if he was in fact totally and permanently disabled, it was admissible on cross-examination in searching out whether in fact he was.
Brought years after his injury had occurred and he had ceased payments on his policy, plaintiff's suit affirmed, not merely that he was when the suit was brought, but that he has continuously been, totally disabled. To maintain this, he had to give an account, clear and consistent with his present claims, of all his actions and his nonactions, his conduct of affirmation and of negation, throughout the long period since his last policy payment. Defendant was entitled, if it could, to pierce the obscurities in which time and the unsatisfactory nature of the evidence relied on has involved plaintiff's claim by bringing into the light, not only his acts, but the motives which gave them rise. It had the right to ascertain, not only what the plaintiff had been doing about working, but why he had been doing it. When the plaintiff's failure to work was put forward as evidence of his disability, it was defendant's right on cross-examination to develop facts throwing light on what his failure to work was due to, whether to inability or to the lack of a felt necessity. Both in the admission of the evidence and in instructing on it in the charge, the trial judge made clear the limited purpose and effect of its admission. As so admitted and limited, there was no error. Taylor v. United States (C. C. A.) 71 F.(2d) 76; Rose v. United States (C. C. A.) 70 F.(2d) 68; Meyer v. United States (C. C. A.) 65 F.(2d) 509, 512.
We think appellee is right, too, that the admission was not reversible error because the evidence objected to brought no new matter into the case. It merely proved a little more in detail what, by the admission that compensation had paid the premiums up to *473 1922, and by the testimony offered without objection, plaintiff had already gotten in. Community Natural Gas Co. v. Henley, supra; Shwab v. Doyle (C. C. A.) 269 F. 321; United States v. Dudley (C. C. A.) 64 F.(2d) 743; U. S. v. Motory (C. C. A.) 71 F.(2d) 798.
The other errors assigned are of a different nature. They challenge the admissibility of the offered proof on the ground of its form. One of them, that to the admissibility of Dr. Scott's notations, is based on the wholesome and beneficial rule that hearsay, that kind of statement which does not admit of testing by cross-examination, is, unless within some recognized exception, inadmissible. The other, to the admission in evidence from the same records of plaintiff's weekly earnings card, asserts that the card is inadmissible because plaintiff's work earnings are not in issue, and because the card is not evidence for want of proof that the records were correctly kept.
We think the doctor's notations on the card were admissible as a part of the res gestæ of plaintiff's application for work. They were shown to have been made under circumstances making it reasonably apparent that they truly represented the facts they purported to set down. They are in effect declarations by plaintiff himself that he was fit and able to work. It appears clearly enough from plaintiff's signature on the reverse of the card, and from the oral testimony in the case, that plaintiff was required to and did furnish and submit a medical certificate as evidence of his ability, and as a basis of his right to work. Meyer v. United States (C. C. A.) 65 F.(2d) 509. The card with its notations comes from a source, it was kept under circumstances, which rebut the idea of its being a fabrication against plaintiff's interest. It was created in connection with and as a part of his actions and declarations in the furtherance of his own interests. It seems clear to us that there was no error in admitting the card and the notations on it.
We think, too, that the weekly earnings card was properly admitted over the objections urged against it. It was certainly relevant. One of the most illuminating pieces of evidence, not only in this case, but in all cases of this kind, is the plaintiff's actual work record. The weekly earnings card objected to was a part of his work record with the Dalton Company. Neither are we in doubt that it was properly accredited and proven up. It came from the proper custody; it was vouched for by the employment manager having charge of all the company's work records. It was not necessary to produce or account for the person or persons who had made the notations in the absence of some proof throwing suspicion upon the genuineness of the record itself.
It is undisputed that the records from which these cards came were kept as a part of the ordinary routine of the employment department of a large business employing many men. It is also undisputed that these card records offered in evidence, like the cards of all the other employees, were made, gathered, and retained in the files in connection with, and as a part of, the routine business of the company. These particular cards were offered in evidence by the manager of that department, the custodian of its records. To require more prima facie proof for their accrediting than was furnished in this case is inconsistent with the proper understanding of modern methods of doing business, and therefore of legal common sense. Rules of evidence are to aid, not to obstruct, trials; they must be, they are, so applied. It was well within the sound discretion of the trial judge to accept and admit the proffered evidence. Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co. (C. C. A.) 18 F.(2d) 934; United States v. Becker (C. C. A.) 62 F. (2d) 1007.
The judgment is affirmed.
NOTES
[1] He testified that he had drawn compensation since his discharge; his rating, ranging from partial, minimum of $10 to a maximum total in 1930 of $100, had averaged throughout hardly 50 per cent.
[2] She testified that since 1929 plaintiff had not worked at all, but his living had consisted of "what little compensation he draws"; that the largest had been $100, but that was now cut down under the Economy Act (38 USCA § 701 et seq.) to $45.
[3] On the back of plaintiff's signed application card, a part of the company's employment record in Martin's custody, appears the record of his physical examination made by Dr. Scott, now dead, the witness identifying his signature, showing no disease with heart and lungs O. K. application accepted.
[4] From the same record, plaintiff's weekly earnings card showing his earnings while working there was introduced through the same witness. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1693707/ | 884 So.2d 471 (2004)
John Phillip VROBEL, Petitioner,
v.
STATE of Florida, Respondent.
No. 4D04-2828.
District Court of Appeal of Florida, Fourth District.
October 6, 2004.
John Phillip Vrobel, Moore Haven, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel L. Wiley, Assistant Attorney General, West Palm Beach, for respondent.
PER CURIAM.
John Vrobel timely filed a notice of appeal from the denial of his Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence. We treat the notice of appeal as if the proper remedy had been sought and exercise this court's certiorari jurisdiction. Fla. R.App. P. 9.040(c); McCalla v. State, 814 So.2d 1209 (Fla. 4th DCA 2002).
Vrobel filed his motion within sixty days of the trial court's receipt of this court's mandate following affirmance of Vrobel's conviction and sentence on direct appeal. Vrobel v. State, 873 So.2d 336 (Fla. 4th DCA 2004). The motion to mitigate sentence was timely. Fla. R.Crim. P. 3.800(c); Roauer v. State, 697 So.2d 1303, 1304 (Fla. 2d DCA 1997).
Accordingly, we quash the order denying the motion as untimely and remand the case to the circuit court for consideration of the motion.
FARMER, C.J., KLEIN and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2690219/ | [Cite as State ex rel. Roxbury v. Indus. Comm., 138 Ohio St. 3d 91, 2014-Ohio-84.]
THE STATE EX REL. ROXBURY, APPELLANT, v. INDUSTRIAL COMMISSION OF
OHIO ET AL., APPELLEES.
[Cite as State ex rel. Roxbury v. Indus. Comm., 138 Ohio St. 3d 91,
2014-Ohio-84.]
Workers’ compensation—Temporary-total-disability compensation—Voluntary
abandonment of the work force—Claimant maintained physical ability to
perform sedentary work—Court of appeals’ judgment denying a writ of
mandamus affirmed.
(No. 2012-0815—Submitted October 8, 2013—Decided January 15, 2014.)
APPEAL from the Court of Appeals for Franklin County, No. 11AP-125,
2012-Ohio-1310.
____________________
Per Curiam.
{¶ 1} Appellant, Delores M. Roxbury, appeals the judgment of the court
of appeals denying her request for a writ of mandamus that would require the
Industrial Commission to award her temporary-total-disability compensation
based on her allowed psychological condition.
{¶ 2} Because the commission did not abuse its discretion when it
concluded that Roxbury’s lack of earnings was not due to her psychological
condition and that her failure to seek other employment or pursue vocational
rehabilitation was evidence that she had voluntarily abandoned the workforce, we
affirm the judgment of the court of appeals.
{¶ 3} Roxbury was injured while working on September 21, 2004. Her
claim was originally allowed for lumbar sprain and related injuries. She collected
temporary-total-disability compensation until July 10, 2006, when the
commission concluded that her physical injuries had reached maximum medical
SUPREME COURT OF OHIO
improvement (“MMI”).1 She withdrew an appeal of that decision before a
hearing was held.
{¶ 4} A year later, Roxbury filed a motion to add a psychological
condition to her claim. At the same time, she requested temporary-total-disability
compensation as a result of the condition. On her application, Roxbury indicated
that she had not worked since her injury in 2004 and that she was currently
receiving Social Security disability benefits. She submitted the report of
Raymond Richetta, Ph.D., of Weinstein & Associates, Inc., in support of her
application.
{¶ 5} On November 14, 2007, a hearing officer approved the additional
condition of “dysthymic disorder, late onset,” but denied temporary-total-
disability compensation. The hearing officer relied on the opinion of Walter
Belay, Ph.D., who had conducted an independent medical examination of
Roxbury. Dr. Belay described Roxbury’s symptoms as mild depression. He
agreed with the diagnosis of dysthymic disorder but stated that in his opinion, she
was not temporarily and totally disabled as a result of that disorder.
{¶ 6} After the commission denied compensation for temporary total
disability for the psychological condition, Roxbury filed for permanent-total-
disability compensation based on her allowed physical and psychological
conditions. In April 2009, the commission denied her request, finding that none
of her allowed conditions rendered her totally unable to work, the necessary
threshold for permanent total disability. The commission concluded that
Roxbury’s psychological disorder had not yet reached MMI and that she
maintained the physical ability to perform sedentary work.
1. “Maximum medical improvement” is defined as a treatment plateau at which no fundamental
change is expected within a reasonable medical probability in spite of continuing medical or
rehabilitative procedures. Ohio Adm.Code 4121-3-32(A)(1).
2
January Term, 2014
{¶ 7} On July 16, 2009, Roxbury consulted with Jamie Lichstein, Psy.D.,
who, like Dr. Richetta, was affiliated with Weinstein & Associates. Dr. Lichstein
evaluated Roxbury for temporary-total-disability compensation for her
psychological condition.
{¶ 8} Roxbury filed a request for temporary-total-disability
compensation supported by Dr. Lichstein’s opinion. A staff hearing officer
awarded temporary-total-disability compensation. The full commission granted
reconsideration and, upon further review, denied her request for compensation.
The commission concluded that there was insufficient evidence that Roxbury was
disabled as a result of the allowed psychological condition. The commission
rejected Dr. Lichstein’s opinion because the doctor had not reviewed all the
relevant prior medical evidence before retrospectively certifying that Roxbury had
been temporarily and totally disabled as a result of her psychological condition
since November 2007. The commission determined that Roxbury had voluntarily
abandoned the entire workforce and thus the claimed period of disability was not
caused by the allowed conditions.
{¶ 9} Roxbury filed a complaint seeking a writ of mandamus. The court
of appeals concluded that the commission did not abuse its discretion when it
failed to award temporary-total-disability compensation and denied the writ.
{¶ 10} Roxbury filed an appeal of right.
{¶ 11} To be entitled to temporary-total-disability compensation, a
claimant must establish a causal relationship between the industrial injury and any
loss of earnings. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St. 3d
25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35. But a claimant who is no longer part
of the workforce for reasons not related to the allowed conditions of the industrial
claim is not eligible for temporary-total-disability compensation. State ex rel.
Pierron v. Indus. Comm., 120 Ohio St. 3d 40, 2008-Ohio-5245, 896 N.E.2d 140,
¶ 9. This is a question of fact for the commission to determine. Id. at ¶ 10.
3
SUPREME COURT OF OHIO
{¶ 12} Roxbury maintains that she did not voluntarily abandon the
workforce but that she has been physically unable to return to work since 2004,
due to her industrial injury, and thus she is entitled to an award of temporary-
total-disability compensation.
{¶ 13} But the evidence before the commission demonstrated that
Roxbury was physically capable of performing sedentary work and that her
psychological condition was not disabling. In a 2006 order, the commission
determined that Roxbury’s physical injuries had reached MMI. Roxbury did not
pursue an appeal of that finding. And in 2009, the commission denied
compensation for permanent total disability, finding that Roxbury remained
physically capable of sedentary work and that the allowed psychological
condition of her industrial claim was not disabling. There was no evidence that
Roxbury sought other work or attempted vocational rehabilitation. Consequently,
the commission did not abuse its discretion when it concluded that Roxbury was
no longer a part of the labor market and that her lack of earnings was not the
result of her psychological condition.
{¶ 14} Roxbury also challenges the commission’s rejection of Dr.
Lichstein’s retroactive opinion of disability. Because she did not object to this
conclusion of law in the court below, 2012-Ohio-1310, ¶ 3, this argument is
waived. State ex rel. Wilson v. Indus. Comm., 100 Ohio St. 3d 23, 2003-Ohio-
4832, 795 N.E.2d 662, ¶ 4. However, even if waiver did not apply, this argument
lacks merit.
{¶ 15} Before a doctor issues a report that is not based on an examination
performed contemporaneously with the claimed period of disability, the doctor
must review all the relevant medical evidence generated prior to the examination.
State ex rel. Bowie v. Greater Cleveland Regional Transit Auth., 75 Ohio St. 3d
458, 460, 663 N.E.2d 926 (1996). If the doctor failed to do so, the doctor’s
opinion is not evidence upon which the commission may rely. Id. at 461.
4
January Term, 2014
{¶ 16} Here, Dr. Lichstein examined Roxbury in July 2009 but
retroactively certified her disability to 2007. Dr. Lichstein indicated in her report
that she had reviewed Roxbury’s treatment by others within her practice group,
but she failed to mention reviewing reports of other examining physicians. Thus,
it was within the commission’s discretion to conclude that Dr. Lichstein’s opinion
was not sufficient evidence to support Roxbury’s request for temporary-total-
disability compensation.
{¶ 17} Roxbury has failed to demonstrate that the commission abused its
discretion when it denied her request for temporary-total-disability compensation,
and the court of appeals properly denied mandamus relief. Therefore, we affirm
the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Nager, Romaine & Schneiberg Co., L.P.A., Jennifer L. Lawther, Jerald A.
Schneiberg, and Stacy M. Callen, for appellant.
Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney
General, for appellee Industrial Commission.
Andrews & Wyatt, L.L.C., Thomas R. Wyatt, and Jerry P. Cline, for
appellee Catholic Healthcare Partners, Inc.
________________________
5 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/8304549/ | PORTRUM, J.
The plaintiff below, C. B. Hail, filed this suit in the circuit court against Scott county and the Town of Oneida, to recover damages for the change in widening the grade of a designated state highway over and across his property in the town, causing him a loss of actual and incidental damages in the sum of $2,000, for which he sues. This highway was improved by widening and paving by the State Highway Department acting in conjunction with the federal government, having first required the authority of the county and town to first procure a designated right of way. Both the town and the county filed a demurrer to the petition or declaration, and these demurrers were sustained by the trial judge and the case appealed to the Supreme Court, and the court reversed the trial judge as to the Town of Oneida, but affirmed his decree as to the county. McDonald v. Scott County, 169 Tenn. 374, 87 S. W. (2d) 1019.
Upon a remand the case was heard before the trial judge without the intervention of a jury, one having originally been demanded but waived. The plaintiff in error raises the point that the case is tried in this court de novo under the recent act, while the defendant in error insists upon the rule that, if there be any evidence, then the case must be affirmed-for the reason that a jury was originally demanded, and the fact that the parties waived a jury did not destroy its status as a jury case. It is not necessary to pass upon this issue, for the court is of the opinion that the proof establishes by a preponderance of the evidence the liability of the town and the adequacy of the judgment recovered, namely, $500.
Formerly, the town had acquired a right of way sixty feet wide for this street, and at the time of the improvement there was a gravel or oil road upon the street which ran through a cut six feet high at *72one corner of tbe plaintiff’s property, tapering back throughout tbe distance of tbe lot. Tbe wall of tbis cut at the top did not coincide with the right of way line, there being two or more feet. After paving tbe grade is practically the same as before, tbe grade having been lowered for tbe purpose of constructing a base of concrete for tbe road with a paving of brick on top, and, while the grade was lowered a few inches, probably six, it was restored by the concrete and brick to practically the same grade, but the road was widened. And the widening of the road necessitated the widening of the right of way, making it necessary to condemn or take additional land from the plaintiff to properly construct the road.
Formal proceeding was not filed to acquire additional land, but the contractor was directed to make the line of the top of the cut upon the right of way line and to cut the wall perpendicular if necessary in order to stay upon the right of way; it was not necessary to cut the wall perpendicular, but it was cut at such a steep grade that erosion and gravitation will cause the plaintiff’s yard to cave in until the walls of this cut reach that degree of slant recognized as required to eliminate further sliding. The plaintiff’s house is only about eight feet from the right of way line, and this unguarded sliding will damage the remainder of his yard and render this side of his yard of little use. The construction of the wall of the cut in the angle it was constructed amounted to the taking of the real estate to the extent of the earth required to erode or wash away to bring the slope to the standard required. And this taking entailed incidental injury to the remainder of the plaintiff’s property. Obion County v. Edwards, 159 Tenn. 491, 19 S. W. (2d) 236; Acker v. Knoxville, 117 Tenn. 224, 96 S. W. 973; Code 1932, section 3404.
It is the plaintiff’s duty to curtail his damage, and if it can be curtailed the court will measure the plaintiff’s damages by the cost of the curtailment. The proof shows that a retaining wall can be constructed along the property line at a cost of $800 to $1,200; the description of this wall was given and the dimension was two feet wide at the top, and the trial court was doubtless of the opinion that it was not necessary to make such a substantial wall, for he fixed the plaintiff’s damages at $500 as the price of a retaining wall.
This court is of the opinion that this sum is not excessive, and is supported by the weight of the proof. But it is insisted that the plaintiff receives certain incidental benefits which should be offset and deducted from this recovery, the principal item being that he was relieved from any future cost due to an improvement of the highway under a rebutting property act, the landowner being required to pay one-third the cost of the improvement, and that this is a material and substantial benefit gained by the plaintiff and not common to all others within the town.
*73This presents a plausible argument, but when analyzed' we find tbat tbe plaintiff’s property if included in an improvement district and the road constructed as here constructed, that he would not receive like benefit or suffer like injury with all others within the improvement district. He would be entitled to recover from the improvement district his incidental damages, which cost would be distributed among all the property holders, so, to require the plaintiff to deduct this benefit against his incidental damages is equivalent to requiring him to pay an item peculiar to himself only, and one that his neighbors upon the same street are not required to pay. If every one in the improvement district, or contemplated district, suffered a like incidental injury, then there would be some justice in requiring the landowner to offset the benefits he derived in escaping an improvement district against the injuries he had sustained, but it is not just to require one property owner to take this loss when no other is in a like position and suffering a like loss.
Such other incidental benefits as the plaintiff receives, we think were deducted by the trial court in fixing his award, and, since it was below the lowest estimate of the contractor, this court thinks there should be no further reduction.
Upon the plea of the statute of limitations, the burden of proof is upon the parties asserting the statute; the statute of one year runs from the completion of the work as provided by the statute. Code section 3404. The plaintiff’s proof shows when the grading was done and that it required only three or four days to do the grading, but from this evidence the court cannot conclude that the work was completed within the next thirty or sixty days, in fact it would require much more time to pave and complete this road than the time required for grading. The plaintiff’s proof shows that the work was not completed one year prior to the institution of this suit. The time not having expired, the suit is not barred by the one-year statute. Code 1932, section 3404.
There is no error in the judgment of the lower court, and it is affirmed, with costs.
Ailor and McAmis, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1918972/ | 242 Md. 156 (1966)
218 A.2d 212
WILLEY, ETC. AND WILLEY
v.
GLASS
[No. 241, September Term, 1965.]
Court of Appeals of Maryland.
Decided April 1, 1966.
The cause was argued before PRESCOTT, C.J., and HAMMOND, MARBURY, BARNES and McWILLIAMS, JJ., and CARTER, J., Chief Judge of the Second Judicial Circuit, specially assigned.
Gerald N. Klauber for appellants.
James M. Gabler, with whom were Barbara Ann Spicer and Smith, Somerville & Case on the brief, for appellee.
MARBURY, J., delivered the opinion of the Court.
Suit was instituted in the Superior Court of Baltimore City by plaintiffs Sharon Willey, a minor, by Gordy Willey, her father and next friend, and Gordy Willey, individually, against Benny Calvin Glass to recover for personal injuries sustained when the minor child was struck by an automobile driven by defendant Glass. The case was tried before a jury, Judge Harlan presiding, and at the conclusion of all of the evidence the trial *159 judge directed a verdict in the defendant's favor on the ground that no primary negligence had been shown. The plaintiff unsuccessfully made a motion for a new trial in which he claimed that three errors were made by the trial judge. These same points are raised on this appeal, which was taken after judgment had been made absolute for the defendant.
At the trial the infant plaintiff testified that on April 2, 1962, she and some other youngsters were playing dodge ball in front of her home, located on the north side of Fountain Street in Baltimore City. The ball rolled across Fountain Street (thirty-six feet in width) and came to rest at the south curb between two parked vehicles, a car and a tractor trailer, and Sharon, then eight years of age, went to retrieve it. After picking up the ball and emerging from between the parked vehicles, she looked to her left to see if there was any eastbound traffic on Fountain Street but her view of traffic from that direction was blocked by another truck which was backed at a right angle to the south curb of Fountain, into the entrance of a junk yard, and the truck's cab extended to the middle of the street. She then looked to her right to see if there was any westbound traffic and seeing none, walked across the street to rejoin the game. According to her testimony she did not remember whether she looked again to see if there was any traffic coming from her left but she did remember that when she got to the middle of the street she was hit by the defendant's eastbound car which she did not see until after she was struck.
At the trial it was uncontroverted that the child had attempted to cross the street between intersections, that the weather conditions on the date of the accident were dry and clear, that the accident occurred at about 3:45 p.m., and that the defendant's car made no skid marks.
The plaintiffs called as a witness an officer of the Baltimore Police Accident Investigation Division, who testified that he arrived at the scene of the accident some twenty minutes after its occurrence. On cross-examination he was allowed to read, over objection of plaintiffs' attorney, a signed statement given to him by the defendant Benny Glass at the scene of the accident. The statement was as follows: "At 3:45 p.m., on April 2, 1962, I was operating my vehicle, a Ford, 1956, eastbound *160 on Fountain Street. When about one-half way through the block, a child ran out from between a car and trailer that was parked at the south curb. I put on my brakes but still struck the child with my car at the right front." Neither the plaintiff Gordy Willey nor his wife Betty Willey, saw the accident, but were called as witnesses since they arrived at the scene soon afterwards. Gordy Willey testified that when he arrived at the scene of the accident the defendant's car was about one car length away from the truck which was blocking the eastbound lane of traffic on Fountain Street, and that the defendant's car was at an angle, with the front end in the eastbound lane and the rear end extending into the westbound lane. Mrs. Willey testified that the defendant's car was about two car lengths away from the blocking truck. The plaintiffs also called the defendant as their witness and he admitted that he knew that children played on the street in that area. He testified that he had to go into the westbound lane of Fountain Street to get around the truck backed into the entrance of the junk yard. On cross-examination he stated that he had maneuvered around that truck at a speed of five to ten miles an hour and that he was directed by the arm motions of an unidentified man who stood by the blocking truck. When cross-examination of the defendant was concluded the following colloquy took place between the trial judge and the plaintiffs' lawyer: "Mr. Klauber: That's all I have, except for the hospital report, your Honor. The Court: All right." At this juncture, after the jury was admonished by the court, the court adjourned, to resume at 10:00 a.m. the following morning.
The following took place in chambers, before the court resumed its session the next day:
"Mr. Klauber: The Plaintiffs in the case have proffered the testimony of a witness, Hazel Fletcher, which the Plaintiffs would like to call as their witness in the case of Willey versus Glass. The witness was not available yesterday, and there was no information as to whether she would be available today. She is now available, in Court, and the Court has refused to allow the Plaintiffs' attorney to call this witness in the Plaintiffs' case, on the theory that the Plaintiffs had closed their case yesterday.
*161 "The Plaintiffs' attorney submits that the case was not closed; that further testimony was to be offered in the Plaintiffs' case, that of hospital records; and the Plaintiffs' attorney made no statement to the Court that they had rested their case. The only statement made to the Court was that that's all they had.
"The Court: Well, I assume that you are moving to reopen the case, to put on a witness?
"Mr. Klauber: Right.
"The Court: Let the record show that the Plaintiffs' counsel, at the conclusion of the testimony yesterday advised the Court that that was all he had, that that was the Plaintiffs' case, with the exception of the hospital record; that the Plaintiffs' counsel did not advise the Court of any other witness, nor does the record show that any witness was subpoenaed, until this morning; that after the Plaintiffs closed their case on the question of liability, there was a conference in chambers, whereupon each side argued the case as to the liability.[1]
"The Court, therefore, denies the motion to reopen the case." When the trial resumed the defendant then put on his case, which consisted only of his testimony in his own behalf. In his testimony he repeated what was contained in the written statement taken by the police officer and reiterated his testimony which he had given during the plaintiffs' case in chief. Additionally he testified that his brakes were in good condition, that the child was only three or four feet in front of him when he applied his brakes and that he stopped as soon as they were applied, and that he was in the eastbound lane of traffic going from ten to fifteen miles per hour when he first saw the girl "dart out."
After the defendant had testified, plaintiffs' counsel sought to call Hazel Fletcher as a rebuttal witness. The trial judge refused to allow her to testify and in his written opinion, filed *162 when he denied the motion for a new trial, he explained his action as follows:
"In chambers previously, counsel for the plaintiff proffered the testimony of the witness. Although he did not make a proffer on the record, the proffer was to the effect that she could testify that the defendant started up quickly from a standing position some distance to the west and failed to reduce his speed, and that the plaintiff was struck while in the middle of the street.
"The Court felt then and feels now that such testimony informally proffered would not be of any benefit to the infant plaintiff, as it would only corroborate the defendant's testimony other than the question of speed, in that the plaintiff came out from between parked cars. The Court felt then and feels now that there was no evidence of primary negligence on the part of the defendant * * * which warranted the Court in the action it took by directing a verdict for the defendant."
In this Court the appellants first contend that it was reversible error for the trial judge to allow the policeman to read the written statement taken from the defendant at the accident scene some twenty minutes after the child was struck. Appellants contend that the admission of the statement violates the hearsay evidence rule and was not within the res gestae, or any other, exception to that rule. Even assuming that this statement was not admissible for the purpose of proving the truth of the matter contained therein and that it does not fall within any of the exceptions to the hearsay evidence rule, its admission into evidence did not amount to reversible error because as we point out later there was offered no legally sufficient proof of primary negligence.
The appellants' counsel secondly strenuously urges that the trial judge erred in refusing to allow him to put on Hazel Fletcher as a witness in order to prove the existence of primary negligence. While he claims that he did not close his case in regard to the proof of liability at the end of the first day of trial, it seems clear to us from the statement made by plaintiffs' *163 counsel at that stage of the proceedings, plus the fact that the issue of primary negligence had been argued in chambers before plaintiffs' counsel sought to put Hazel Fletcher on as a witness, that the trial judge was correct in deciding that plaintiffs' counsel had actually closed his case as to the proof of liability. Whether a case shall be reopened for the taking of additional testimony rests within the sound discretion of the trial judge; and from his grant or refusal to grant the request to reopen, ordinarily no appeal will lie. Schroder v. State, 206 Md. 261, 265, 111 A.2d 587; Brown v. Bendix Aviation Corp., 187 Md. 613, 620, 51 A.2d 292; Niemoth v. State, 160 Md. 544, 554, 154 A. 66; Hensel v. Smith, 152 Md. 380, 391, 136 A. 900; East Balto. Transfer Co. v. Goeb, 140 Md. 534, 537, 118 A. 74; Weinstein v. Boyd, 136 Md. 227, 234, 110 A. 506. See also, 2 Poe, Pleading and Practice, Section 288A (5th ed. 1925) and cases cited therein.
Assuming, arguendo, that the plaintiffs had not closed their case and the trial judge was without discretion as to whether to allow Hazel Fletcher to testify, there is nothing in the record before us to show that the plaintiffs were prejudiced by the trial judge's ruling. No formal proffer was made of what she would have testified to if she had been allowed to take the stand and the only hint we have as to what that testimony would have been is contained in Judge Harlan's written opinion in which he gave his reasons for over-ruling the motion for new trial. In that opinion the trial judge refers to the contents of an informal proffer which does not show that the appellants were prejudiced by the disallowance of prospective witness Fletcher's testimony. The only facts contained in the informal proffer, not developed theretofore in the trial, were that "the defendant started up quickly from a standing position some distance to the west and failed to reduce his speed, * * *." (Emphasis added.) That the defendant "started up quickly" and thereafter failed to reduce his speed, without more, does not constitute sufficient evidence of primary negligence, because these assertions amount to mere adjectival generalizations about an event from which no sufficient probative inference of negligence could be drawn. Miller v. Robinson, 241 Md. 335, 338, 216 A.2d 743, 745, and cases therein cited; Maryland Chemical *164 Company, Inc. v. Monn, 241 Md. 127, 215 A.2d 731; Fowler v. Smith, 240 Md. 240, 246, 213 A.2d 549; Jones v. Baltimore Transit Co., 211 Md. 423, 428-29, 127 A.2d 649; Balto. Transit Co. v. Sun Cab Co., 210 Md. 555, 560, 124 A.2d 567; Kaufman v. Baltimore Transit Co., 197 Md. 141, 146, 78 A.2d 464.
Appellants' third contention, closely related to their second, is that they should have been allowed to call Hazel Fletcher as a rebuttal witness. Here again, no formal proffer was made, as required of counsel, as to what the excluded rebuttal testimony would have been but it seems apparent it would have been that referred to by Judge Harlan. In any event, as the term "rebuttal witness" suggests, the only questions which such a witness can properly answer are those which tend to impeach or negative the prior evidence or the testimony of a previous witness. The plaintiff could not properly have proved his case in chief, i.e., existence of primary negligence by the testimony of this witness (unless the court had allowed her to testify as a witness in chief and her testimony was sufficient to do so). Here no legally sufficient evidence of primary negligence had been shown in the presentation of either the plaintiffs' or the defendant's case, and thus no useful purpose would have been served by allowing the witness to rebut preceding evidence or testimony. While normally the trial judge may not refuse the calling of a rebuttal witness, he has discretion to ascertain whether individual questions will truly tend to rebut, and in this case the trial judge could properly exclude this witness' entire rebuttal testimony because he would have been legally required to direct a verdict for the defendant at the conclusion of her testimony had she been allowed to testify.
Finding no reversible error, the judgment will be affirmed.
Judgment affirmed, appellants to pay the costs.
NOTES
[1] The record does not disclose that defendant's counsel had made a motion for a directed verdict at the close of the plaintiffs' case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918974/ | 421 Pa. 396 (1966)
Commonwealth ex rel. Cummins, Appellant,
v.
Price.
Supreme Court of Pennsylvania.
Argued October 7, 1965.
April 19, 1966.
*397 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Silvestri Silvestri, with him Edward P. Zemprelli, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.
*398 OPINION BY MR. CHIEF JUSTICE BELL, April 19, 1966:
Defendant[*] was indicted for the murder of Nancy Flowers on December 21, 1963. He appeals from an Order of the Court below dismissing his pretrial petition for a writ of habeas corpus.
Defendant's petition for the writ, which was filed November 12, 1964, averred (1) that he suffered permanent injury at the time of the alleged murder; and (2) that, as a result of this injury, he "has suffered a permanent loss of memory of [the facts, circumstances and all] the events prior to, at the time of and subsequent to the circumstances surrounding his arrest"; and (3) that his constitutional rights would be violated if he were brought to trial when unable ". . . to testify in his own behalf and otherwise intelligently aid his counsel in preparing and presenting a rational defense." He therefore asked (a) for absolute and complete discharge from custody and (b) that the murder indictment and any other criminal charges against him be dismissed, or alternatively (c) that the trial on the murder indictment be continued until he has regained his memory, and (d) that he be admitted to bail.
Summary of Testimony
We shall summarize the testimony presented at the habeas corpus hearing. Defendant was observed in the early morning of December 21, 1963, by two police officers. Their attention was attracted to him because he was driving on the wrong side of the road. They were on a special mission at the time and did not stop. While returning from this mission, they saw defendant's car parked on the berm of the road. When they pulled their car alongside defendant's car, they noticed two *399 persons sitting upright in the front seat of defendant's auto. Both of defendant's eyes were bulging out of his head and he was holding his handkerchief up to the right side of his face. The officers asked him if he was in need of medical assistance; he replied that he was all right, started his engine and drove off. The officers radioed the license number in order to identify the owner. When this information was received, they also discovered that police officer Frank Cummins was defendant's brother. Officer Cummins was picked up and the three officers proceeded to the Briggs house, where Nancy Flowers lived and worked for Briggs as a cook and housekeeper.
Defendant's car was found parked in Briggs' driveway; Nancy Flowers was lying on her side on the front seat. Defendant was leaning against the Briggs house, about 100 feet away from the car. Both were taken to the hospital, where Nancy Flowers died of a gunshot wound on the left side of her head.[*] Defendant had a gunshot wound on the right side of his head.
Officer Cummins found a revolver on the front seat under the body of Nancy Flowers. The bullets taken from the heads of defendant and Nancy were test-fired from the revolver by the County Crime Laboratory and were found to be of the same general class characteristics, but the laboratory was unable to make a more positive identification.
Defendant has consistently denied any knowledge or memory of the events of December 20th or 21st. However, there was no evidence and there is no contention by defendant that prior to Nancy's death, or at the time of her death, or at any time subsequent thereto, he was insane. On the contrary, he and all his witnesses assert that he was sane and competent before *400 Nancy's death, and is now completely sane and completely competent.
All the evidence of the crime was circumstantial but was sufficient to establish a prima facie case of murder in the first degree: cf. Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85; Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911; Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157; Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861. The lower Court found (1) that according to the weight of medical testimony at the time of the hearing (on the petition for habeas corpus), defendant was not feigning a loss of memory concerning the events and actions which took place on December 20th and 21st, 1963; (2) that only two of the five medical experts (three psychiatrists, a neurologist and a psychologist) expressed the opinion that defendant's loss of memory would be permanent. The lower Court then held that under all the aforesaid facts defendant must stand trial because (a) he is admittedly sane and does not need or even seek hospital care, and (b) no legal authority or justification exists for postponing the trial or releasing a person charged with a crime who is sane but has no memory concerning the alleged criminal act, and (c) amnesia or circumscribed loss of memory is in the nature of an affirmative defense, comparable to that of insanity. For these reasons, the lower Court dismissed defendant's petition. Although we do not agree with all of these reasons, the Order of the lower Court must be affirmed.
Basically what defendant is seeking is absolute and permanent release from any trial for any event which occurred on December 20th or 21st because he cannot remember anything that occurred on those days, or in the alternative that his trial be continued until he recovers his memory of the events which took place on those dates, even though he claims that his lack of memory thereof is and will be permanent.
*401 For over 100 years, lack of memory in murder cases has been a common and frequent defense. Although the expressions differ, they all amount to the same thing. Cases abound with commonly used statements or testimony by a person accused of or convicted of murder that "I don't remember anything"; "my mind went blank"; "I blacked out"; "I panicked and don't remember what I did or anything that happened." While the terminology of defendant's state of mind and alleged lack of memory is different in this case from the expressions often used by persons accused of crime to prove their lack of memory, it has never hitherto been sustained by any Court, although similar language to prove lack of memory has, as above noted, been used for more than a century.
In Commonwealth v. Morrison, 266 Pa. 223, 109 A. 878, the Court said (pages 229, 230): ". . . The general presumption is that every man is normal and is possessed of ordinary faculties; such defenses as intoxication, insanity and aphasia[*] (or a mind not conscious of its acts), are affirmative defenses and the burden is on the defendant to establish them: Commonwealth v. Dale, 264 Pa. 362.
". . . The defendant hoped to exculpate himself by the statement that he was a drug fiend and had no recollection of what happened from the time he entered the jewelry store until some time after the crime was committed, that he was suffering from aphasia, superinduced by the narcotic." The Court rejected this defense and affirmed the conviction of murder of the first degree.
In Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823, the Court pertinently said (pages 68-69): "Intention to kill may be shown by the defendant's acts or *402 words or by all the circumstances of the case; it may be inferred from the intentional use of a deadly weapon upon a vital part: Commonwealth v. Green, 294 Pa. 573, 584; Commonwealth v. Troup, 302 Pa. 246, 253. But, no case has gone to the extent of holding that the Commonwealth, in addition to proving circumstances indicating such intent beyond a reasonable doubt, must also show the mental capacity of defendant to formulate the intention manifested by his words or actions.
"In criminal, as in other matters, sanity is presumed. The defense of insanity is an affirmative one and must be established by the defendant by `fairly preponderating evidence,' showing an unsound mind at the time the act was done. The presumption of sanity, which is the normal condition of man, `holds good, and is the full equivalent of express proof until it is successfully rebutted': Commonwealth v. Gerade, 145 Pa. 289, 297; see Commonwealth v. Kilpatrick, 204 Pa. 218; Commonwealth v. Calhoun, 238 Pa. 474; Commonwealth v. Sushinskie, 242 Pa. 406; Commonwealth v. Molten, 230 Pa. 399; Commonwealth v. Scovern, 292 Pa. 26, 34. Similarly, when the defense is intoxication, the burden is on the defendant to establish that his intoxication was such as to prevent forming any intent. `The mere intoxication of the defendant will not excuse or palliate his offense unless he was in such a state of intoxication as to be incapable of conceiving any intent. If he was, his grade of offense is reduced to murder in the second degree': Commonwealth v. Cleary, 135 Pa. 64; Commonwealth v. Detweiler, 229 Pa. 304, 308. The burden to establish the fact of intoxication is by `fairly preponderating evidence': Commonwealth v. Walker, 283 Pa. 468, 475; Commonwealth v. Troy, 274 Pa. 265, 271; Commonwealth v. Prescott, 284 Pa. 255, 257-8. The same rule applies where the influence of drugs is relied upon to negative intention: Commonwealth v. Morrison, 266 Pa. 223.
*403 "Where mental capacity at the time of the act is an issue, the Commonwealth is aided by the presumption of sanity, it is not required to prove affirmatively mental capacity to commit the act. As stated in Commonwealth v. Morrison, supra (page 229), `The general presumption is that every man is normal and is possessed of ordinary faculties; such defenses as intoxication, insanity and aphasia (or a mind not conscious of its acts), are affirmative defenses and the burden is on the defendant to establish them. . . .'" See to the same effect, Commonwealth v. Farrow, 382 Pa. 61, 66, 114 A.2d 170.
When carefully analyzed, amnesia actually is no defense at all and the statement in four prior decisions of this Court[*] that it is an affirmative defense is too broad and is hereby disavowed.
Amnesia does not absolve or exculpate the defendant from any of his criminal acts or from total criminal responsibility. Cummins' circumscribed amnesia, if it exists, occurred after the crime, and therefore had no effect on his motives or conduct or behavior or criminal acts at the time of the killing. Cummins' amnesia is not admissible to prove innocence or guilt. However, it is a circumstance which the Judge or the jury may consider in determining the penalty, if they believe it to exist.
The Common Law Test for Standing Trial
Defendant-relator contends that he cannot be tried because he has permanent amnesia as to everything that happened on December 20th and 21st, although he is now and at all other times was sane, sound and competent.
*404 The tests for ability to stand trial are twofold: (1) the so-called common law test, and (2) the tests set forth in the Mental Health Act of 1951, June 12, P.L. 533, § 101, 50 P.S. § 1071.
It is a well established rule that one who is charged with a crime and who, before or during trial, is found to be insane, or mentally ill and mentally incapable of standing trial, may not be tried (or after conviction may not be sentenced or executed) while thus incapacitated. Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 207 A.2d 794; Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102; Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96; Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611; 4 Blackstone, Commentaries, section 24.
In Commonwealth v. Novak, 395 Pa., supra, the Court said (page 205): "`. . ., the test at common law and employed by the courts in determining the mental capacity of a defendant to stand trial or to be sentenced or executed is not the M'Naghten "right or wrong" test but whether the defendant is able to comprehend his position and make a rational defense.': Commonwealth v. Moon, 383 Pa. 18, 23, 117 A.2d 96."
In other words, the accused must either be insane or so mentally ill as to be unable (a) to comprehend that he is accused of the terrible crime of murder and (b) to cooperate with his counsel in making a rational defense. Commonwealth ex rel. Hilberry v. Maroney, 417 Pa., supra.
The facts in this case do not bring it within the foregoing authorities, or the principles enunciated therein.
The Mental Health Act
Section 342[*] of this Act provides: "Whenever any person charged with crime, upon production or appearance *405 before the court, appears to be mentally ill[*] or in need of care in a mental hospital, the court shall designate a responsible person to apply for his commitment, or for his commitment for observation, treatment and diagnosis, by order of such court. . . ."
"Mental illness" is defined in § 102(11) as: ". . . an illness which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable to be under care."
In Commonwealth v. Moon, 383 Pa., supra, this Court stated that the definition of the term "mental illness" as hereinabove quoted is, under the circumstances set forth in the Act, broader than the term "legal insanity."
Defendant is not within the terms of the Mental Health Act for two reasons: (1) he admittedly is not "mentally ill" or "in need of care in a mental hospital" and (2) he has not elected, nor has the Court or anyone in his behalf elected, nor has the Court appointed a person or a commission to proceed in accordance with the Mental Health Act to invoke the relief provided for in and by that Act, viz., commitment to a mental hospital. Instead, defendant has chosen to proceed by way of habeas corpus before trial, invoking, not the aforesaid Mental Health relief, but the Common Law test, which he attempts to broaden by incorporating in and adding thereto the definitions of mental illness set forth in the Mental Health Act.
We are of the opinion that the common law test and the provisions of the Mental Health Act are complementary and the Act applies (a) only where mental illness as defined in the Mental Health Act exists, and (b) where the alleged criminal is in need of hospitalization and commitment thereunder. In other *406 words, the common law test is, in situations such as the present, broader than the tests contained in the Mental Health Act, in that it is possible there may be reasons for a stay of proceedings, other than that of statutory mental illness.
Nevertheless, we are constrained to hold that defendant is not entitled at this time (1) to a discharge from the indictment for murder, or (2) to a stay of proceedings under the aforesaid common law test or under the Mental Health Act. This defendant (we repeat) is able to comprehend his position as one accused of murder, is fully capable of understanding the gravity of the criminal proceedings against him, and is as able to cooperate with his counsel in making a rational defense as is any defendant who alleges that at the time of the crime he was insane or very intoxicated or completely drugged, or a defendant whose mind allegedly went blank or who blacked out or who panicked and contends or testifies that he does not remember anything.
We further note that defendant contends on the one hand that his amnesia is permanent (although the lower Court wisely refused to find this as a fact); and on the other hand, that criminal proceedings be stayed until such time as he recovers his memory. If in fact the condition of amnesia is permanent, defendant's contention (1) would require Courts to hold that such amnesia will permanently, completely and absolutely negate all criminal responsibility and (2) will turn over the determination of crime and criminal liability to psychiatrists, whose opinions are usually based in large part upon defendant's self-serving statements, instead of to Courts and juries, and (3) will greatly jeopardize the safety and security of law-abiding citizens and render the protection of Society from crime and criminals far more difficult than ever before in modern history.
*407 Unless an accused is legally insane, the law is not and should not be so unrealistic and foolish as to permanently free, without acquittal by a Judge or a jury, a person against whom a prima facie case of murder is made out.
Today it is too often forgotten (1) that the law was established and exists principally for the protection and safety of Society, and (2) that in order to accomplish this principal objective,[*] men and women who commit crimes or who are a menace to Society have to be confined in prison or in a mental hospital. This not only provides sorely needed protection for law-abiding citizens while the imprisonment or the confinement lasts, but imprisonment also acts as a deterrent to prospective criminals.
We further note that Cummins is not entitled to bail. Pennsylvania Constitution, Art. I, § 14; Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97. However, the grant or denial of bail is an appealable order.
Order affirmed.
Mr. Justice JONES concurs in the result.
Mr. Justice ROBERTS concurs in the result on the ground that petitioner has set forth no facts and made no allegations entitling him to relief at this stage of the proceedings by writ of habeas corpus.
Mr. Justice MUSMANNO dissents.
DISSENTING OPINION BY MR. JUSTICE COHEN:
This appeal is from an order of the court dismissing a pretrial petition for a writ of habeas corpus. Since the appellant-defendant does not question the lower court's determination that a prima facie case of *408 murder against defendant has been made out by the evidence, I would do nothing more than quash this appeal, thereby requiring the defendant to stand trial.
To allow appeals in situations such as this, places upon the courts an unsurmountable burden and provides defendants with a facility for delay.
I feel compelled to go further and voice my complete disagreement with what the majority has to say. The majority thoroughly fails to recognize that the constitutional right to counsel would be a sham if defense counsel were not able to prepare a proper defense. It is possible that this crime was not committed exactly as the circumstantial evidence proves. While a prima facie case of murder in the first degree has been established by the evidence presented to the lower court, the majority's determination completely prevents the presentation of any defense which would dispel the conclusions arrived at from the circumstances.
The lower court found that defendant was not feigning a loss of memory, but it could not determine whether the loss of memory would or would not be permanent. This substantially established the right of the accused to at least secure reasonable continuances. This entire problem was evaluated in an exhaustive law review note entitled, "Amnesia: A Case Study in the Limits of Particular Justice", 71 Yale L.J. 109 (1961). A superficial reading of this article will disclose that more consideration is due this situation than that given by the majority. However, as I have observed, this appeal is interlocutory and should be quashed. Not to do so will require two trials when there is an allegation of a loss of memory. Even the majority's zeal to prevent "coddling of criminals" should not serve as a vehicle to circumvent our recent unanimous opinion in Commonwealth ex rel. Fisher v. Stitzel, 418 Pa. 356, 211 A.2d 457 (1965).
I dissent.
NOTES
[*] Raymond Cummins, who is relator herein.
[*] Defendant had written Nancy a love letter complaining of her affections for two other men and threatening suicide.
[*] Incorrectly termed and later corrected by this Court to mean "amnesia". Commonwealth v. Myma, 278 Pa. 505, 123 A. 486.
[*] Com. v. Morrison, 266 Pa. 223, 109 A. 878; Com. v. Myma, 278 Pa. 505, 123 A. 486; Com. v. Iacobino, 319 Pa. 65, 69, 178 A. 823.
[*] Cf. also § 343(c) which provides for the commitment of a convicted criminal in lieu of sentence.
[*] Italics throughout, ours.
[*] Rehabilitation of a criminal is, of course, important and very desirable, but the protection and safety of Society is the principal objective of the criminal law and is paramount! | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3755047/ | JOURNAL ENTRY AND OPINION
{¶ 1} In this appeal, plaintiff-appellant, the State of Ohio, appeals from the order of the Cuyahoga County Court of Common Pleas that sealed the conviction records of defendant-appellee, Shelby Poston, under R.C. 2953.32. The State argues that the trial court erred in granting the motion to seal records without holding a hearing, and that Poston was not eligible for expungement because he was not a first offender. For the following reasons, we reverse and remand.
{¶ 2} A review of the record reveals the following: On April 22, 2005, Poston filed, pro se, an application to seal the records of his 1993 drug abuse and possession of criminal tools convictions. The trial court referred the case to the probation department for investigation, and on August 19, 2005, the State filed a brief in opposition to the application. On September 28, 2005, the trial court granted the application. It is from this order that the State now appeals and raises two assignments of error.
{¶ 3} "I. A trial court errs in ruling on a motion for expungement filed pursuant to R.C. 2953.32 without first holding a hearing."
{¶ 4} In its first assignment of error, the State claims that the trial court erred by granting the application without first holding a hearing.
{¶ 5} R.C. 2953.32(B) provides in part: "Upon the filing of an application under this section, the court shall set a date for hearing and shall notify the prosecutor for the case of the hearing on the application." This language requires the trial court to hold a hearing before granting an application to seal records under 2953.32. Accordingly, the trial court erred in granting the application without first holding a hearing. SeeState v. Powers, Cuyahoga App. No. 84416, 2004-Ohio-7021;State v. Dean, Cuyahoga App. No. 80396, 2002-Ohio-4088; Statev. Saltzer (1984), 14 Ohio App. 3d 394.
{¶ 6} The first assignment of error is sustained.
{¶ 7} "II. A trial court erred in granting a motion to seal the record of conviction when it is without jurisdiction to grant said motion to an applicant who is not a first offender due to his conviction for disorderly conduct with a count of resisting arrest."
{¶ 8} Our resolution of the State's first assignment of error renders the second assignment of error moot. See App.R. 12(A)(1)(c).
Judgment reversed and remanded.
It is ordered that appellant recover of appellee its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Dyke, A.J., and Calabrese, Jr., J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1587273/ | 120 S.W.3d 288 (2003)
Donald VAHEY, Alberta Vahey, Daniel Vahey, Tim Vahey, and Elizabeth Koterba, Respondents,
v.
Lorreta VAHEY, Ronald Vahey, Karen Moen, Michael Vahey, George Vahey, Jr., and Mark Vahey, Appellants.
No. ED 82111.
Missouri Court of Appeals, Eastern District, Northern Division.
November 12, 2003.
*289 Edward H. Grewach, Troy, MO, for appellant.
Thomas B. Burkemper, Troy, MO, for respondent.
WILLIAM H. CRANDALL, JR., Judge.
Defendant, Mark Vahey, appeals from the judgment, entered in a court-tried case, in favor of plaintiffs, Donald Vahey, et al., in an action for replevin or alternatively for money damages for property taken by him. The court found that Mark Vahey converted the property and awarded damages to the four named plaintiffs. We vacate and remand.
George Vahey died in January 2001. At the time of his death, George was living in the family home in Hawk Point, Missouri, where his mother, Alberta Vahey (hereinafter "mother"), had lived until her death *290 in 1987. After George's death, his son, Mark Vahey, removed items of personal property from the family home because he thought they belonged to his father. Property missing from the family home included two china cabinets, two chifforobes, guns, a dagger, a pot-bellied stove, jewelry, a furnace, air conditioners, music boxes, pictures and frames, a box of silver coins, photographs, and two flags. Certain of George's siblings thought that the property had belonged to their mother and was distributed by her estate to them. At their request, Mark returned some of the property, but denied knowledge of the whereabouts of the rest of the property. He also returned some of the property in damaged condition.
At all times pertinent to this litigation, the following family members were entitled to the mother's personal property as legatees of her estate, each party owning a one-seventh interest in the property: Daniel Vahey; Tim Vahey; Elizabeth Korteba; Daniel Edward Vahey, as distributee of the estate of Alberta Vahey; Donald Vahey; the surviving spouse of Mary Topp; and the estate of George Vahey, by and through his personal representative James Beck. There were, however, only four plaintiffs in the present action; namely, Daniel Vahey, Tim Vahey, Elizabeth Korteba, and Daniel Edward Vahey.[1] The four plaintiffs brought the present action for replevin, seeking the return of the property or, alternatively, damages equal to the value of the property taken. They named as defendants Mark and his five siblings, Loretta Vahey, Ronald Vahey, Karen Moen, Michael Vahey, and George Vahey, Jr.
After a court-tried case, the trial court entered judgment in favor of the four named plaintiffs. It found that the property either could no longer be located or was damaged to the extent that it had no value. It determined that the total value of the converted property was $28,000.00. It entered judgment against Mark in the amount of $4,000.00 each in favor of the four plaintiffs. It dismissed the cause of action as to the other named defendants. Mark appeals from that judgment.
In his first three points, Mark claims that the trial court erred in proceeding with the case without the necessary parties; namely, the personal representative of the estate of George Vahey, the spouse of Marion Topp, and Donald Vahey. He argues that these parties held a one-seventh interest in the property that was the subject of this litigation and were necessary parties to any action involving the property. We consider these points together.
Rule 52.04(a)(2)(i) requires the joinder of a person who claims an interest in the subject matter of the action when disposition of the action in the person's absence might impair or impede the ability to protect that person's interest. Williams Pipeline Co. v. Allison & Alexander, Inc., 80 S.W.3d 829, 837 (Mo.App. W.D.2002). A necessary person is one who is so vitally interested in the subject matter that a valid judgment cannot be rendered effectively without his or her presence. Id. An interest exists when there is a direct claim upon the subject matter of the action that the person will *291 either gain or lose by direct operation of the law. Id. An action may proceed without a necessary party if joinder is unfeasible, but not absent joinder of an indispensable party. Id. The question of whether there has been a failure to join a necessary and indispensable party under Rule 52.04 is jurisdictional. Id. We review the trial court's denial of relief under this rule under the standards enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
An action in replevin is designed to get the property of one person from another. Section 533.010 RSMo 2000. One who is not the sole owner of personal property cannot sue in replevin to recover possession. McCabe v. Black River Transp. Co., 131 Mo.App. 531, 110 S.W. 606 (1908). To invoke this remedy, the owner must have the right to immediate and exclusive possession. Steckman v. Gault State Bank, 126 Mo.App. 664, 105 S.W. 674 (1907). Where several parties have an ownership interest in the property, all of the owners must be joined in the suit. McCabe, 110 S.W. at 606.
Here, each of the seven owners had an interest in the personal property because each had a direct claim upon the property with the result that each would either gain or lose in the present action. Yet, none of the owners had the exclusive right to possess the property. Each of the owners had a one-seventh interest in the property, and the property was not capable of division. The numerous pieces of property were not of the same kind or value and could not be divided by measuring or counting. But see Brumley v. McCormack, 17 S.W.2d 597, 599 (Mo.App. 1929) (replevin will lie for one plaintiff-owner where wood made of slabs from logs was of the same kind and value and all plaintiff had to do was to separate out his one-fourth by measuring his portion). In addition, each owner had an interest in the total value of the property when the court determined the amount of damages to award for the converted property. In the instant action, the court's award of $4,000.00 to each of the four plaintiffs was an award of four-sevenths of the total amount of damages and did not afford complete relief to all of the owners. The trial court erred in proceeding with the action without the joinder of the remaining three owners.[2]
Plaintiffs rely on the decision in Poetz v. Klamberg, 781 S.W.2d 253, 255-256 (Mo. App.1989) to support their position that tenants in common, in contrast to joint tenants, need not join all other co-tenants in an action in order to state a claim. In Poetz, this court stated, "[T]here exists no jurisdictional impediment to a single tenant in common bringing an action to protect his interest in the property or to recover damages for loss sustained to that interest." Id. at 256. But, the Poetz case is distinguishable on its facts. Poetz involved the co-owner of an automobile suing the driver of another vehicle for damages sustained to his automobile in an accident. Id. at 254. It did not involve a replevin action. Further, this court acknowledged in Poetz that the joinder of co-tenants would be required in certain circumstances as for instance "where complete relief cannot be afforded without the presence of all co-tenants." Id. at 256. Mark's claims of error relating to joinder are granted.
Mark raises other points in his appeal. We discuss only that claim of error that might arise on retrial.
*292 In his fifth point, Mark asserts that the trial court erred in refusing to dismiss the action because it violated the five-year statute of limitations for actions in replevin or because the plaintiffs were estopped to bring the action by the doctrine of laches.
Section 516.120(4) RSMo (2000) provides, "An action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property...." shall be brought within five years. Here, the removal of the items of personal property from the family home was the act that gave rise to plaintiffs' cause of action. This act occurred shortly after George's death in January 2001. Plaintiffs brought the present action in June 2001. Plaintiffs' cause of action did not begin to run until the property was taken. Thus, their action was brought within the five-year statute of limitations.
Mark's argument that the action was barred by the doctrine of laches is also without merit. Generally, the doctrine of laches will not bar a suit before expiration of the period set forth in the applicable statute of limitations in the absence of special facts demanding extraordinary relief. State ex rel. General Elec. Co. v. Gaertner, 666 S.W.2d 764, 767 (Mo. banc 1984). In the instant action, no special circumstances existed. Plaintiffs did not delay in bringing their cause of action once they became aware that the property either was taken from the family home or was returned in damaged condition. Mark's fifth point is denied.
The judgment of the trial court is vacated and the cause is remanded to proceed in a manner consistent with this opinion.
SHERRI B. SULLIVAN, Chief Judge and GLENN A. NORTON, Judge, concur.
NOTES
[1] Another brother, Donald Vahey, was a named plaintiff in the present action; but, upon his request, the trial court removed him as a plaintiff, did not enter judgment in his favor, and he is not a party to this appeal. Daniel Edward Vahey was substituted as a party pursuant to an order by the probate court when Alberta Vahey died in September 2001. The personal representative of George Vahey had knowledge of the action and voluntarily chose not to participate.
[2] Rule 52.04(a) provides for joinder in the following ways: "If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1015682/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1542
UNIVERSAL MARITIME SERVICES; SIGNAL MUTUAL
INDEMNITY ASSOCIATION,
Petitioners,
versus
WILLIE L. PERRY; CERES MARINE TERMINALS;
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(03-468-A)
Argued: February 2, 2005 Decided: March 18, 2005
Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Richard John Barrett, VANDEVENTER BLACK, L.L.P., Norfolk, Virginia,
for Petitioners. Lawrence Philip Postol, SEYFARTH SHAW,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Universal Maritime Services (“Universal”) appeals the
decision of the Benefits Review Board of the Department of Labor
(“BRB”) awarding Willie Perry compensation for his hearing loss
under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),
33 U.S.C. §§ 901-950. Perry v. Universal Maritime Servs., No. 03-
0468 (BRB Apr. 6, 2004) (unpublished) (the “BRB Opinion”). The BRB
Opinion affirmed the earlier Decision and Order of the
Administrative Law Judge (“ALJ”), see Perry v. Ceres Marine
Terminals, No. 2001-LHC-1909 (Dep’t Labor Mar. 17, 2003) (the “ALJ
Decision and Order”), concluding that Perry’s third audiogram was
determinative and that Universal was the employer responsible for
Perry’s hearing loss benefits. As explained below, the ALJ’s
finding that Perry’s third audiogram was determinative is supported
by substantial evidence, and we thus affirm the decision of the
BRB.
I.
Perry has been a member of the International
Longshoreman’s Association since 1966. From approximately 1985
through October 30, 2000, Perry worked primarily for a work gang
assigned to Ceres Marine Terminals (“Ceres”). However, when Ceres
did not have available work, he worked temporarily for other
2
employers. On October 30, 2000, Universal became Perry’s primary
employer.1
On October 26, 2000, while still employed by Ceres, Perry
underwent a baseline audiogram conducted by Taylor Made Diagnostics
(the “Taylor Made audiogram”). Universal arranged for the Taylor
Made audiogram specifically to determine the degree of Perry’s pre-
employment hearing loss. This audiogram was conducted prior to
Perry’s workday in a mobile van equipped with four audiometric
testing stations and a soundproof steel door. Perry had finished
his workday four to five and one-half hours prior to the test, and
he testified that he had been exposed to loud noise while working.
The test administrator (who was neither an audiologist nor an
otolaryngologist) did not conduct other reliability tests for
hearing loss, such as bone-conduction or speech reception. The
Taylor Made audiogram indicated that Perry was suffering an 8%
binaural hearing loss.
On December 26, 2000, while employed by Universal, Perry
underwent audiometric testing conducted by Dr. John Jacobson (the
“Jacobson audiogram”). This audiogram was conducted at the Eastern
1
As a longshoreman, Perry has been employed as both a hustler
(a truck driver) and a slinger (a spotter for boxes lifted by a
crane onto and off of ships). As a slinger, he stands underneath
cranes where he is exposed to the noise of their diesel engine
motors and, as a hustler, he is exposed to similar types of noise.
Perry performed the duties of both slinger and hustler while
employed by Universal and Ceres. However, he worked primarily as
a hustler at Universal, inside a cab, whereas he worked primarily
as a slinger at Ceres, outside in the elements.
3
Virginia Medical School Hearing and Balance Center in Norfolk,
Virginia, and Perry had not worked during the five days preceding
the test. Dr. Jacobson, the test administrator, is a board
certified audiologist, and he conducted both bone-conduction and
speech reception tests on Perry. The Jacobson audiogram revealed
a 6.3% binaural hearing impairment.2
Perry filed separate hearing loss claims with the local
Office of Workers’ Compensation Programs against both Universal and
Ceres (which were referred to the Office of Administrative Law
Judges), and subsequently the two claims were consolidated by the
ALJ’s Order of August 22, 2001. Prior to the hearing before the
ALJ, the parties stipulated that Perry suffered from hearing loss
which had been caused, at least partially, by occupational noise
exposure. As Perry was thereby entitled to benefits under §
8(c)(13) of the LHWCA, the only issue to be decided by the ALJ was
which employer — Universal or Ceres — was responsible for Perry’s
benefits as a longshoreman. The ALJ issued his Decision and Order
on March 17, 2003, finding the Jacobson audiogram to be
determinative. See ALJ Decision and Order at 17. Accordingly,
the ALJ concluded that Universal, as the last maritime employer at
2
The record also reveals that a third audiogram was conducted
on Perry by a concern called Miracle-Ear on December 27, 1999,
prior to the Taylor Made and Jacobson audiograms. The ALJ advised
the parties that he would accord no weight to the Miracle-Ear test
because internal inconsistencies rendered it invalid. ALJ Decision
and Order at 6 n.7. Universal makes no contention that the
Miracle-Ear audiogram is determinative or relevant.
4
the time of Perry’s most recent exposure to occupational noise, was
responsible for Perry’s permanent partial disability benefits. Id.
Universal appealed th ALJ Decision and Order to the BRB,
contending that the ALJ had erred in failing to credit the Taylor
Made audiogram and in determining that Universal was the employer
responsible for Perry’s benefits. The BRB affirmed the ALJ
Decision and Order on April 6, 2004, see BRB Opinion at 7, and this
appeal followed. We possess jurisdiction pursuant to 33 U.S.C. §
921(c).
II.
We review BRB decisions for errors of law and for
adherence to the statutory standard governing an ALJ’s factual
findings. Norfolk Shipbldg. & Drydock Corp. v. Faulk, 228 F.3d
378, 380 (4th Cir. 2000). Section 921(b)(3) of the LHWCA directs
that “the findings of fact in the decision under review by the
Board shall be conclusive if supported by substantial evidence in
the record considered as a whole.” 33 U.S.C. § 921(b)(3). Like
the Board, we will uphold the factual findings of an ALJ so long as
they are supported by substantial evidence, and we will not
disregard those findings merely “‘on the basis that other
inferences might have been more reasonable.’” Faulk, 228 F.3d at
380 (quoting Director, OWCP v. Newport News Shipbldg. & Dry Dock
Co., 138 F.3d 134, 140 (4th Cir. 1998)). Our review of factual
findings made by an ALJ is limited, however, and “deference must be
5
given the fact-finder’s inferences and credibility assessments.”
Id. (internal citations and quotation marks omitted).
III.
Whether Ceres or Universal is the responsible employer
for Perry’s benefits turns on the factual determination of when
Perry had an audiogram that was determinative of his disability
under Section § 908(c)(13) of the LHWCA. 33 U.S.C. § 908(c)(13)
(providing that loss of hearing is compensable, audiogram is
presumptive evidence of amount of hearing loss, and statute of
limitations begins to run when employee receives audiogram); see
also Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 961 (9th
Cir. 1998) (determining which audiogram most reliable and awarding
benefits based on date of employee’s last exposure to noise prior
to determinative audiogram). Universal does not contend in this
appeal that the Jacobson audiogram is inaccurate; it instead
maintains that the Taylor audiogram is adequate and determinative,
under the LHWCA and its implementing regulations, to assign
liability for Perry’s benefits to Ceres. Yet, experts testified
before the ALJ that the Taylor and Jacobson audiograms were
contradictory, and that both could not be accurate. ALJ Decision
and Order at 14.
In resolving this dispute, the ALJ engaged in an
exhaustive review of the audiometric evidence, weighing and
commenting on it, and then finding the Jacobson audiogram to be the
6
determinative one. See ALJ Decision and Order at 6-17. Because
the facts relied upon by the ALJ are amply supported by the record,
and the inferences drawn by him are reasonable, we are constrained
to defer to the ALJ’s assessment of the hearing tests. That
reasoning was aptly spelled out in the BRB Opinion, which related
the following:
Ultimately, having taken into account the following
factors: 1) claimant had not been exposed to noise for
five days before the test, thus eliminating concerns of
a temporary threshold shift; 2) tests which confirmed the
accuracy of the audiogram, including speech
discrimination, speech reception and bone conduction,
were performed; 3) the experts agreed that Dr. Jacobson’s
audiogram was the most accurate; and 4) Dr. Jacobson’s
audiogram meets the requirements of a presumptive
audiogram under the [LHWCA],3 the [ALJ] concluded that
Dr. Jacobson’s audiogram is the most credible and
reliable. [ALJ] Decision and Order at 17. In finding
the Taylor Made audiogram to be less reliable, the [ALJ]
considered that this test was not interpreted and
certified by a licensed or certified audiologist or
otolaryngologist; that claimant had worked, and had been
exposed to loud noise, four to five and one-half hours
prior to testing,4 that additional testing to confirm the
audiogram was not performed, and that the experts agreed
3
An audiogram provides presumptive evidence of the extent of
a claimant’s hearing loss if certain conditions are met. BRB
Opinion at 4-5 n.3 (citing 33 U.S.C. §908(c)(13); 20 C.F.R.
§702.441(b); Steevens v. Umpqua River Navigation, 35 BRBS 129, 133
n.6 (2001)). In this proceeding, the parties have stipulated that
the Jacobson audiogram meets the requirements of a presumptive
audiogram. See id. (citing ALJ Decision and Order at 3).
4
The ALJ observed that an employee being tested should be away
from noise for a period longer than four to five and one-half hours
prior to an audiogram being conducted. BRB Opinion at 5 n.4
(citing ALJ Decision and Order at 15-16). Specifically, the ALJ
relied on the expert opinions of Drs. Jacobson, Hecker, and Lee in
concluding that a tested employee should not be exposed to noise
for a period of at least 24 hours prior to his audiogram. Id.
7
that the Taylor and Jacobson audiograms, although
similar, are not within the values for test/retest
reliability. See [ALJ] Decision and Order at 11-17.
BRB Opinion at 5-6. According proper deference to the ALJ’s
factual finding — that the Jacobson audiogram was determinative —
we readily conclude there is substantial evidence to support it.
We therefore sustain the BRB Opinion affirming the ALJ Decision and
Order of the ALJ, and we are content to affirm on its reasoning.
Perry v. Universal Maritime Servs., No. 03-0468 (BRB Apr. 6, 2004)
(unpublished); Perry v. Ceres Marine Terminals, No. 2001-LHC-1909
(Dep’t Labor Mar. 17, 2003).
IV.
Pursuant to the foregoing, we affirm the decision set
forth in the BRB Opinion.
AFFIRMED
8 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1588039/ | 33 So.3d 779 (2010)
S.D.T., a child, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-1955.
District Court of Appeal of Florida, Fourth District.
April 21, 2010.
*780 Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, C.J.
We hold that the contents of a BOLO dispatch were non-hearsay admissible to establish an element of the crime of resisting an officer without violence. See § 843.02, Fla. Stat. (2008).
To find appellant guilty, the trial judge relied on a BOLO dispatch received by the arresting officer, which described two theft suspects at a Wal-Mart. Seeing two persons leaving the Wal-Mart who matched the description in the BOLO, the officer approached and said that he wanted to talk to them. One of the suspects was S.D.T., who fled in spite of the officer's command to stop. The officer ran down S.D.T. catching up with him around the corner of the store.
S.D.T. contends that because the content of the dispatch was hearsay, the trial court was precluded from relying on it to find him guilty. However, the dispatch was not hearsay, because the state did not offer it for the truth of its contents.
One of the elements of resisting an officer without violence is that, at the time of the resisting, the officer was engaged in the lawful execution of a legal duty. See C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). If an officer has reasonable suspicion to make an investigatory stop, then an officer is engaged in the lawful execution of a legal duty. Id. at 1186. "To be guilty of unlawfully resisting an officer, an individual who flees must know of the officer's intent to detain him, and the officer must be justified in making the stop at the point when the command to stop is issued." Id. (citations omitted).
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2008). For the purpose of a hearsay analysis, the declarant in this case was the dispatcher who broadcast the BOLO giving the description of the theft suspects at the Wal-Mart.[1] The state offered the BOLO not to prove the truth of its contentsthat the suspects had committed a theftbut to establish that the arresting officer was engaged in the lawful execution of a legal duty at the time of the stop. Regardless of the truth of the statements in the BOLO, the officer was justified in relying on it to make an investigatory stop.
This non-hearsay use of the BOLO to establish an element of the crime of resisting without violence distinguishes this case from those cases which have held that the contents of a BOLO are inadmissible hearsay. See Conley v. State, 620 So.2d 180 (Fla.1993); Owens v. State, 948 So.2d 1009 (Fla. 4th DCA 2007); Taylor v. State, 845 So.2d 301 (Fla. 2d DCA 2003); Tosta v. State, 786 So.2d 21 (Fla. 4th DCA 2001); *781 Horne v. State, 659 So.2d 1311 (Fla. 4th DCA 1995); Jones v. State, 625 So.2d 1291 (Fla. 4th DCA 1993).
For example, in Conley, the defendant was charged with armed burglary, armed robbery, and sexual battery with a deadly weapon. 620 So.2d at 182. The state offered the testimony of an officer who received a police dispatch report of "a man chasing a female down the street" with "some type of gun or rifle." Id. The Supreme Court held that the BOLO statements were hearsay, since the state used the evidence to prove the truth of the matter asserted, that is, to prove that the defendant "carried a rifle during the criminal episode." Id. at 182.
Similarly, in Taylor, the defendant was charged with carrying a concealed firearm and possession of a firearm by a convicted felon. 845 So.2d at 302. Two deputies testified that they received a radio dispatch about a man in a white Ford pickup truck who was waving around a gun. Id. at 302. A dispute at trial centered on whether the defendant was aware of a .44 magnum revolver found between the passenger door and the seat of the pickup truck. Id. at 302-03. The state used the contents of the radio dispatch to argue that the defendant knew about the gun. Id. at 303. The second district rejected the state's argument that the "entire content of [the] dispatch was admissible to explain why police officers arrived at a crime scene." Id. Citing Conley, the court held that the state "normally ... may not introduce the hearsay content of a dispatch, especially to prove the truthfulness contained within that content." Id. The court recognized that "[t]he content of a dispatch is often relevant at a pretrial suppression hearing" to establish that an officer acted with probable cause and observed that such content "typically plays no role in establishing the elements of the offense at trial." Id.
This case fits within the latter situation acknowledged in Taylor. Without regard to the truth of the matters asserted in the BOLO, the fact that the dispatch was received by the arresting officer went to prove an element of the crime, that when S.D.T. fled, the officer was engaged in the lawful execution of a legal duty.
Affirmed.
POLEN and STEVENSON, JJ., concur.
NOTES
[1] Because we hold that the BOLO was nonhearsay in this case, it is not necessary to address the double hearsay issue inherent in any BOLO. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587282/ | 783 N.W.2d 873 (2010)
STATE
v.
GRIFFIN.
No. 2008AP2538-CRNM.
Court of Appeals of Wisconsin.
January 15, 2010.
Petition for review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587082/ | 33 So. 3d 662 (2008)
EDWARD RALEIGH COMBS
v.
STATE.
No. CR-08-0238.
Court of Criminal Appeals of Alabama.
December 9, 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/1015740/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4475
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS WILLIAMS, a/k/a Paul Ralph Scott, a/k/a
Q, a/k/a Warren Brown, a/k/a Professor,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-02-387)
Submitted: February 28, 2005 Decided: March 24, 2005
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David Lassiter, Jr., JEFFERSON & LASSITER, Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Laura C. Marshall, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Williams appeals his convictions and ninety-six
month sentence for conspiracy to commit bank fraud, in violation of
18 U.S.C. § 371 (2000), and bank fraud in violation of 18 U.S.C.
§ 1344 (2000). We affirm.
Williams first asserts that there was insufficient
evidence to support his convictions. A verdict must be sustained
if there is substantial evidence, taking the view most favorable to
the Government, to support it. Elliott v. United States, 332 F.3d
753, 760-61 (4th Cir.) (applying standard to bench trial), cert.
denied, 540 U.S. 991 (2003). This court “ha[s] defined
‘substantial evidence,’ in the context of a criminal action, as
that evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996) (en banc)). This court does not
weigh the evidence or determine the credibility of the witnesses.
United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). Moreover,
the uncorroborated testimony of one witness or an accomplice may be
sufficient to sustain a conviction. United States v. Wilson, 115
F.3d 1185, 1190 (4th Cir. 1997).
In order to sustain a conviction for conspiracy under 18
U.S.C. § 371, the Government had to prove beyond a reasonable
- 2 -
doubt: (1) an agreement to commit an offense against the United
States; (2) willing participation in the conspiracy by the
defendant; and (3) an overt act in furtherance of the agreement.
See United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999).
To sustain a conviction for bank fraud, the Government had to prove
beyond a reasonable doubt that Williams
knowingly execute[d], or attempt[ed] to execute, a scheme
or artifice to (1) defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the
custody or control of, a financial institution, by means
of false or fraudulent pretenses, representations, or
promises.
18 U.S.C. § 1344. A review of the evidence presented at trial
convinces us that the Government established these elements.
Williams next contends that the district court clearly
erred in giving him a four-level enhancement for playing an
organizing role in the conspiracy, pursuant to United States
Sentencing Guidelines Manual (“USSG”) § 3B1.1(a) (2001).
Information obtained from co-conspirators supported the role
adjustment. Williams’ partner described him as the mastermind
behind the bank fraud scheme, the person who knew all the details
and who told him to recruit others. Another co-conspirator
described how Williams recruited him, told him how to make a bank
deposit, instructed him regarding the sum of money to withdraw, and
then collected the withdrawn money. A third co-conspirator, a bank
employee, testified that Williams approached her to join the
- 3 -
conspiracy and specifically asked her to report confidential
account balances and make fraudulent account transfers. On these
facts, we conclude the district court did not clearly err in
finding that Williams was a leader or organizer in the conspiracy.
Finally, Williams argues that the district court abused
its discretion in imposing a two-level upward departure for
uncharged conduct pursuant to USSG § 52K.21. In its explanation
for the departure, the district court emphasized testimony from co-
conspirators and statements made by Williams himself, that Williams
knowingly and willfully avoided arrest and avoided bringing himself
into custody for a substantial period of time after he was
indicted. The court found that Williams’ conduct led to two trials
and the need for appropriation of additional funds to handle the
case. The court also considered an admission by a co-conspirator
who stated that Williams visited her prior to her trial and
discussed her testimony. We note that because Williams was not
charged for the aforementioned conduct, it was not accounted for in
the calculation of his criminal history category. Therefore, we
conclude that the district court’s decision to depart on this
ground was justified by the facts of the case. We further conclude
that the extent of the departure was not unreasonable.
We therefore affirm Williams’ convictions and sentence.
We dispense with oral argument because the facts and legal
- 4 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 5 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1015755/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4242
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN M. STAGGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1051)
Submitted: March 2, 2005 Decided: March 22, 2005
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Carlyle Steele, Greenville, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Isaac L. Johnson, Jr.,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Steven M. Staggs (“Staggs”) and seventeen co-defendants
were charged in a nine-count indictment with multiple drug
offenses. Staggs was named in two of the nine counts. He was
charged in count one of the indictment with conspiracy to
distribute and possession with intent to distribute five grams or
more of methamphetamine, more than fifty grams of a substance
containing a detectable amount of methamphetamine, and a quantity
of methylenedioxy-methamphetamine (“MDMA” or “Ectasy”) in violation
of 21 U.S.C. § 841(a)(1) (2000). Staggs was also charged in count
seven with possession with intent to distribute a quantity of a
mixture or substance containing a detectable amount of
methamphetamine and a quantity of marijuana and aiding and abetting
each other in the offense in violation of 21 U.S.C. § 841(a)(1)
(2000) and 18 U.S.C. § 2 (2000).
Prior to resolution of the charges against Staggs, the
Government filed an Information pursuant to 21 U.S.C. § 851 (2000)
notifying Staggs that he was subject to enhanced penalties based on
his prior felony drug conviction. Based on this conviction, Staggs
was subject to a sentence of ten years to life in prison.1 See
§ 841(a)(1)&(b)(1)(B). Although Staggs subsequently pled guilty to
both counts, at the sentencing hearing he objected to the § 851
1
Staggs’ prior convictions enhanced his statutory sentencing
range from five years to forty years to ten years to life
imprisonment. See § 841(a)(1)&(b)(1)(B).
- 2 -
enhancement on the grounds that the Government failed to file
copies of the supporting indictments with the Information; asked
the district court to provide a two-level reduction in his offense
level pursuant to United States Sentencing Guidelines Manual
(“USSG”) § 3B1.2(b) (2000) based on his role in the conspiracy; and
objected to the Government’s failure to move for downward departure
pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e) (2000). The
district court denied Staggs’ objections and sentenced him to the
mandatory minimum of ten years’ imprisonment and an eight-year term
of supervised release. Staggs timely filed his notice of appeal.
We have thoroughly reviewed the record in this matter and
conclude that Staggs is not entitled to relief. We find that the
Government filed its § 851 Information in accordance with the
statutory requirements; that we need not address whether Staggs was
entitled to a two-level reduction to his offense level, as Staggs
was sentenced in accordance with the statutory minimum; and, having
deemed that Staggs did not provide substantial assistance, the
Government did not breach the plea agreement by refusing to move
for downward departure.2 Accordingly, we affirm the judgment of
the district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
2
Under circumstances set forth in § 3553(e), substantial
assistance in the investigation or prosecution of another person
who has committed an offense may justify a sentence below a
statutorily required minimum sentence.
- 3 -
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587463/ | 120 S.W.3d 185 (2003)
Allan Kyle DAVIS, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2001-CA-002262-MR.
Court of Appeals of Kentucky.
October 10, 2003.
As Modified October 31, 2003.
*186 Bill Barber, Owensboro, KY, for appellant.
Albert B. Chandler III, Attorney General, J. Gary Bale, Assistant Attorney General, Frankfort, KY, for appellee.
Before GUIDUGLI, JOHNSON and KNOPF, Judges.
OPINION
JOHNSON, Judge.
Allan Kyle Davis has appealed from the final judgment and sentence entered by the McLean Circuit Court on October 11, 2001, following his conditional plea of guilty to the charges of trafficking in a controlled substance within 1,000 yards of a school,[1] possession of a controlled substance in the first degree (methamphetamine),[2] possession of marijuana,[3] possession of drug paraphernalia,[4] and cultivation of marijuana, five or fewer plants, while in the possession of a firearm.[5] Having concluded that the trial court properly denied Davis's motion to suppress all of the evidence seized during the search of his residence, we affirm.
On February 1, 2001, McLean County Deputy Sheriff Jeff Palmer received information from another deputy that Rodney Crick, a man wanted in connection with an outstanding arrest warrant, was residing with Davis at his mobile home in Island, McLean County, Kentucky. Deputy Sheriff Palmer contacted Kentucky State Police Trooper Chuck Payne and the officers proceeded to Davis's residence. When the officers arrived at Davis's mobile home, Trooper Payne went around to the back door and Deputy Palmer walked up to the front door and proceeded to knock. Deputy Palmer then heard a voice from within telling him to come inside.
Upon entering the living room of Davis's home, Deputy Palmer immediately noticed a thick haze of smoke and he smelled the distinct odor of burnt marijuana. Deputy Palmer also noticed two partially burnt marijuana cigarettes in an ashtray on the coffee table in the living room. Davis was sitting on a couch in the living room along-side *187 a Mr. Fields.[6] Deputy Palmer immediately radioed Trooper Payne, who came around to the front and entered the residence. Davis and Fields were placed under arrest. The officers then noticed a loaded handgun,[7] rifles, and a shotgun in plain view. In addition, Trooper Payne found a Browning nine millimeter handgun stuffed between the cushions in the sofa where Fields had been seated.
Both officers then asked Davis if anyone else was present and they informed him that they were looking for Rodney Crick. Davis stated that there was no one else in the mobile home. Soon thereafter, Johnny Revlett was seen coming from the back of the mobile home. Deputy Palmer immediately conducted a pat down search of Revlett, found a syringe on him, and placed him under arrest.
Since the officers continued to be concerned that someone else might still be present in the mobile home, Deputy Palmer proceeded to search the other rooms of the mobile home in an attempt to locate Rodney Crick or any other person and to safely secure the area. Trooper Payne remained in the living room with the three suspects. Upon opening the closet door in the master bedroom, Deputy Palmer found a marijuana growing operation which consisted of several hanging lamps and three marijuana plants. Deputy Palmer also found a baggie full of marijuana and a triple slide scale in an adjacent bedroom.[8] Sitting on top of the scale was a large trash bag, which also contained a large amount of marijuana residue. Deputy Palmer also noticed a glass pipe on a dresser in the bedroom and other firearms were found in the bedroom as well.
Trooper Payne also found a plastic bag filled with what appeared to be methamphetamine in a ceramic container on the kitchen counter and a metal box which contained some baggies and two hemostats.[9] The ceramic container was sealed and Trooper Payne only discovered the contraband upon removing the lid to the dish. The ceramic container was located approximately eight to ten feet from the couch where Davis had been sitting.[10]
Davis was subsequently charged by a McLean County grand jury in an indictment filed on April 18, 2001, with trafficking in a controlled substance within 1,000 yards of a school, while in the possession of a firearm; possession of a controlled substance in the first degree, while in the possession of a firearm; possession of marijuana, while in the possession of a firearm; possession of drug paraphernalia; and cultivation of marijuana, five or fewer plants, while in the possession of a firearm. On May 23, 2001, Davis filed a motion to suppress the evidence seized from his residence, arguing that the search did not fall within any of the exceptions to the search *188 warrant requirement and therefore was violative of Section 10 of the Kentucky Constitution and the Fourth Amendment to the United States Constitution.
A suppression hearing was held on May 29, 2001, and the trial court entered an order denying Davis's motion to suppress on June 22, 2001. The trial court found that since Deputy Palmer was asked to come inside the mobile home, his entry was consensual.[11] The trial court then concluded that any contraband Deputy Palmer saw in plain view when he first entered the mobile home was admissible pursuant to the "plain view" exception to the search warrant requirement.[12] As for the contraband found in the bedrooms, the trial court reasoned that since the officers had reason to fear for their safety, they had a right to enter the other rooms of the mobile home to look for another person. Thus, the marijuana growing operation, other firearms, glass pipe, and marijuana residue were all held to have been properly seized. The Browning nine millimeter found between the cushions of the sofa was also held to have been lawfully seized as it was within the immediate vicinity of Davis at the time of his arrest.
The more difficult question before the trial court pertained to the items seized from the ceramic container found on the kitchen counter. The ceramic container was located approximately eight to ten feet from the couch where Davis was sitting when the officers entered his mobile home. It appears from the record below that the living room and kitchen were immediately adjacent to one another. The trial court described the living room and kitchen as "one large open area." Based upon these circumstances, the trial court concluded that the ceramic container, and the methamphetamine found therein, were admissible as they were within Davis's immediate control.[13]
On September 19, 2001, Davis entered a conditional plea of guilty and an Alford plea to the charge of possession of methamphetamine; and a conditional plea of guilty to the charges of trafficking in a controlled substance within 1,000 yards of a school; possession of marijuana, while in the possession of a firearm; possession of drug paraphernalia; and cultivation of marijuana, five or fewer plants, while in the possession of a firearm.[14] The final judgment and sentence of the McLean Circuit Court was entered on October 11, 2001. Davis was sentenced to four years' imprisonment on each of the felony convictions and 12 months on the misdemeanor paraphernalia conviction, with the sentences to run concurrently. This appeal followed.
Davis raises two issues on appeal. First, Davis claims the trial court abused its discretion by ruling that the evidence seized from the two bedrooms in his mobile home was admissible pursuant to the "safety check" exception to the search warrant requirement. Second, Davis claims the trial court abused its discretion *189 by ruling that the evidence seized from the ceramic container located on the kitchen counter was justified under the "search incident to arrest" exception to the search warrant requirement.
The proper standard of review is set forth in Commonwealth v. Neal,[15] as follows:
An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law [footnotes omitted].[16]
The factual findings in the case sub judice are not in dispute and they are clearly supported by substantial evidence consisting of the testimony presented at the suppression hearing. Thus, the question now becomes, "`whether the rule of law as applied to the established facts is or is not violated.'"[17]
The "safety check" exception to the warrant requirement was first addressed by this Court in Commonwealth v. Elliott.[18] Elliott was residing with his sister in Jefferson County when the probation office received information that he had been going out of state for the purpose of obtaining illegal drugs. Upon receiving this information, several law enforcement officers went to the home of Elliott's sister, Rosetta Palmer.[19] The officers knocked on the door and were subsequently permitted to enter the residence. Once inside, they immediately located and arrested Elliott.[20] After arresting Elliott, some of the officers decided to search the rest of the house for any potential accomplices. In the process of searching Palmer's home, the officers seized several items of contraband that were located in plain view. Elliott was subsequently charged with trafficking in a controlled substance and as being a persistent felony offender in the first degree. Elliott filed a motion to suppress the evidence obtained during the search of his sister's home and the motion was granted.[21]
On appeal, the Commonwealth attempted to invoke the "safety check" exception to the warrant requirement. In declining to apply the "safety check" exception, this Court concluded that, "if the `safety check' exception is adopted, there must be a `serious and demonstrable potentiality for danger'" [citation omitted].[22] This Court went on to conclude that no such immediate threat or security risk existed. The following facts were central to this Court's holding:
The parole officer testified that he had no information that Elliott's alleged "accomplice" was in the house, that Elliott *190 was armed or had any weapons in the house, or even that there were controlled substances in the house. Mr. Elliott offered no resistance to the arrest and the officers admittedly had several days to obtain a search warrant prior to making the arrest.[23]
Davis relies on Elliott and claims that "[t]he Commonwealth simply failed to prove that any serious or potential danger to the officers existed." Davis further argues that "[t]here was no violence or threat of violence by the Appellant or anyone else." We are unpersuaded by this argument, however, as the facts in the case sub judice are clearly distinguishable from Elliott.
Upon entering Davis's home, Deputy Palmer immediately detected the presence of smoke and the smell of burnt marijuana. He also observed in plain view a loaded handgun. Additionally, other firearms were located in the room. Moreover, after the officers were falsely informed by Davis that no one else was present, Revlett suddenly appeared from the back of the mobile home. In Elliott, this Court specifically declined to apply the "safety check" expectation due to the absence of such circumstances.[24] Clearly, in the case sub judice, the presence of a loaded handgun, rifles, a shotgun, drugs, and various individuals suspected of criminal activity constituted a "`serious and demonstrable potentiality for danger'" [citation omitted].[25] To hold otherwise would severely undermine the ability of law enforcement officials to safely and effectively perform their duties. Accordingly, we hold that the trial court properly denied Davis's motion to suppress the items seized during the search of the bedrooms.
The methamphetamine found in the ceramic container located in the kitchen presents a far more difficult issue. Davis claims the trial court abused its discretion by ruling that the search of the ceramic container was justified under the "search incident to arrest" exception to the search warrant requirement. The Commonwealth claims that the search of the container was justified as it was within Davis's immediate control.[26] The Commonwealth relies primarily upon Collins in support of this argument.[27]
In Collins, the defendant was arrested while in a motel room after the police found an automatic pistol and 20 bags of what appeared to be heroin lying on the ground outside his window.[28] The police patted Collins down and then proceeded to search an air conditioner which was located approximately four to seven feet from where Collins was seated. A bus station locker key was found inside a small compartment of the air conditioner. A subsequent search of the locker pursuant to a warrant led to the discovery of several grams of heroin and various drug paraphernalia.[29]*191 Collins filed a motion to suppress the items found within the locker, arguing that the search warrant authorizing the search of the locker was invalid because it was dependent upon the discovery of the key hidden in the air conditioner. This motion was denied.
Our Supreme Court granted discretionary review on the issue of whether the warrantless search of the air conditioner was a valid search incident to the lawful arrest of Collins. Our Supreme Court began its analysis by citing Chimel v. California,[30] for the proposition that "[t]he constitutionality of a search incident to an arrest turns upon whether the area searched is `within [the arrestee's] immediate control'construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."[31] Our Supreme Court then went on to cite United States v. Robinson,[32] for the following proposition:
The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect [emphasis added].[33]
Our Supreme Court concluded its analysis by adopting the following position enunciated by the Sixth Circuit Court of Appeals in Watkins v. United States:[34] "even after a defendant has been restrained pursuant to arrest, the search of an area from which he might gain possession of a weapon is lawful."[35] In upholding the search of the motel room, and, more specifically, the air conditioner, our Supreme Court reasoned that since the air conditioner was located within the immediate area where Collins might have reached, the search was not unconstitutional.
In order to better understand the reasoning underlying our Supreme Court's holding in Collins, we believe a more careful review of the principles at play in Chimel and Robinson is necessary. In New York v. Belton,[36] the United States Supreme Court provided a detailed discussion of the principles underlying the search incident to arrest exception to the warrant requirement. In Belton, the U.S. Supreme Court stated as follows:
It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so. This Court has recognized, however, that "the exigencies of the situation" may sometimes make exemption from the warrant requirement "imperative." Specifically, the Court held in Chimel v. California, that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the *192 immediately surrounding area. Such searches have long been considered valid because of the need "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape" and the need to prevent the concealment or destruction of evidence [citations omitted].[37]
...
Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments "can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement" [citation omitted]. This is because
"Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field.'"
In short, "[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront" [citation omitted].[38]
The Belton Court went on to discuss the interplay between Chimel and Robinson:
So it was that, in United States v. Robinson, the Court hewed to a straightforward rule, easily applied, and predictably enforced: "[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." In so holding, the Court rejected the suggestion that "there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest" [citations omitted].[39]
In Belton, the defendant was pulled over pursuant to a lawful traffic stop and was subsequently arrested for the unlawful possession of marijuana.[40] After the defendant was placed under arrest, the officer conducted a search of the automobile which yielded evidence of contraband, namely cocaine. The cocaine was found in the defendant's jacket pocket, which was left in the back seat of the car. The pocket was zipped and the cocaine was only discovered after the officer unzipped the pocket.[41]
The United States Supreme Court upheld the search under Chimel and Robinson. The Court held that "when a *193 policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" [footnotes omitted].[42] The Court went on to conclude that "the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach" [footnote and citations omitted].[43] The Court noted that such containers may be searched whether they are open or closed as "the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have."[44] The Court acknowledged the possibility that "these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested."[45] However, the Court went on to note that this very argument was rejected in Robinson.[46]
Although Belton involved the search of the passenger compartment of an automobile, a close reading of the case reveals that the principles underlying the Court's decision are not limited to the "automobile exception." It is true that footnote 3 of the opinion reads as follows:
Our holding today does no more than determine the meaning of Chimel's principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.[47]
However, the Court went on in footnote 6 of the opinion to expressly disclaim reliance on the so-called automobile exception: "[b]ecause of this disposition of the case, there is no need here to consider whether the search and seizure were permissible under the so-called `automobile exception'" [citations omitted].[48] Moreover, Wayne LaFave has touched on this issue in his treatise on the Fourth Amendment and we believe the following comment is particularly insightful: "the asserted need for a `bright line' on what constitutes `immediate control' under Chimel, is essentially the same as to containers in cars and other containers."[49] Thus, we conclude that the reasoning employed in Belton is equally applicable to all containers, with the constitutionality of the search turning upon whether the area searched was "`within *194 his immediate control'construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."[50]
For purposes of the present analysis, we conclude that the Belton Court relied upon Robinson in precisely the same fashion as did our Supreme Court in Collins. That is to say, the probability that a particular container could hold a weapon or evidence of criminal conduct is irrelevant provided the search of the container was incident to a lawful arrest. The fact that our Supreme Court left out the language "upon the person of the suspect" from its citation to Robinson tends to suggest that the Court intended to extend the reasoning of Robinson to the entire area within the arrestee's immediate control and not just his person. Thus, we now turn to the question of whether the ceramic container found on the kitchen counter was within Davis's immediate control.
The Commonwealth claims that the search of the air conditioner in Collins closely parallels the search of the ceramic container found on Davis's kitchen counter. The Commonwealth further claims that the distance involved in the case at bar, i.e., eight to ten feet, is "easily congruous" with the distance involved in Collins, i.e., four to seven feet. We agree, however, we also hasten to point out that in the search incident to arrest context, the distance between the arrestee and the area to be searched is not dispositive of the issue. Whether a search is reasonable as incident to a lawful arrest depends on the particular circumstances involved.
Unfortunately, the case law in Kentucky is rather underdeveloped as to what circumstances may or may not give rise to a valid search of the area within an arrestee's immediate control pursuant to a custodial arrest.[51] However, we believe a Sixth Circuit Court of Appeals case out of the Western District of Kentucky, Watkins, supra, is particularly on point and helps to shed some light on the issue. In *195 Watkins, the defendant was arrested in the residence of a friend pursuant to a valid warrant. At the time of his arrest, two bundles of heroin were found in the bathrobe Watkins was wearing.[52] The arresting officers then testified that they accompanied Watkins to the bedroom so he could get a shirt. Once in the bedroom, the officers noticed the butt of a firearm under the mattress of the bed. Watkins challenged the search claiming that the officers took him to the bedroom for the sole purpose of conducting a search, and that they only discovered the gun after lifting the mattress off the bed.[53] In upholding the search, the Sixth Circuit stated as follows:
This Court has squarely held that even after a defendant has been restrained pursuant to arrest, the search of an area from which he might gain possession of a weapon is lawful [citation omitted]. The Court stated:
A search incident to arrest may extend to "the arrestee's person and the area `within his immediate control'construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence" [citation omitted].[54]
The Court went on to conclude that "[s]ince the gun in question was within defendant's reach in the bedroom where he was taken to get a shirt, the seizure of the weapon under the circumstances of this arrest was lawful."[55]
In Collins, our Supreme Court agreed with the position taken in Watkins that "the area which may be searched under Chimel is that area from which the arrestee might gain possession of a weapon or destructible evidence" [emphasis original].[56] In the case sub judice, the room in which Davis was arrested was described as "one large open area." Thus, this case does not involve the search of a separate enclosed area. Moreover, Deputy Palmer and Trooper Payne did not have to escort Davis to the kitchen to bring the ceramic container within Davis's immediate control. According to the trial court, the container was approximately eight to ten feet from where Davis was situated. Thus, we hold that the kitchen counter was within the immediate area where Davis might have "gained possession of a weapon or destructible evidence." Pursuant to Collins, the constitutionality of a search incident to a lawful arrest, "`does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found[.]'"[57] Accordingly, under the circumstances of this case, "we cannot say the search was unreasonable nor unconstitutional."[58]
Based on the foregoing reasons, the order of the McLean Circuit Court denying Davis's motion to suppress the items seized from his residence is affirmed.
ALL CONCUR.
NOTES
[1] Kentucky Revised Statutes (KRS) 218A.1411.
[2] KRS 218A.1415. Davis entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on the methamphetamine charge.
[3] KRS 218A.1422.
[4] KRS 218A.500.
[5] KRS 218A.1423 and KRS 218A.992.
[6] Fields's first name does not appear in the record.
[7] Deputy Palmer testified at the suppression hearing that he could tell the handgun was loaded because he could see through the cylinder.
[8] Both the marijuana and the scale were found in plain view in the bedroom.
[9] A hemostat is a long-handled clamp used to control bleeding in surgery. The device is commonly referred to by marijuana smokers as a "roach clip." As for the metal box and the baggies and hemostats found inside the box, the trial court granted Davis's motion to suppress due to the fact that neither of the officers could remember where the box was located or how it was found.
[10] The record is unclear as to the exact size of the ceramic container, however, it was described by Trooper Payne as "some kind of little knick knack. Like to me, something a lady would have on her dresser or something."
[11] Davis argued before the trial court that the entry was not consensual, but concedes on appeal that there was sufficient evidence to support the trial court's findings.
[12] See Hazel v. Commonwealth, Ky., 833 S.W.2d 831 (1992).
[13] The trial court cited Collins v. Commonwealth, Ky., 574 S.W.2d 296 (1978), in support of its ruling.
[14] Pursuant to a plea agreement with the Commonwealth, the language "and while in the possession of a firearm" was deleted from the charges of possession of a controlled substance in the first degree and trafficking in a controlled substance within 1,000 yards of a school.
[15] Ky.App., 84 S.W.3d 920, 923 (2002).
[16] Id. (citing Adcock v. Commonwealth, Ky., 967 S.W.2d 6, 8 (1998); and Commonwealth v. Opell, Ky.App., 3 S.W.3d 747, 751 (1999)).
[17] Adcock, supra at 8 (quoting Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)).
[18] Ky.App., 714 S.W.2d 494 (1986).
[19] Id. at 495.
[20] Id. Elliott was on parole from a manslaughter conviction. Although the officers did not have an arrest warrant, a parole officer is nonetheless authorized by statute to make an arrest upon a reasonable belief that the parolee has violated the terms of his release. KRS 439.430.
[21] Id.
[22] Id. at 496.
[23] Id.
[24] Id.
[25] Id.
[26] The Commonwealth does not attempt to justify the search under the "safety check" exception to the search warrant requirement. In fact, the Commonwealth concedes that Trooper Payne's sole purpose for opening the container was to search for drugs.
[27] Davis claims that Clark v. Commonwealth, Ky.App., 868 S.W.2d 101 (1993), is controlling. We disagree as Clark is clearly factually distinguishable from the case sub judice. Clark involved an automobile search which was predicated upon an arrest which was later determined to be arbitrary and capricious. Id. at 107. The arrest in the case sub judice was valid and did not serve as a pretext for conducting a search incident to arrest.
[28] Collins, 574 S.W.2d at 297.
[29] Id.
[30] 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
[31] Collins, 574 S.W.2d at 297 (quoting Chimel, 395 U.S. at 763, 89 S.Ct. 2034).
[32] 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
[33] Id. at 235, 94 S.Ct. 467. The language "upon the person of the suspect" was omitted from our Supreme Court's quote from Robinson. Collins, supra at 298.
[34] 564 F.2d 201 (6th Cir.1977), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978).
[35] Id. at 204.
[36] 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
[37] Id. at 457, 101 S.Ct. 2860.
[38] Belton, 453 U.S. at 457-58, 101 S.Ct. 2860.
[39] Id. at 459, 101 S.Ct. 2860.
[40] Belton was not driving the car, he was a passenger along with several other men. Moreover, the car did not belong to Belton.
[41] Id. at 455-56, 101 S.Ct. 2860.
[42] Id. at 460, 101 S.Ct. 2860.
[43] Id.
[44] Id. at 461, 101 S.Ct. 2860.
[45] Id.
[46] "`The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.'" Id. (quoting Robinson, 414 U.S. at 235, 94 S.Ct. 467).
[47] Belton, 453 U.S. at 460 n. 3, 101 S.Ct. 2860.
[48] Id. at 462 n. 6, 101 S.Ct. 2860. In addition, we cannot overlook the fact that when the police officer in Belton searched the zipped pocket of the arrestee's jacket, which was located in the passenger compartment of the car, the arrestee was standing on the side of the highway away from the vehicle.
[49] Wayne R. LaFave, Search and Seizure, Vol. III, Chap. 5, § 5.5(a), p. 177 (3d ed.1996). Moreover, numerous decisions from various federal courts have relied upon Belton to permit warrantless searches of containers incident to a lawful arrest in situations were the automobile exception was entirely inapplicable. See, e.g., United States v. Porter, 738 F.2d 622, 627 (4th Cir.1984), cert. denied 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984) (warrantless search of a carry-on bag at an airport); United States v. Litman, 739 F.2d 137, 138-39 (4th Cir.1984) (warrantless search of a shoulder bag in a hotel room); United States v. Silva, 745 F.2d 840, 847 (4th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404, 84 L.Ed.2d 791 (1985) (warrantless search of a zipper bag in a hotel room); United States v. Fleming, 677 F.2d 602, 607 (7th Cir.1982) (warrantless search of paper bag in the immediate area of the defendant upheld despite the fact that at the time of the search defendant was handcuffed); United States v. Herrera, 810 F.2d 989, 990 (10th Cir.1987) (warrantless search of a briefcase carried by arrestee); United States v. Tavolacci, 704 F.Supp. 246, 252-53 (D.D.C.1988) (warrantless search of luggage at railway station). In addition, several state courts have taken a similar approach. See, e.g., Lee v. Maryland, 537 A.2d 235, 311 Md. 642, 670-71 (1988); Commonwealth v. Madera, 521 N.E.2d 738, 402 Mass. 156, 157-58 (1988); Colorado v. Hufnagel, 745 P.2d 242 (1987); and New York v. Smith, 59 N.Y.2d 454, 458, 465 N.Y.S.2d 896, 452 N.E.2d 1224 (1983).
[50] Chimel, 395 U.S. at 763, 89 S.Ct. 2034, Collins, 574 S.W.2d at 297. This point is further buttressed by the fact that Chimel provided the theoretical grounding for the Court's decision in Belton. Moreover, "[e]ven if we assume that the bright line test of Belton relates exclusively to searches involving the contents of automobiles, Belton nevertheless demonstrates that Chimel's concept of an area of control is quite flexible." Lee, 537 A.2d at 249.
[51] The only Kentucky case dealing with the constitutionality of a search incident to arrest in which Collins is cited as authority is Commonwealth v. Montaque, Ky., 23 S.W.3d 629, 633 n. 1 (2000), and Montaque does no more than state that Collins stands for the position that "[t]he constitutionality of a search incident to an arrest turns upon whether the area searched is `within (the arrestee's) immediate control construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.'"
[52] Watkins, 564 F.2d at 203.
[53] Id.
[54] Id. at 204-05.
[55] Id.
[56] Collins, 574 S.W.2d at 298.
[57] Id. (quoting Robinson, 414 U.S. at 235, 94 S.Ct. 467).
[58] Id. at 298. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3085710/ | Order entered February 27, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01735-CR
No. 05-13-01736-CR
No. 05-13-01737-CR
JAVIER A. MONTOYA-RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F12-56281-W, F12-56282-W, F13-58584-W
ORDER
The Court ORDERS the Dallas County District Clerk to file the clerk’s records in these
appeals within FIFTEEN DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to Gary
Fitzsimmons, Dallas County District Clerk; the Dallas County District Clerk’s Office, Criminal
Records Division; and to counsel for all parties.
/s/ LANA MYERS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4215801/ | Appeal Dismissed and Memorandum Opinion filed October 26, 2017.
In The
Fourteenth Court of Appeals
NO. 14-17-00356-CV
DONALD E. KILPATRICK, Appellant
V.
NOBLE CAPITAL SERVICING LLC, Appellee
On Appeal from County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1088694
MEMORANDUM OPINION
This is an appeal from a judgment signed February 22, 2017.
The clerk’s record was filed May 8, 2017. No reporter’s record has been filed
in this case. The court reporter informed this court that appellant has not made
arrangements to pay for the reporter’s record. On June 21, 2017, the clerk of this
court notified appellant that we would consider and decide those issues that do not
require a reporter’s record unless appellant, within 15 days of notice, provided this
court with proof that he had requested the record and paid or made arrangements to
pay for the record. See Tex. R. App. P. 37.3(c). Appellant filed no response.
On August 8, 2017, the court ordered appellant to filed a brief by September
7, 2017. We cautioned that if appellant failed to comply with our order, we would
dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). No brief
was filed.
Hurricane Harvey struck the Texas coast on August 25, 2017. On August 28,
2017, the Supreme Court of Texas issued Misc. Docket No. 17-9091, an emergency
order directing all courts in Texas to consider disaster-related delays as good cause
for modifying or suspending all deadlines in any case.
As a result, on September 19, 2017, the court issued another order regarding
appellant’s brief. We stated that if appellant did not file a brief by October 2, 2017,
the court would dismiss the appeal for want of prosecution. See Tex. R. App. P.
42.3(b). No brief was filed.
Accordingly, the appeal is dismissed.
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/2440678/ | 970 N.E.2d 271 (2012)
BROWN
v.
STATE.
No. 45A03-1107-CR-320.
Court of Appeals of Indiana.
July 3, 2012.
BARTEAU, Sr.J.
Affirmed.
RILEY, J. and KIRSCH, J., Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3085709/ | Opinion filed March 1,
2012
In The
Eleventh
Court of Appeals
__________
No. 11-10-00073-CR
__________
MICHAEL
JARROD MCGOUGH, Appellant
V.
STATE
OF TEXAS, Appellee
On
Appeal from the 91st District Court
Eastland
County, Texas
Trial
Court Cause No. 21655
M
E M O R A N D U M O P I N I O N
The
jury convicted Michael Jarrod McGough of continuous sexual abuse of a young
child and assessed his punishment at confinement for ninety-nine years. We
affirm.
The
Charged Offense
A
person commits the offense of continuous sexual abuse of a young child if:
(1) during a
period that is 30 or more days in duration, the person commits two or more acts
of sexual abuse . . . ; and
(2) at the
time of the commission of each of the acts of sexual abuse, the actor is 17
years of age or older and the victim is a child younger than 14 years of age.
Tex. Penal Code Ann. § 21.02(b) (West
Supp. 2011). An “act of sexual abuse” includes, as relevant here, aggravated
sexual assault under Section 22.021 of the Penal Code and indecency with a
child under Section 21.11(a)(1) of the Penal Code. Id. §§ 21.02(c)(2),
(4).
The
indictment alleged all the statutory elements of the offense of continuous
sexual abuse of a young child. Specifically, the indictment alleged that
appellant, “on or about September 1, 2007 through November 16, 2007, and
during a period that was 30 days or more in duration, committed two or more
acts of sexual abuse against Jane Doe [a pseudonym].”[1]
The indictment further alleged that, at the time the acts of sexual abuse were
committed, appellant was seventeen years of age or older and the child was
younger than fourteen years of age and not the spouse of appellant. The
indictment alleged the acts of sexual abuse to be (1) indecency with a
child by contact by touching the anus of the child, (2) indecency with a child
by contact by touching the genitals of the child, (3) aggravated sexual assault
by causing the penetration of the anus of the child by the sexual organ of
appellant, and (4) aggravated sexual assault by causing the penetration of the
sexual organ of the child by the sexual organ of appellant.
Issues
on Appeal
Appellant
presents two issues for review. Both issues challenge the sufficiency of the
evidence to support his conviction. In his first issue, he contends that the
evidence was factually insufficient to establish that sexual abuse occurred. In
his second issue, he contends that the evidence was legally insufficient to
establish that, if sexual abuse in fact occurred, it occurred over a period of
thirty or more days as required by Section 21.02(b) of the Penal Code.
Standard
of Review
We
review a challenge to the sufficiency of the evidence, regardless of whether it
is denominated as a legal or factual sufficiency challenge, under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State,
337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we examine all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and any reasonable
inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
The
Evidence at Trial
The
record shows that Jane Doe is appellant’s daughter. Jane Doe’s mother is
E.M.M.[2]
Jane Doe was twelve years old at the beginning of the time period alleged in
the indictment (September 1, 2007) and thirteen years old at the end of that
time period (November 16, 2007). In 2007, Jane Doe, her parents, and her two
younger siblings lived in a house in Cisco, Texas.
Jane
Doe and her siblings spent the summer of 2007 with their grandparents in Kansas.
They returned to Cisco in the middle of August before the new school year
started. Jane Doe testified that appellant sexually assaulted her on multiple
occasions after she got back from Kansas. She said that the first such
incident occurred in the house a few days after her return to Cisco. Jane Doe
believed that this incident occurred in the laundry room. She said that, on
this occasion, appellant made her sit on the washing machine. Jane Doe said
that appellant touched his penis to her back, made her take off her panties,
and then stuck his penis in her vagina. Jane Doe said that she typically
referred to the “penis” and the “vagina” as bad spots and that appellant stuck
his penis into her bad spot while she was on the washing machine.
Jane
Doe testified that appellant engaged in the same conduct in her bedroom. She
said that appellant made her take off her pants and underwear and lie down on
the bed. According to Jane Doe, appellant then got on top of her and stuck his
penis into her vagina. Jane Doe said that appellant engaged in this conduct
more than one time in her bedroom and that she believed he engaged in this
conduct more than five times in her bedroom. Jane Doe testified that appellant
did not wear underwear and that, when he sexually assaulted her, he unzipped
his pants and took out his penis. Jane Doe testified that appellant engaged in
the same conduct with her on the water bed in his bedroom. She said that, on
these occasions, appellant made her lie down on the water bed and that
appellant then stuck his penis into her vagina. Jane Doe was “pretty sure”
that appellant engaged in this conduct more than five times in his bedroom.
Jane Doe said that, on one occasion, appellant made her sit in a salon chair
that was in the master bathroom of the house and that appellant then stuck his
penis into her vagina. Jane Doe described another incident in which she went
into the attic of the house to get some things. She said that appellant
followed her into the attic. Jane Doe testified that appellant told her to
pull down her pants and bend over and that appellant then stuck his penis into
her vagina. Jane Doe described another incident that occurred in the front
seat of a car that was at their house. She said that appellant told her to lie
down in the car and that appellant pulled off her pants and underwear. Jane
Doe said that appellant unzipped his pants, took out his penis, and then stuck
it into her vagina. Jane Doe also testified that, on one occasion, appellant
stuck his penis into her bottom, which she referred to as a “heinie hole.”
Jane
Doe explained that, during incidents of sexual abuse, “[appellant’s penis] was
kind of soft at first, but then it always got hard.” Jane Doe said that it
hurt her when appellant put his penis into her vagina. She testified that
appellant would “move up and down” when his penis was in her vagina and that it
hurt more when he was moving up and down. She said that appellant put his
penis “all the way” into her vagina. Jane Doe said that, on one occasion, she
bled when appellant put his penis into her vagina. She also said that, when appellant
“moved” his penis out of her vagina during one of the incidents in her bedroom,
“white stuff” got all over her leg and the bed.
Jane
Doe testified that the last time appellant stuck his penis into her vagina
occurred on November 16, 2007. She believed that appellant left “white stuff”
inside her on this occasion. Jane Doe testified that she did not tell anyone
that appellant was sexually abusing her because appellant told her that he
would kill her mom, her siblings, and her if she told.
During
the weekend of November 16 and 17, 2007, Jane Doe stayed at her Aunt Nan’s
house. Jane Doe testified that she told Nan that appellant had touched her. Jane
Doe said that she told Nan because she trusted Nan. Jane Doe said that she
returned to her house on Monday, November 19, 2007. She testified that
appellant left the house to go to Nan’s house. She said that, when appellant returned
home, he was cussing and said that she had started “bullshit.” Jane Doe said
that her mom, E.M.M., asked her what had happened and that, in response, she
told her mom what appellant had done to her. Jane Doe also told her mom that
she might still have “white stuff” inside her.
E.M.M.
testified that, on November 19, 2007, she and appellant were at home. E.M.M.
said that appellant left the house to go to Nan’s house and that, when he
returned home, he talked with Jane Doe alone in her room. When appellant left
Jane Doe’s room, E.M.M. asked appellant what was going on. Appellant told her
that it was no big deal and that “[Jane Doe] was just starting shit.” E.M.M.
said that she questioned appellant further and that appellant told her that Jane
Doe had told Nan he had messed with her “boob.” E.M.M. testified that she then
talked with Jane Doe and asked her what was going on. E.M.M. said that, after
she talked with Jane Doe, she was steamed and irate. She again confronted
appellant. According to E.M.M., appellant admitted to “messing with” Jane Doe
and said, “I did it.” E.M.M. testified that appellant told her that “he had
licked [Jane Doe’s] boob and messed with her, but that he didn’t pop her cherry.”
E.M.M. was furious and wanted to hurt appellant. E.M.M. said that she did not
want to be alone with appellant because she did not know if she could control
herself. Therefore, she called Larry Dean Chadwick Jr., who was appellant’s
cousin and best friend, and told him to come to the house. E.M.M. testified
that she told Chadwick what Jane Doe had told her and what appellant had
admitted he had done. Chadwick arrived at the house, and Nan also came to the
house. E.M.M. called the police. She said that, when the police arrived, she,
appellant, Chadwick, and Nan were standing in the carport. The next day,
E.M.M. took Jane Doe to a doctor’s office, where she was examined by a
physician’s assistant. Jane Doe gave a forensic interview the same day. Soon
thereafter, E.M.M. and her children moved to Kansas to live with E.M.M.’s parents,
and E.M.M. divorced appellant.
Nan testified
that appellant is her nephew. She said that, on November 17, 2007, she was at
her house with Jane Doe and that, on that date, Jane Doe told her that
appellant had done something to her. Nan said that she told Chadwick about
what Jane Doe had told her and that Chadwick then contacted appellant about
Jane Doe’s allegations. Nan said that appellant called her later and told her
that “it didn’t happen.” On November 19, 2007, Nan went to appellant’s house
because she learned that the police were there.
Nan
testified that she did not believe Jane Doe’s allegations. She said that Jane
Doe had problems and was a liar. Nan admitted that she did not tell the police
that Jane Doe was a liar. Nan said that she gave a written statement to the
police. She said that she did not put anything in the statement about Jane Doe
being a liar because she did not think about it when she gave her statement.
Chadwick
testified that, on November 19, 2007, Nan called him. He said that Nan was
upset. Nan told him that Jane Doe had alleged that appellant had touched her
and done things to her. Chadwick said that he called appellant and that
appellant came over to his house. Chadwick said that he told appellant about
Jane Doe’s allegation that “[appellant] had been messing with her.” Chadwick
gave a written statement to the police. He acknowledged that, in his
statement, he said he told appellant that Jane Doe had told Nan “she had white
stuff all over her leg.” Chadwick said that appellant was upset about the
allegations and could not believe that Jane Doe would say anything like the
statement about “white stuff.” Appellant told Chadwick that he was going to
have a talk with Jane Doe.
Chadwick
testified that, at about 9:00 p.m. that night, E.M.M. called him and said, “Oh,
it’s true. It’s true.” He said that E.M.M. was upset and mad. Chadwick said
that he did not believe the allegations were true. Chadwick went to
appellant’s house. When Chadwick arrived, appellant was in a van. Chadwick
testified that appellant got out of the van and said, “Go ahead and hit me. I
know that’s what you’re here for.” Chadwick told appellant that he was not going
to hit him. According to Chadwick, appellant said, “Well, I guess that’s what
I deserve.” Chadwick testified that he responded, “Well, I guess so, but I’m
not going to be the one to do it.” Chadwick said that he asked appellant what
he was thinking and that appellant responded, “Obviously, I wasn’t.” Chadwick
admitted that he told the police officers that he was in “complete shock” over
what appellant told him. Appellant told Chadwick that he was going to leave. Chadwick
then told appellant that he could not run away from his problems. Chadwick
testified that he told appellant that appellant was going to go to jail. Chadwick
stated in his written statement that appellant responded, “I’m not ready to go
to jail.” Chadwick told appellant that he should have thought about that
before, and appellant responded that he should have thought about it before.
Chadwick testified that the police arrived at appellant’s house thirty to
forty-five minutes after he got to the house.
Cisco
Police Department Investigator Jason Weger testified that, on November 19,
2007, he received a call from dispatch advising that a woman had reported that
her husband had admitted to sexually molesting their child. The address for
the dispatch was appellant’s residence. Cisco Police Officer Matthew Scurry
arrived at the scene before Investigator Weger arrived. When Investigator
Weger arrived, he talked with Officer Scurry. Investigator Weger also talked
with E.M.M., Nan, and Chadwick. Investigator Weger said that E.M.M. was upset
and angry, that Nan was upset and concerned, and that Chadwick was upset and in
shock. Investigator Weger testified that there was no indication from anyone
that Jane Doe was a liar or making up anything. Officer Scurry testified that
he did not hear anyone say that Jane Doe was lying or had made up her
allegations. Officer Scurry transported appellant to the police station.
At
the police station, Officer Scurry took a written statement from Chadwick.
Chadwick said in the statement that “[he] was in complete shock of what
[appellant] just told [him].” Officer Scurry testified that Chadwick did not tell
him that Jane Doe was lying about what happened. The following day,
Investigator Weger took a written statement from Nan. Investigator Weger
testified that Nan did not express to him that Jane Doe was a liar or that she
believed Jane Doe’s allegations were not true. Investigator Weger testified
that, based on his investigation, he concluded that appellant assaulted Jane
Doe multiple times, that the first assault occurred on or about August 15, 2007,
and that the assaults continued to occur until November 17, 2007.
Sharla
Brook Carroll testified that she was employed as a physician’s assistant at the
Family Health Clinic. She testified that she examined Jane Doe on November 20,
2007. Carroll interviewed Jane Doe as part of the examination. Carroll
testified that Jane Doe told her that appellant had molested her for “quite
some time” before she was ready to come forward and tell someone about it; that
appellant had told her not to tell anyone; that appellant had molested her or
had intercourse with her over twenty times; that appellant had engaged in
sexual intercourse with her; that appellant had “put his bad part inside of [her],
and it hurt”; that “intercourse [had] happened every time that [appellant had] licked
her genitals and licked her breasts”; that, “when [appellant had] pushed his
bad part against her, the white stuff went all over”; and that appellant had
engaged in anal intercourse with her on one occasion. Carroll said that Jane
Doe knew things that “normal 12 and 13-year old little girls do not know.”
During
the examination, Carroll determined that Jane Doe did not have any bruising, lesions,
or tears in her vaginal area. Carroll saw a small tear in Jane Doe’s hymen.
Carroll testified that the tear could have been caused by penetration by a
penis. However, Carroll said that any sort of trauma can tear a hymen and that,
therefore, there was no way to determine whether the tear in Jane Doe’s hymen had
been caused by a penis. The results of Carroll’s examination of Jane Doe were
inconclusive as to whether or not she had been sexually assaulted. Carroll testified
that finding no evidence of sexual assault during an examination is not unusual.
She said that the genital area is very vascular in nature and heals very
quickly. She explained that, in most cases, signs of trauma in the genital
area exist only for a day or two after a traumatic injury occurs. Carroll also
testified that no semen was detected during her examination of Jane Doe. However,
she also said that semen normally can be detected for only twenty-four to
thirty-six hours and that, therefore, it is unlikely that semen would be
detected in an examination that is performed four days after a sexual assault. Jane
Doe claimed that the last sexual assault occurred on November 16, 2007, which
was four days before she saw Carroll.
The
defense called a number of witnesses to provide opinion testimony as to whether
Jane Doe was truthful. Melissa Starr was Jane Doe’s third grade reading
teacher. Starr testified that Jane Doe was dishonest at times. Starr
explained that Jane Doe was dishonest about things that typical third graders
might be dishonest about. Starr said that Jane Doe would be dishonest when she
was in trouble but, if confronted, would eventually tell the truth. Mindy
Stephenson was Jane Doe’s fifth grade homeroom teacher. Stephenson testified that
Jane Doe lied quite a bit and more than most children. Stephenson said that,
if confronted, Jane Doe would most of the time tell the truth. Donna Baker was
Nan’s neighbor. Baker testified that she knew Jane Doe. Baker said that Jane
Doe would not tell the truth. Norma Chadwick, Chadwick’s mother, testified
that “[Jane Doe] will lie to you as fast as she’ll look at you, and make you
believe it.” The defense also called Chadwick back to the stand. Chadwick did
not believe “that the truth [was] in [Jane Doe].”
Appellant
testified that Jane Doe’s allegations were not true. He said that he had never
sexually abused her. Appellant said that “[Jane Doe] would rather climb a tree
and tell you a lie than stand on the ground and tell you the truth.” He also
said that Jane Doe “lied all the time” and that, “[i]f her mouth is open, she’s
probably lying.” Appellant believed that Jane Doe made up her allegations
against him as a way to get back at him for spanking her for pulling a gun on
her brother and his friend.
Appellant
testified that Chadwick called him and said that he needed to talk with him
about something important. Appellant said that he went to Nan’s house and
talked with Chadwick. According to appellant, Chadwick told him that Jane Doe
had alleged that “[appellant] had touched her boob.” Appellant testified that
he told Chadwick that he was going to talk with Jane Doe. Appellant said that
he went home and talked with Jane Doe. He said that he asked her, “Why [was] she
saying all this stuff?” Appellant said that Jane Doe would not answer him. Appellant
then told E.M.M. that Jane Doe was “starting crap.” Appellant said that he
told E.M.M. about Jane Doe’s allegations. Appellant said that, later, E.M.M.
told him that Chadwick was “on his way over to kick [his] tail.” When Chadwick
arrived, appellant was sitting in his van. Appellant said that he asked
Chadwick whether he was there “to kick [his] tail.” Appellant testified that
he did not tell Chadwick, “Well, that’s what I deserve,” but instead told him,
“If I would have done that, that’s what I would have deserved.” Appellant
acknowledged that, when Chadwick asked him what he was thinking, he responded
that he was not thinking. Appellant testified that, when he made this
statement, he was not admitting guilt as to Jane Doe’s allegations but,
instead, was referring to his decision to tell E.M.M. about Jane Doe’s
allegations.
Analysis
In
his first issue, appellant asserts that his conviction rests upon the
uncorroborated testimony of Jane Doe. Appellant contends that Jane Doe’s
testimony that he sexually abused her was uncorroborated and lacked credibility
and that, therefore, the evidence was insufficient to establish that sexual
abuse occurred. Appellant states in his brief that, “where, as here, not only
is there a motive for lying clearly established, but at least five witnesses
(most of them unrelated to the complainant or the accused) testify that the
complainant’s reputation for lying is bad, it remains that one may reasonably
conclude that the evidence is so weak that the verdict is clearly wrong and
manifestly unjust.”
The
testimony of a child victim alone is sufficient to support convictions for
aggravated sexual assault of a child and indecency with a child. Tex. Code Crim. Proc. Ann. art. 38.07
(West Supp. 2011); Chapman v. State, 349 S.W.3d 241, 245 (Tex. App.—Eastland
2011, pet. ref’d); Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana
2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas
2002, pet. ref’d). Thus, Jane Doe’s testimony that appellant sexually
assaulted her on multiple occasions is sufficient to establish that appellant
sexually abused her multiple times. The jury, as the trier of fact, was the
sole judge of the credibility of the witnesses and the weight to be given their
testimony. Tex. Code Crim. Proc. Ann.
art. 36.13 (West 2007), art. 38.04 (West 1979). As the sole judge of the
credibility of the witnesses, the jury was free to believe Jane Doe’s testimony
that appellant sexually abused her and to disbelieve appellant’s testimony that
he did not sexually abuse her. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986); Polk, 337 S.W.3d at 289. As demonstrated by its
verdict, the jury believed Jane Doe. Appellant essentially asks us to conclude
that Jane Doe is not credible even though the jury found her credible. An appellate
court, however, may not reevaluate the weight and credibility of the record
evidence and substitute its judgment for that of the jury. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Viewing
all the evidence in the light most favorable to the verdict, we note that
evidence in addition to Jane Doe’s testimony supports the conclusion that
sexual abuse occurred. E.M.M. testified that appellant admitted to “messing
with” Jane Doe. Appellant told E.M.M. that “he had licked [Jane Doe’s] boob
and messed with her, but that he didn’t pop her cherry.” Carroll testified
that Jane Doe told her that appellant had molested her for “quite some time”
and had engaged in sexual intercourse and anal intercourse with her. According
to Chadwick, appellant said that he deserved to be hit and that he obviously
was not thinking. During his testimony, appellant tried to explain his
statements to Chadwick. However, the jury was entitled to believe Chadwick’s
testimony about those statements. If believed, Chadwick’s testimony supports an
inference that, by his statements, appellant was acknowledging guilt on Jane
Doe’s allegations. We conclude that the evidence is sufficient to establish
that multiple incidents of sexual abuse occurred as alleged in the indictment.
Appellant’s first issue is overruled.
In
his second issue, appellant contends that the evidence was insufficient to
establish that, if sexual abuse occurred, it occurred over a period of thirty
or more days as required by Section 21.02(b) of the Penal Code. Jane Doe
testified that the first incident of sexual assault occurred a few days after
she returned to Cisco in the middle of August 2007. As appellant asserts, Section
21.02 of the Penal Code became effective September 1, 2007, and it does not
apply to an offense committed before that date. See Martin v. State,
335 S.W.3d 867, 873 (Tex. App.—Austin 2011, pet. ref’d). An offense is
committed before the effective date of the statute if any element occurs before
that date. Id. Thus, the State could not rely on any “act of sexual
abuse” that occurred before September 1, 2007, to prove the offense of
continuous sexual abuse of a young child. Rather, to obtain a conviction in
this case, the State was required to prove that continuous sexual abuse occurred
for a period of thirty or more days during the time period beginning on
September 1, 2007, and ending on November 16, 2007.
Jane
Doe testified that appellant sexually assaulted her on multiple occasions. She
said that the first incident of sexual assault occurred in August 2007 and that
the last incident of sexual assault occurred on November 16, 2007. Jane Doe
did not testify as to a specific date that any of the other sexual assaults
occurred. She said that the sexual assaults occurred in the laundry room, her
bedroom, appellant’s bedroom, the master bathroom, the attic, and a car. Jane
Doe told Carroll that appellant had molested her for “quite some time” before
she was ready to tell someone about the abuse. Jane Doe also told Carroll that
appellant had molested her or had intercourse with her over twenty times. The
evidence was sufficient to establish that appellant engaged in a prolonged
pattern of sexual assault of Jane Doe. Based on the evidence that multiple
sexual assaults occurred and that those assaults occurred for “quite some
time,” the jury could have reasonably inferred that appellant committed more
than one act of sexual abuse against Jane Doe during a period that was thirty
or more days in duration and that ended on November 16, 2007. Therefore, we
conclude that the evidence is sufficient to support appellant’s conviction.
Appellant’s second issue is overruled.
This
Court’s Ruling
The judgment of the
trial court is affirmed.
TERRY
McCALL
JUSTICE
March 1, 2012
Do not
publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
[1]The child’s actual name was disclosed and used during
trial. However, we will refer to the child as “Jane Doe” in this opinion to
protect her identity.
[2]We use the mother’s initials to protect the identity of
the child. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1587161/ | 944 So.2d 431 (2006)
STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant,
v.
Dawn AMORA and Rick Amora, as parents and guardians of Marissa Amora, a minor child, Appellees.
No. 4D05-3346.
District Court of Appeal of Florida, Fourth District.
November 15, 2006.
*432 Kara Berard Rockenbach and Stephen F. Radford of Gaunt, Pratt, Radford, Methe & Rockenbach, P.A., West Palm Beach, for appellant.
Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Marc C. Brotman and Joseph N. Nusbaum of Brotman Nusbaum Fox, Boca Raton, for appellees.
PER CURIAM.
The Department of Children and Family Services (DCF) appeals the trial court's final judgment against DCF finding DCF negligent and awarding the plaintiffs, Dawn and Rick Amora, as guardians and adoptive parents of Marissa Amora, the sum of $26,849,849.06. DCF raises several issues on appeal that we affirm without comment. We address only DCF's argument that the plaintiffs failed to prove a prima facie case of negligence. We affirm the final judgment because the plaintiffs presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the injuries sustained by two-year-old Marissa Amora.
The vast majority of the material facts in this case are undisputed. DCF first became involved in this case on December 9, 2000 when representatives at the Miami Children's Hospital (MCH) called the DCF hotline because Marissa's biological mother failed to come to the hospital on December 8, 2000, the date of the child's discharge. Shirley Arias, the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. Arias testified that she was concerned that the mother did not show up to the hospital on the date of Marissa's discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while Marissa was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed Arias that the child did not appear very bonded to the mother. In her testimony, Arias expressed *433 concern because Marissa's x-ray results showed a fractured clavicle, for which the mother had no explanation. Arias also testified that the mother's boyfriend was living with the mother and Marissa, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child's natural father and have been responsible for abuse situations.
Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, Arias, the mother, and Dr. Biehler, the head of the child advocacy team (CAT) at MCH, met at the hospital on December 11, 2000. Dr. Biehler testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although Dr. Biehler testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that "this is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing." Arias admitted in her testimony that Dr. Biehler advised her that a home study should be completed first before the child was returned to her home. Arias also testified that after meeting with Dr. Biehler, she suspected physical abuse.
Arias then met with her DCF supervisor in Miami, Robert Boyack, because she wanted to share with him her concerns about Marissa. They agreed that the Miami DCF office could not place a hold on Marissa because the Miami office lacked jurisdiction as Marissa was a resident of Lake Worth. They agreed that an out of town inquiry (OTI) was necessary and that the case should be transferred to the Lake Worth DCF office. The following day, on December 12, 2000, Arias received a phone call from Arlene Padilla, a social worker at MCH. Arias informed Padilla that the Miami DCF office would not place a hold on the child, that the child could be released to the mother, and that the Lake Worth DCF office would follow up. However, according to Arias's testimony, Padilla informed her that a hold was appropriate at that time because of all of the concerns regarding the child's safety. Arias testified that she shared these concerns with Padilla.
Arias testified that Padilla then consulted with her supervisor at MCH, and both Padilla and her supervisor called Arias again on December 12, 2000, which was the second phone call that day from Padilla to Arias. Arias testified that Padilla and her supervisor were very concerned with the child being released and that they would feel much more comfortable if they had the name and number of the protective investigator in Lake Worth who would be following up on the case so that they could speak with that person. Ten minutes later, Arias called the DCF office in Lake Worth and was informed that before the case could be reassigned to an investigator in the Lake Worth office, Arias would have to update the computer with all of the information concerning the case. While updating the computer, Arias received a third phone call from Padilla, who again sounded concerned. Arias testified that she had nothing new to tell Padilla because she was still in the process of updating the computer and that no investigator in Lake Worth had been assigned to the case at that point. After completing the update, Arias called DCF in Lake Worth, informing them that the update had been completed, and Arias was given the name of the protective investigator in Lake Worth assigned to do the OTI. Arias testified that she told the Lake Worth office that the case was "urgent" because *434 there were many concerns about the mother's ability to care for the child. Arias also testified that she then called Padilla and informed her that the case had been reassigned and gave her the name of the DCF protective investigator in Lake Worth, Evelyn Diez.
Arias testified that that same day, December 12, 2000, she met with Steve Estes, Boyack's supervisor, and Estes informed Arias that his supervisor received a phone call from the hospital expressing concerns about the child's release. Furthermore, on December 13, 2000, Estes called Arias and informed her that they had two options at that point. First, if the hospital was comfortable, the child could be released to the mother and the case would be followed up in Lake Worth. Second, if the hospital was not comfortable with allowing the child's release, DCF would staff the case with the legal department for the possibility of filing a petition for detention. Because Arias knew that the hospital was not comfortable with allowing Marissa to return home, the case was staffed with legal.
Thereafter, a DCF attorney advised Arias that DCF must complete the following four tasks before the child could be sent home: (1) contact the father of Marissa's half-sister in New Jersey, (2) run criminal checks on the mother and boyfriend, (3) staff the case with the Child Protection Team (CPT), and (4) complete a home study. Arias testified that as of December 20, 2000, she did not contact the father in New Jersey nor did any other witness testify that this task was completed. Evelyn Diez, the DCF investigator in the Lake Worth office, testified that she conducted criminal background checks on the mother and boyfriend, which revealed no criminal records for either the mother or her boyfriend.
As for the CPT review, which is the process of reviewing records and assessing the child by medical professionals to determine abuse, the testimony at trial was that none was completed. Boyack testified that CPT did not do a complete investigation and that the child should not have gone home until CPT did their work. Dr. Biehler also testified that he was not serving in any official capacity as part of a CPT. Dr. Miller, DCF's own retained expert, testified that there was no CPT or equivalent review of this child's medical records to look into the issue of abuse either before she left the hospital on December 15, 2000 or before the child sustained massive brain injuries on January 11, 2001. Dr. Miller agreed that a CPT review of Marissa's available charts and medical history would have shown that Marissa more likely than not was the victim of abusively-inflicted injuries. Furthermore, Dr. Miller agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that this child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse.
As for the home study, which is the review of the child's living situation, Diez testified that she was never requested to do a home study nor was she told by DCF in Miami that a home study or CPT was required before the child could be sent home. Diez did go to the mother's apartment on December 13, 2000 and noticed that there was no crib, toys, baby clothes, or any evidence of a child living there. However, she admitted that had she completed a home study, she would have spoken with people who were allegedly responsible for watching the child, and most certainly the live-in boyfriend, but she never did. Boyack also testified that a home study was not done in this case. Furthermore, although Estes testified that he was advised on the day of the child's release *435 that there was a positive home study, he conceded that a home study report was never actually completed.
Despite DCF's failure to contact the father, to staff the case with a CPT team, and to conduct a home study, Marissa was released from the hospital on December 15, 2000. It is undisputed that on January 11, 2001, the mother's boyfriend physically abused Marissa and caused her permanent and serious injuries. She sustained traumatic brain and spinal cord injury. Her brain damage prevents her from swallowing properly, and she has weakness in all of her extremities as well as a significant degree of cognitive delay. Furthermore, it is improbable that she will ever be able to walk independently, she will most likely need a feeding tube, and in one doctor's opinion, she will never have the ability to have a meaningful two-way conversation due to the impact on her speech. Marissa also takes numerous medications and requires speech, occupational, and physical therapy five days a week. Her injuries will require her dependency on caregivers for the rest of her life.
The Amoras, who adopted Marissa near the end of 2001, sued for negligence, alleging, inter alia, that DCF negligently failed to adequately and reasonably investigate the matter involving Marissa and that DCF's negligence was the proximate cause of the injuries sustained by Marissa. The jury reached a verdict for the plaintiffs and found DCF 75% responsible for causing Marissa's catastrophic injuries, MCH 20% responsible, and the mother 5% responsible. Final judgment was entered against DCF for $26,849,849.06.
On appeal, DCF argues that the trial court erred in denying its motion for directed verdict because the plaintiffs failed to show that the alleged negligence of DCF was the legal cause of the injuries sustained by Marissa, and that any finding of causation could be based only on a stacking of inferences. According to DCF, the inferences that would need to be stacked to reach a finding of causation are that had DCF completed its investigations, DCF would have uncovered the boyfriend's abuse of Marissa, that the discovery of abuse would have led to Marissa's removal from the mother's custody, and thus, prevented the abuse perpetrated by the boyfriend on January 11, 2001.
The standard of review on appeal of a trial court's ruling on a motion for directed verdict is de novo. See Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006). A motion for directed verdict should be granted only when the evidence viewed in the light most favorable to the non-moving party shows that a jury could not reasonably differ as to the existence of a material fact and that the movant is entitled to judgment as a matter of law. See Brown v. Kaufman, 792 So.2d 502, 503 (Fla. 4th DCA 2001). If there is any evidence to support a possible verdict for the non-moving party, a directed verdict is improper. See id. A jury verdict must be sustained if it is supported by competent substantial evidence. See Richey v. Modular Designs, Inc., 879 So.2d 665, 667 (Fla. 1st DCA 2004).
Concerning DCF's argument that the plaintiffs failed to establish that the alleged negligence was the legal or proximate cause of Marissa's injuries, the issue of proximate cause is generally a question of fact concerned with "whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred." Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1116 (Fla.2005) (quoting McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992)). Where reasonable persons could differ as to whether the *436 facts establish proximate causation, the issue must be left to the fact finder. See id. Furthermore, to constitute proximate cause, there must be such a natural, direct, and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act the injury would not have occurred. See Bryant v. Jax Liquors, 352 So.2d 542, 544 (Fla. 1st DCA 1977).
After reviewing the record in a light most favorable to the plaintiffs, we conclude that this case was properly submitted to the jury as there is competent substantial evidence in the record to support a finding that DCF's failure to adequately and reasonably investigate the matters involving Marissa foreseeably and substantially caused the injuries sustained by her. The plaintiffs presented evidence that there is a natural, direct, and continuous sequence between DCF's negligence and Marissa's injuries such that it can reasonably be said that but for DCF's negligence, the abuse to Marissa would not have occurred. For example, Arias testified that she suspected physical abuse several days before the child's release, and the Initial Child Safety Assessment form, which Arias completed on December 14, 2000, indicates that it was "suspected" that Marissa exhibited behaviors that may be indicative of abuse or neglect. Arias also testified that in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child's natural father and have been responsible for abuse situations. Padilla, the social worker at MCH, testified that she was concerned about the child being released to the mother, and she communicated these concerns to Arias and the Lake Worth office before the child was discharged. As a result of Padilla's concerns, DCF's Legal Department ordered that the child could not go home until four tasks were accomplished. However, the record indicates that three of these tasks were not completed prior to Marissa's release. Both Arias and Boyack testified that Marissa should not have gone home until the tasks were completed, yet DCF failed to prohibit the release of Marissa to her mother.
We find support for our decision in Department of Health and Rehabilitative Services v. Yamuni, 529 So.2d 258, 259 (Fla.1988), where the supreme court affirmed a verdict against the Department of Health and Rehabilitative Services (HRS), now DCF, for negligence. In Yamuni, HRS received numerous reports that the infant was being physically abused. Id. HRS investigated, but the infant was allowed to remain in the custody of its natural mother, and HRS failed to place the infant under protective supervision as it was directed to do by court order in January 1980. Id. In August 1980, the infant was admitted to the hospital with severe burns and two fractures to his arm. Id. The arm was medically amputated the following day. Id. The jury found HRS negligent and returned a verdict of 3.1 million dollars, which was reduced to $50,000 pursuant to section 768.28(5), Florida Statutes. Id. The supreme court affirmed, explaining "whether HRS was actually negligent was a jury question and we are satisfied that the record supports the jury verdict." Id. at 262. The record showed that a court order was entered releasing the infant to his natural mother pending further investigation by HRS, and that the mother had agreed to protective supervision by HRS. Id. HRS conceded that because of an "internal breakdown," it closed the case without assigning it to the protective supervision unit and that the court order was not carried out. Id. The supreme court also explained that "HRS is *437 not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime . . . the primary duty of HRS is to immediately prevent any further harm to the child and that the relationship established between HRS and the abused child is a very special one." Id. at 261. Although not specifically addressed in Yamuni, implicit in the supreme court's opinion affirming the verdict is that DCF's negligent failure to place the infant in protective supervision was the proximate cause of his injuries.
Furthermore, we conclude that there is no impermissible stacking of inferences in this case. We find that there is competent substantial evidence that is susceptible to the inference that had DCF adequately and reasonably investigated the matter involving Marissa, the abuse to Marissa would not have occurred. Under the facts of this case, the jury could conclude that DCF's inaction unreasonably exposed Marissa to physical abuse leading to traumatic brain and spinal injury requiring dependency on caregivers for the rest of her life. Dr. Miller, DCF's own expert, agreed that a CPT review of Marissa's available charts and medical history would have shown that Marissa more likely than not was the victim of abusively-inflicted injuries. Furthermore, Dr. Miller agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that this child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse. This evidence could lead a jury to reasonably conclude that it was foreseeable to DCF that if Marissa was released to her mother without further investigation, she could sustain more abuse.
We conclude that the trial court did not err in denying DCF's motion for directed verdict. The plaintiffs made a prima facie case on the issue of legal causation, which issue was properly submitted to the jury. As the supreme court declared in Yamuni, "HRS [now known as DCF] is not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime . . . the primary duty of [DCF] is to immediately prevent any further harm to the child and that the relationship established between [DCF] and the abused child is a very special one." Id. at 261.
Affirmed.
GUNTHER, FARMER and GROSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587167/ | 33 So.3d 654 (2008)
IVAN LEE FRAZIER
v.
STATE.
No. CR-07-1175.
Court of Criminal Appeals of Alabama.
December 19, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/395371/ | 661 F.2d 855
UNITED STATES of America, Plaintiff-Appellee,v.Clarence P. BROWN, Defendant-Appellant.
No. 81-1221.
United States Court of Appeals,Tenth Circuit.
Submitted Aug. 20, 1981.Decided Oct. 14, 1981.
Ronald Aal, Brighton, Colo., for defendant-appellant.
Carole C. Dominguin, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with her on the brief), for plaintiff-appellee.
Before SETH, Chief Judge, McKAY and LOGAN, Circuit Judges.
PER CURIAM.
1
Clarence P. Brown appeals his conviction by jury for transmitting radio energy without a license in violation of 47 U.S.C. § 301(d). The only question on appeal is whether the trial court's instruction to the jury was erroneous when it did not state that the government must show the signals actually left the state.1
2
Based upon radio transmissions they intercepted in Arvada, Colorado, agents of the Federal Communications Commission (FCC) obtained an affidavit for a search warrant. Pursuant thereto they confiscated from Brown's residence a citizens' band type radio transmitter, linear amplifiers, and other radio transmitting apparatus capable of transmitting signals over a hundred miles. The agents testified that although they intercepted the radio signals within Colorado, only a few miles from Brown's transmitter, the wattage of the transmissions was greater than the FCC allows for citizens' band use, and the transmissions could have crossed state borders or interfered with interstate radio signals.
3
Radio communications have traditionally been considered interstate commerce and subject to federal regulation. Pulitzer Publishing Co. v. FCC, 94 F.2d 249, 251 (D.C.Cir.1937). See WOKO, Inc. v. FCC, 153 F.2d 623, 628 (D.C.Cir.), rev'd on other grounds, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946) (plenary power). Cf. Gagliardo v. United States, 366 F.2d 720, 723 (9th Cir. 1966) (construing 18 U.S.C. § 1464). The issue at bar is one of statutory construction, whether under the "effects" test of 47 U.S.C. § 301(d) the government must prove the signals actually extended across a state border. The government offered no proof here that Brown's transmission actually interfered with interstate transmissions or that it crossed a state's border. The statute declares that "No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio ... (d) within any State when the effects of such use extend beyond the borders of said State." 47 U.S.C. § 301 (emphasis added).
4
The statute states expressly that the United States intends to control all channels of interstate radio transmission.2 Cf. American Radio Relay League, Inc. v. FCC, 617 F.2d 875 (D.C.Cir.1980) (upholding FCC authority to prohibit manufacture and sale of amplifiers that might be misused by citizens' band operators). We need not consider here all possible applications of the "effects" test for violation of subsection (d); we hold, however, that it is satisfied by proof that defendant's transmission was powerful enough to cross the state border. Requiring the prosecuting authorities to monitor defendant's signal from a point outside the state in order to sustain his conviction seems to us to impose a greater burden than the statute contemplates. The evidence presented to the jury in the instant case was sufficient to support its judgment that Brown violated the statute. The jury instruction correctly reflected the applicable law.
5
AFFIRMED.
McKAY, Circuit Judge, dissenting:
6
The problem here is that after the government had presented its case, neither the prosecutor, nor the trial court, nor a majority of this court has been content to enforce the radio broadcasting license statute as Congress wrote it.1 Oddly enough, the prosecutor correctly charged the defendant according to Congress' expressed intent but was not content to have the jury charged accordingly. The defendant was charged with making a transmission "the effects of which did extend beyond the borders" of the state without the proper license. (Tr. p. 4, emphasis supplied) While the testimony might have supported such a charge before a properly instructed jury, over objection the trial court added a verb to the statutory prohibition that Congress did not use. This court now ratifies in this criminal case that attempt either to help Congress do what it meant but failed to do, or, more likely, what Congress did not intend to do at all. Instead of properly charging the jury that:
7
Three essential elements are required to be proved in order to establish the offense charged in the information. First, the act or acts of using and operating certain apparatus for transmission of energy, communications, or signals by radio, thereby transmitting energy, communications, or signals by radio when the effects of such use extended ... beyond the borders of the State of Colorado,
8
the court improperly added "or could extend," thus changing the theory both from that charged and that authorized by Congress. If Congress had intended to regulate broadcasts which could but do not in fact extend beyond state boundaries, it was capable of saying so. Apparently even the prosecutor read Congress' clear language to require actual border-crossing when the complaint was prepared and filed. No fair justification has been given for departing from Congress' expressed intent.
9
The issue in this case, then, is to what extent Congress, in fact, exercised its theoretically plenary powers over broadcasting in 47 U.S.C. § 301.2 We must be guided by Congress' language in determining how much of its power Congress actually exercised. The language of the statute makes clear that Congress intended to regulate less than its full commerce clause power. Subsection (d) of 47 U.S.C. § 301, the relevant subsection in this case, covers two kinds of broadcasts: (1) those whose effects extend beyond state borders, and (2) those whose effects do not extend beyond state borders but which interfere with other broadcasts that themselves extend beyond state borders. The government has conceded that the second condition is not involved in this case. The effect of ratifying the instruction in this case is to greatly expand criminal jurisdiction in the face of a contrary congressional intent and counter to the obvious purposes apparent in the general structure of the statutory scheme. While the majority does not think we must concern ourselves with all the persons who might be caught unaware by this expansive rewording of the statute, it seems clear that just such an unwarranted result occurs when it is not necessary.
10
Apparently, the concern which motivates this court to expand Congress' express intent flows from some misplaced concern that neither Congress nor the FCC is capable of devising a method to prove the violations that Congress defined. The evidence in this case itself shows that there is a very simple way to prove that a particular broadcast extended beyond the borders of the state of origin without ringing the state with monitors. The government's expert testified that he was able to measure the strength of the broadcast and that the strength of broadcast required to reach from the place of broadcast to the state border can easily be determined. Simple expert testimony growing out of the investigation giving rise to the charge could satisfy the government's burden if, in fact, the defendant has done unlicensed what Congress has forbidden. The evil in this case is that the effect of the jury instruction was to permit the jury to convict, even if it disbelieved the expert testimony in this case.
11
It is possible that some of the confusion in this case arises from a failure to understand the difference between proof of interstate transmissions by expert testimony or circumstantial evidence and proof through the evidence of actual interstate monitoring. Because this is a criminal case, the expert must testify to more than that the broadcast could leave the state. He must testify that given its strength, it would leave the state. That is scientifically possible in all cases involving broadcasts intended to be regulated by Congress. Of course, had this been a case based on interference with other interstate broadcasts, the proof of actual interference would be necessary and no more difficult.
1
The trial judge gave the following instruction, in pertinent part:
"First, the act or acts of using and operating an apparatus for transmission of energy, communications or signal by radio, thereby transmitting energy, communications or signals by radio when the effects of such use extend or could extend beyond the borders of the State of Colorado.
"Second, doing such act or acts without a license first having been granted.
"Third, doing such act or acts knowingly and willfully ....
"You are instructed that in order to establish that the effects of transmission of energy, communications or signals by radio from and within the State of Colorado extend beyond the borders of said state, the government need not prove that the radio signals actually traversed state borders. The fact that radio transmissions may not have traversed state borders is irrelevant."
2
47 U.S.C. § 301 reads as follows:
"It is the purpose of this chapter, among other things, to maintain the control of the United States over all 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. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio (a) from one place in any Territory or possession of the United States or in the District of Columbia to another place in the same Territory, possession, or District; or (b) from any State, Territory, or possession of the United States, or from the District of Columbia to any other State, Territory, or possession of the United States; or (c) from any place in any State, Territory, or possession of the United States, or in the District of Columbia, to any place in any foreign country or to any vessel; or (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State; or (e) upon any vessel or aircraft of the United States; or (f) upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter."
47 U.S.C. § 301 (emphasis added).
1
47 U.S.C. § 301 reads as follows:
It is the purpose of this chapter, among other things to maintain the control of the United States over all 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. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio (a) from one place in any Territory or possession of the United States or in the District of Columbia to another place in the same Territory, possession, or District; or (b) from any State, Territory, or possession of the United States, or from the District of Columbia to any other State, Territory, or possession of the United States; or (c) from any place in any State, Territory, or possession of the United States, or in the District of Columbia, to any place in any foreign country or to any vessel; or (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State; or (e) upon any vessel or aircraft of the United States; or (f) upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.
2
The court in Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966), made the same mistake regarding 47 U.S.C. § 301(d) that the majority of this court makes today. In determining the extent of Congress' power to regulate the broadcast of obscene, indecent, or profane language under 18 U.S.C. § 1464, the Gagliardo court interpreted the language in 47 U.S.C. § 301(d) to be evidence that Congress intended to regulate all citizen's band broadcasts, both intra- and interstate | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1587200/ | 944 So.2d 1230 (2006)
George PARKS, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 5D06-2558.
District Court of Appeal of Florida, Fifth District.
December 22, 2006.
George Parks, Jr., Lowell, pro se.
No Appearance for Appellee.
PER CURIAM.
George Parks, Jr., appeals from the denial of his latest rule 3.850 motion for postconviction relief, challenging convictions for crimes committed ten years ago *1231 in Citrus County, Florida.[1] This is Parks' ninth appellate proceeding challenging his convictions for sale of cocaine and possession of cocaine stemming from Fifth Judicial Circuit Case No. 96-CF-507. In his instant motion, Parks argues that the prosecutor improperly withheld from discovery a 1994 arrest affidavit for a confidential informant utilized by the State in Parks' case. In order to avoid the two-year deadline for rule 3.850 motions, Parks alleges that the 1994 arrest affidavit is newly discovered evidence that he did not become aware of until early in 2006.
However, it is clear from our review of Parks' prior postconviction filings that he was aware of the arrest (or at least the possibility of other arrests) at least as early as 2001. In a September 4, 2001, rule 3.850 motion, Parks alleged that his counsel was ineffective for failing to more fully investigate this same informant's "other crimes of dishonesty to support her [drug] addiction."[2] A claim of newly discovered evidence "must be made within two years from the date upon which the evidence could have been discovered through the use of due diligence." MacFarland v. State, 929 So.2d 549, 550 (Fla. 5th DCA 2006). It is abundantly clear that Parks knew about this informant's other prior arrests when he filed his September 4, 2001 motion, and he has made no showing as to why he could not have discovered the 1994 arrest affidavit within two years of that date. Therefore, we find that Parks' current rule 3.850 motion, filed on June 18, 2006, was clearly time-barred. As such, the trial court's summary denial was proper.
Because Parks's current appeal appeared to be frivolous, this Court issued a Spencer[3] show cause order. In response, Parks simply attempts to re-argue the merits of his rule 3.850 motion. Having carefully considered Parks's response, along with his prior filings with this Court, we find that Parks is clearly abusing the judicial process with his successive attacks on his convictions and sentences in this case. Therefore, in order to conserve judicial resources, we prohibit George Parks, Jr., from filing with this Court any further pro se pleadings concerning Citrus County, Fifth Judicial Circuit Case No. 96-CF-507. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).
AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.
PLEUS, C.J., PALMER, and LAWSON, JJ., concur.
NOTES
[1] See Fla. R.Crim. P. 3.850.
[2] At trial, the parties discussed the informant's arrests for possession of cocaine and uttering a forged check. These charges were pending against the informant at the time of Parks's trial. According to Parks's motion, the 1994 arrest was for attempting to acquire a controlled substance by fraud. That charge was dismissed in October 1995, after the informant successfully completed a pretrial diversion program.
[3] State v. Spencer, 751 So.2d 47 (Fla.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590402/ | 686 N.W.2d 487 (2004)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Michael Dennis BATEY, Defendant-Appellant.
Docket Nos. 125582 & (92). COA No. 227117.
Supreme Court of Michigan.
September 24, 2004.
On order of the Court, the motion for leave to file brief exceeding page limit is considered, and it is GRANTED. The application for leave to appeal the December 30, 2003 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
MARILYN J. KELLY, J., dissents an states as follows:
This case involved a charge of criminal sexual conduct by an adult male against a teenaged boy. At trial, the prosecutor allegedly made numerous allusions to defendant's sexual orientation, including references *488 to his consensual relationships with adult male partners.
Defense counsel failed to object. Normally, this failure precludes appellate review because the trial court is not provided with the opportunity to cure any error. People v. Buckey, 424 Mich. 1, 18, 378 N.W.2d 432 (1985). However, "[a]n exception exists if a curative instruction could not have eliminated the prejudicial effect or where failure to consider the issue would result in a miscarriage of justice." People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994).
In my opinion, this case satisfies the exception. Defendant was accused of sexually assaulting his teenaged nephew. During the trial, the prosecutor allegedly questioned defendant about his failed relationships with women. He asked defense witnesses if they viewed gay pornography videos or magazines, and questioned them about their sexual orientation.
None of the questions bears any relevance to whether defendant sexually assaulted the victim. Instead, it appears that, in posing them, the prosecutor sought to secure a conviction by playing to societal stereotypes regarding gay men. Furthermore, the prosecutor's questions seem to suggest that the witnesses' sexual orientation affected their truthfulness. This Court long ago held that a witness's "sexual propensities or preferences do not bear on his character for truthfulness or untruthfulness." People v. Mitchell, 402 Mich. 506, 515, 265 N.W.2d 163 (1978). The references to the sexual orientation of defendant and witnesses for the defense were pervasive and extensive.
Even if defense counsel had objected, the damage had already been done. These are not the only improper statements that the prosecutor allegedly made, but they are the most disturbing. The Court of Appeals stated that "Batey has not demonstrated that the prosecutor's comments were likely to have had any negative effect on the jury." Unpublished opinion per curiam, issued August 27, 2002 (Docket No. 227117, 2002 WL 1998565). Given the prevalent stereotypes surrounding homosexuality, defendant has clearly shown that the comments were likely to have a negative effect on the jury. The real question is whether the pervasive comments were outcome-determinative.
I would grant leave to appeal to consider these issues.
MICHAEL F. CAVANAGH, J., concurs in the statement of MARILYN J. KELLY, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587410/ | 33 So. 3d 40 (2010)
DUKES
v.
STATE.
No. 2D10-134.
District Court of Appeal of Florida, Second District.
April 21, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859627/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00365-CR
Joel Adam Hernandez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-93-431, HONORABLE FRED MOORE, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of aggravated robbery. Tex. Penal Code Ann.
§ 29.03 (West 1994). (1) The district court assessed punishment at imprisonment for thirty years.
Appellant robbed the cashier of a San Marcos convenience store at gunpoint. The
robbery was recorded on videotape by two surveillance cameras in the store. The store manager
identified State's exhibits one and two as the videotapes in question. These exhibits were admitted
in evidence without objection. Later, a San Marcos police officer testified that the two
surveillance tapes were each eight hours long and, for the sake of convenience, he had reproduced
on a third videotape the relevant portion of each surveillance tape. When this tape was offered
in evidence as State's exhibit four, appellant objected on the ground of hearsay. The objection
was overruled. In his sole point of error, appellant contends the district court erred by so ruling.
The content of a voluminous recording may be presented in the form of a summary.
Tex. R. Crim. Evid. 1006. In such a case, the original must be made available for examination
by the other party. Id. A duplicate recording is admissible to the same extent as the original
unless a question is raised as to the authenticity of the original or if it would be unfair to admit
the duplicate under the circumstances. Tex. R. Crim. Evid. 1003. No question as to the
authenticity of the original videotapes was raised at trial and they were available for examination
by appellant. Having failed to object to the admission of the original videotapes on hearsay
grounds, appellant waived any hearsay objection to the excerpts taken from the originals and
reproduced in summary form on exhibit four. The point of error is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: April 12, 1995
Do Not Publish
1. After this offense was committed, section 29.03 was amended in a nonsubstantive way. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2859294/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00182-CV
Rhonda Vanderwiele, Debbie Barrett and Jimmy Bryant, Individually and
on Behalf of the Estate of James Bryant and Darlene Bryant, Appellants
v.
Llano Trucks, Inc. d/b/a Frank Smith Llano Trucking
and Frank Smith Llano Trucking, Appellees
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 14493A, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING
Plaintiffs Rhonda Vanderwiele, Debbie Barrett, and Jimmy Bryant, individually
and on behalf of the estate of James Bryant and Darlene Bryant, appeal from a summary judgment
in favor of defendant Llano Trucks, Inc., operating under the trade name Frank Smith Llano
Trucking ("Llano Trucking"). We will affirm the trial-court judgment.
THE CONTROVERSY
The summary-judgment record shows that Scott Wayne Carrigan, an employee of
Llano Trucking, and his friend Robert Wayne Franklin drove a truck from the Llano Trucking
terminal in Marble Falls to Houston and back. During the trip Carrigan and Franklin drank beer
and injected themselves intravenously with methamphetamine. After arriving at the Llano
terminal, Carrigan drank one or two beers while he worked on the truck.
Frank Smith, owner of Llano Trucking, regularly permitted his employees to drink
beer at the terminal and noticed Carrigan drinking a beer on this occasion. Smith did not know
Carrigan was intoxicated, however, and took no action to control Carrigan's conduct. Carrigan
and Franklin left the terminal in Carrigan's personal automobile to go home to Lampasas. They
stopped in Marble Falls to buy gasoline and two thirty-two-ounce bottles of beer. Carrigan
continued driving toward Lampasas while drinking a bottle of beer. He fell asleep at the wheel
and veered off the highway. He awoke suddenly and attempted to regain control of his car,
swerved across the center line, and struck a motorcycle on which James and Darlene Bryant were
traveling. The Bryants died as a result of massive internal injuries sustained in the collision.
At 9:35 p.m., the time of the collision, Carrigan had consumed approximately half
of the thirty-two ounces of beer in addition to alcoholic beverages consumed throughout the day.
Carrigan's blood-alcohol level was tested at 10:55 p.m. Two tests revealed blood-alcohol
concentrations of .1001 and .0987. Based on these tests, plaintiffs' expert witness, a forensic
toxicologist, swore in his affidavit that in his opinion Carrigan was intoxicated when he left the
Llano Trucking terminal.
DISCUSSION AND HOLDINGS
In their sole point of error, plaintiffs complain the trial court erred in sustaining
Llano Trucking's motion for summary judgment because Llano Trucking owed a duty to the
Bryants and the motoring public to prevent Carrigan from becoming intoxicated on the job and
a duty to prevent his operating his automobile while intoxicated. (1)
Whether a duty exists is a question of law. Greater Houston Transp. Co v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). As a general rule, there is no duty to control the
conduct of another person. Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983);
Restatement (Second) of Torts § 315 (1965). However, certain relationships may give rise to a
duty to control the actions of others. For example, "the master-servant relationship may give rise
to a duty on the part of the master to control the conduct of his servants outside of the scope of
employment." Otis Eng'g, 668 S.W.2d at 309. Factors that should be considered in the
imposition of such a duty are: (1) the risk, (2) the foreseeability, (3) the likelihood of injury
weighed against the social utility of the actor's conduct, (4) the magnitude of the burden of
guarding against injury, and (5) the consequences of placing that burden on the employer. Id.;
see also Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993) (other factors include whether one
party has superior knowledge of the risk and whether a right to control another's conduct exists).
Both parties contend the supreme court's decision in Otis Engineering supports
their opposing positions. In Otis Engineering, an employee who was too intoxicated to complete
his shift at a plant was instructed to go home and escorted to the parking lot by his supervisor.
Thirty minutes later, the employee caused the deaths of two people in an automobile collision.
The employer moved successfully for summary judgment on the ground that the employer owed
no duty to act in a non-negligent manner. The court of appeals, holding that material issues of
fact existed, reversed summary judgment. The supreme court, affirming the court of appeals,
announced a new standard of conduct: "[W]hen, because of an employee's incapacity, an
employer exercises control over the employee, the employer has a duty to take such action as a
reasonably prudent employer under the same circumstances would take to prevent the employee
from causing an unreasonable risk of harm to others." Otis Eng'g, 668 S.W.2d at 311 (emphasis
added).
Llano Trucking argues the summary judgment order in the present cause should
be affirmed under Otis Engineering because Llano Trucking did not know of Carrigan's
intoxication and did not purport by any act to control him. Plaintiffs argue Llano Trucking has
misconstrued Otis Engineering in limiting its scope to instances where the employer is shown to
have exercised some control over the incapacitated employee. Otis Engineering, plaintiffs argue,
merely declares that special relationships may give rise to a duty, such as the duty described in
section 317 of the Restatement (Second) of Torts. See id. at 309. Section 317 provides as
follows:
A master is under a duty to exercise reasonable care so to control his servant while
acting outside the scope of his employment as to prevent him from intentionally
harming others or from so conducting himself as to create an unreasonable risk of
bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the
servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to
control his servant, and
(ii) knows or should know of the necessity and opportunity for
exercising such control.
Restatement (Second) of Torts § 317 (1965). Because section 317 does not expressly require an
affirmative act of control, plaintiffs argue Llano Trucking may be held liable for its negligent
failure to act as described in Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex. 1971). In
Maclay, the supreme court, referring to section 317, held that a physician's partnership owed a
duty to its patients to exercise ordinary care to prevent one of its partners from tortiously
interfering with the patient's family relations.
If the partnership received information from which it knew or should have known
that there might be a need to take action, it was under a duty to use reasonable
means at its disposal to prevent any partner or employee from improperly using his
position with the Clinic to work a tortious invasion of legally protected family
interests. This duty relates only to conduct of a partner or employee on the
premises of the Clinic or while purportedly acting as a representative of the Clinic
elsewhere. Failure to exercise ordinary care in discharging that duty would
subject the Clinic to liability for damages proximately caused by its negligence.
See Restatement [(Second) of Torts § 317 (1965)].
Maclay, 466 S.W.2d at 720 (emphasis added). Thus, under Maclay, a partnership may be liable
for damages if it knew or had reason to know of a partner's tortious conduct and failed to use
ordinary care to prevent its occurrence.
Recently, the El Paso Court of Appeals questioned whether Texas has adopted
section 317 of the Restatement and determined that
if Texas recognizes a Section 317 cause of action, it is only in a limited sense that
in order for a duty to arise, the employer must not only have some knowledge of
the employee's condition or incapacity, but must exercise some control or perform
some affirmative act of control over the employee.
DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 210 (Tex. App.--El Paso 1994, writ denied);
see Restatement (Second) of Torts § 317(b) (1965). (2)
Cases involving an employer's duty to control an incapacitated employee, decided
after Otis Engineering, have consistently held that no liability exists unless the employer performs
an affirmative act of control over the employee. See DeLuna, 884 S.W.2d 206, 210 (Tex.
App.--El Paso 1994, writ denied) (employer had no duty with respect to plaintiff injured as a result
of employee's driving while intoxicated when employee had no history of alcohol abuse, employer
had no knowledge that off-duty employee was drinking beer on or near premises, and employer
took no affirmative action to control employee); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632,
639 (Tex. App.--San Antonio 1993, no writ) (no duty because no evidence that employer
performed an affirmative act to put fatigued employee on public highway); Moore v. Times Herald
Printing Co., 762 S.W.2d 933, 935 (Tex. App.--Dallas 1988, no writ) (no evidence of knowledge
of incapacity, and if incapacity did exist, no evidence of an affirmative act of employer to control
employee's actions); Williams v. Sun Valley Hosp., 723 S.W.2d 783, 787 (Tex. App.--El Paso
1987, writ ref'd n.r.e.) (distinguishing Otis Engineering based on lack of affirmative act of
control); Pinkham v. Apple Computer, 699 S.W.2d 387, 390 (Tex. App.--Fort Worth 1985, writ
ref'd n.r.e.) (no "evidence that Apple ever took any affirmative action to control [its employee]
and therefore the first requirement of Otis standard was not satisfied"). We conclude that Otis
Engineering requires some act on behalf of a employer as a prerequisite to establishing a duty
under the common law in the present circumstances.
Because it is undisputed in the summary-judgment record that Smith did not know
Carrigan was intoxicated and did not attempt to control his conduct before the collision, we
conclude Llano Trucking owed no common-law duty to plaintiffs.
Plaintiffs argue section 392.5 of the Federal Motor Carrier Safety Regulations
imposed a duty on Llano Trucking not to allow Carrigan to consume alcohol before driving.
Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.5 (1990). (3) At the time of the
collision, section 392.5 provided as follows:
(a) No person shall--
(1) Consume an intoxicating beverage, regardless of its alcoholic
content, or be under the influence of an intoxicating beverage,
within 4 hours before going on duty or operating, or having
physical control of, a motor vehicle;
. . . .
(b) No motor carrier shall require or permit a driver to--
(1) Violate any provision of paragraph (a) of this section; or
(2) Be on duty or operate a motor vehicle if, by the driver's
general appearance or conduct or by other substantiating
evidence, the driver appears to have consumed an
intoxicating beverage within the preceding 4 hours.
Id. (emphasis added). Plaintiffs assert that because the regulation did not specify "commercial"
vehicles, the Department of Transportation intended that trucking companies must prevent their
drivers from operating even their personal automobiles while under the influence of alcohol. (4)
Llano Trucking points out, however, that a "driver" is defined as "any person who
operates any commercial motor vehicle." Id. § 390.5(c). Furthermore, private transportation was
expressly excepted from the regulations:
(f) Exceptions. Unless otherwise specifically provided, the rules in this
subchapter do not apply to--
. . . .
(3) The occasional transportation of personal property by individuals
not for compensation nor in the furtherance of a commercial
enterprise;
. . . .
(6) The private transportation of passengers.
Id. § 390.3(f)(3), (6).
We conclude the Federal Motor Carrier Safety Regulations did not impose upon
Llano Trucking a statutory duty to prevent Carrigan from driving his personal automobile after
drinking alcoholic beverages.
Because Llano Trucking had no common-law or statutory duty to prevent Carrigan
from driving under the circumstances, we overrule plaintiffs' point of error and affirm the
summary judgment.
John Powers, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: August 30, 1995
Do Not Publish
1. The elements for appellate review of a motion for summary judgment are well
established: (1) The movant for summary judgment has the burden of showing that no genuine
issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in
deciding whether there is a disputed material fact issue precluding summary judgment,
evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference
must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v.
Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
2. Otis Engineering, 668 S.W.2d at 307, and Maclay, 466 S.W.2d at 716, are the only two
supreme court decisions that refer to section 317 as authority. Although Otis Engineering
mentioned only the on-premises and chattel elements--subsection (a) of 317--and did not discuss
subsection (b) regarding what the employer knew or should have known of the necessity and
opportunity to control its employee, the court reversed summary judgment based on the
employer's affirmative act of sending the employee home. Otis Eng'g, 668 S.W.2d at 309-11.
Unlike Otis Engineering, the facts of the present case do not include knowledge of
intoxication or an affirmative act of control. Although the Otis Engineering opinion addressed
only the situation in which an employer exercised control, the court also expressed reluctance
to expand the concept of duty to instances of nonfeasance:
Traditional tort analysis has long drawn a distinction between action and inaction
in defining the scope of duty. Dean Prosser attributes this distinction to the early
common law courts' preoccupation with "more flagrant forms of misbehavior
[rather than] with one who merely did nothing, even though another might suffer
harm because of his omission to act." [William L. Prosser, The Law of Torts §
56, at 338 (4th ed. 1971)]. However, although courts have been slow to
recognize liability for nonfeasance, "[d]uring the last century, liability for
`nonfeasance' has been extended still further to a limited group of relations, in
which custom, public sentiment and views of social policy have led the court to
find a duty of affirmative action." Id. at 339. Be that as it may, we do not view
this as a case of employer nonfeasance.
668 S.W.2d at 309-10. An expansion of duty to include nonfeasance based on such
considerations is for the supreme court in the first instance, not an intermediate appellate
court.
3. Texas has adopted "[a]ll regulations contained in 49 Code of Federal Regulations, Parts
390-393." 16 Tex. Admin. Code § 5.171(11) (1995).
4. We note that the 1995 version of section 392.5 refers to "commercial motor vehicles."
See 49 C.F.R. § 392.5 (1995). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1547218/ | 73 F.2d 52 (1934)
In re LILYKNIT SILK UNDERWEAR CO., Inc.
FULTON COUNTY SILK MILLS et al.
v.
IRVING TRUST CO.
No. 359.
Circuit Court of Appeals, Second Circuit.
August 31, 1934.
Weil, Gotshal & Manges, of New York City (Eli M. Spark, of New York City, of counsel), for appellants.
Hahn, Abeson & Golin, of New York City (Julius J. Abeson, of New York City, of counsel), for trustee.
Before MANTON, SWAN, and CHASE, Circuit Judges.
*53 CHASE, Circuit Judge.
After an involuntary petition in bankruptcy had been filed in the Southern District of New York against Lilyknit Silk Underwear Company, Inc., the corporation, before adjudication, made an offer in composition that was accepted by a majority of its creditors in number and amount. A minority of the creditors objected. A reference to a special master resulted in a report recommending confirmation of the composition offer which was duly confirmed by the District Court. That order was reversed in this court on appeal. See In re Lilyknit Silk Underwear Co., 64 F.(2d) 404.
The order of confirmation, made September 9, 1932, directed payment to creditors within ten days of composition dividends of 17½ per cent. of their claims in cash, and two notes each of 5 per cent. This was done as ordered, and most of the creditors accepted the dividends. The appellees, however, refused them, and the appeal from the order of confirmation was taken October 4, 1932. No effort was made by the objecting creditors to obtain a stay of the order directing the payment of the dividends in composition pending the appeal. These payments were made in part with funds advanced by a third party, but the remainder came from the bankrupt's estate.
It is now claimed that because the creditors receiving the dividends, or at least a representative number of them, were not made parties to the former appeal, the effect of the final decree therein is not binding upon them. This court held in Re Gottlieb, 262 F. 730, that such creditors need not be made parties. In so far as that decision may be in conflict with Field & Co. v. Wolf (C. C. A.) 120 F. 815, we are committed to our former position, as appears from having already entertained the appeal in this matter without the joinder of such creditors as parties. In re Lilyknit Silk Underwear Co., supra.
Nor is the fact that objecting creditors failed to apply for a stay of the order providing for the payment of composition dividends pending the former appeal of moment now. They might have done so and, if they had, might have secured one. But no one knows whether they would have obtained one or not. Compare Haebler v. Myers, 132 N.Y. 363, 30 N.E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589. While it would have been a wise course to do that, it was wholly unnecessary so far as their right to appeal was concerned. Moreover, the creditors who accepted the dividends were bound to know that those who objected had the right to and might appeal within the time allowed, and they could not assume that such an appeal, if taken, would be fruitless. Besides that, the trustee in bankruptcy is the petitioner here. It acts for all the creditors. It is entitled to have its rights as trustee enforced, and those rights cannot be affected by the failure of objecting creditors to try to have the payments stayed.
So the bald question of whether or not a trustee in bankruptcy may recover the assets of the bankrupt's estate which have been used to pay dividends under a composition order which has been reversed is squarely before us. So far as we have been able to discover there has hitherto been no decision on this precise point. No provision in the Bankruptcy Act (11 USCA) and no General Order (see 11 USCA § 53) expressly covers it.
It has been held that, where a composition has been set aside under section 13 of the Bankruptcy Act (11 USCA § 31), payments in composition already received by creditors need not be returned. In re Roukous (D. C.) 128 F. 645; Ex parte Hamlin, Fed. Cas. No. 5,993. This has been so held on the theory that, as creditors have all been paid pro rata, none is adversely affected, but all may benefit in proportion by additional dividends even though no return of what has been received is required. In theory at least the amounts, if repaid, would be returned to the creditors who had them by virtue of the composition dividends already paid. But payments in composition are not received by creditors as a share of the bankrupt's estate to which the creditor is entitled. They are, on the contrary, the share of the creditor in the fund the bankrupt has provided in accordance with the provisions of the act (section 12 [11 USCA § 30]) relating to compositions by means of which he may redeem the estate from creditor's claims. In re Ballance, 219 F. 537 (C. C. A. 2). When the order confirming the composition was reversed by our former decision, the right of the bankrupt so to redeem his estate became nonexistent. Up to that time it had been, at best, a tentative right only. And the right of creditors to receive and retain any dividends which came from the bankrupt's estate itself had been just as tentative. It too became nonexistent. It became the duty of the trustee to gather in all assets belonging to the estate that they might be administered in accordance with the act. In so far as composition dividends may be traced to the bankrupt's estate as their *54 source, a proper regard for the due administration of the bankruptcy law requires their being put into the hands of the trustee for final disposal in accordance with the act.
That there is no express provision in the law covering the subject need not be fatal to the trustee's effort to bring this about. One of the basic principles which permeates the act is the duty of the trustee to administer all of the bankrupt's estate, which is not exempt, in accordance with the bankruptcy law. In the exercise of a duty imposed by the bankruptcy law, the trustee may invoke such general equitable principles as are applicable. Searle v. Mechanics' Loan & Trust Co. (C. C. A.) 249 F. 942; In re Young (C. C. A.) 294 F. 1. Among them is the power to require restitution of what has been taken by the enforcement of a judgment subsequently reversed. Northwestern Fuel Co. v. Brock, 139 U.S. 216, 11 S. Ct. 523, 35 L. Ed. 151; Bank of United States v. Bank of Washington, 6 Pet. 8, 8 L. Ed. 299; Bank of United States v. Ritchie, 8 Pet. 128, 8 L. Ed. 890; See, also, Haebler v. Myers, supra.
We now make no attempt to go beyond the issues and indicate how the restored fund shall be distributed. Such portion of it as may have been advanced to the bankrupt by a third party to create in part the amount paid in composition dividends may be dealt with as the law requires when, if ever, that question arises.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587192/ | 33 So.3d 39 (2010)
CLEMMONS
v.
STATE.
No. 2D10-733.
District Court of Appeal of Florida, Second District.
April 15, 2010.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587423/ | 944 So.2d 359 (2006)
FLETCHER
v.
STATE.
No. 2D05-2857.
District Court of Appeal of Florida, Second District.
December 1, 2006.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/395156/ | 660 F.2d 696
Ralph Dwayne OWEN, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 80-5465.
United States Court of Appeals,Sixth Circuit.
Argued July 8, 1981.Decided Oct. 1, 1981.
Ralph Dwayne Owen, pro se.
David E. Melcher, Cynthiana, Ky., (Court-appointed), for petitioner-appellant.
Patrick H. Molloy, U. S. Atty., James E. Arehart, Joe Famularo, Asst. U. S. Attys., Lexington, Ky., for respondent-appellee.
Before WEICK, LIVELY and JONES, Circuit Judges.
PER CURIAM.
1
Owen has appealed to this court from an order of the district court entered on October 28, 1980, approving and adopting its Magistrate's Report and dismissing Owen's motion filed under 28 U.S.C. § 2255 to vacate sentence on his pleas of guilty made more than fourteen years previously with the advice of his court appointed attorneys, to two counts of an indictment filed March 8, 1966, charging him and a confederate with committing armed bank robberies on November 23 and December 13, 1965, in violation of 18 U.S.C. § 2113(a) and (d). Owen was convicted on his guilty pleas and sentenced on May 11, 1966 to twenty years imprisonment on each count to be served concurrently and concurrent with sentences on convictions for other offenses one of which was a California sentence of five years to life. Owen did not appeal from his conviction and sentence for the two 1965 bank robberies on his pleas of guilty more than fourteen years ago and has resorted solely to his collateral attack on his armed bank robberies conviction in the present proceedings.
2
In appealing from the denial of his motion to vacate sentence, Owen asserts claims, which in our opinion, are not only stale but also frivolous, namely, that the district judge, in accepting his guilty pleas in 1966 did not comply with Rule 11 of the Federal Rules of Criminal Procedure with respect to determining whether his guilty pleas were voluntary; that the district court erred in not ordering a psychiatric examination which he had requested, but he withdrew the request on the following day when he entered his pleas of guilty; that the two attorneys appointed by the district court to represent him and his co-defendant did not render effective assistance. The appendix discloses clearly that both Owen and his confederate were not novices. They were hardened criminals serving long terms of imprisonment for other offenses, two of which both had escaped when they committed the robberies in issue here.
3
Owen and his newly appointed attorney have offered no explanation as to why Owen did not appeal to this court from his 1966 bank robbery conviction and sentence on his guilty pleas. Had he taken a timely appeal to this court, he could have obtained redress on any meritorious claim and even an adjudication on his present claims which are not meritorious. We are not advised as to why it took Owen more than fourteen years to discover and then seek to collaterally redress the alleged errors of which he now complains.
4
The issues in the present appeal, in our opinion, are controlled by the decision of the Supreme Court in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) in which Justice Stevens wrote the opinion for a unanimous court, and stated, inter alia:
5
In Hill v. United States, 368 U.S. 424, (82 S.Ct. 468, 7 L.Ed.2d 417), the Court was presented with the question whether a collateral attack under § 2255 could be predicated on a violation of Fed.Rule Crim.Proc. 32(a), which gives the defendant the right to make a statement on his own behalf before he is sentenced. The Court rejected the claim, stating:
6
"The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' Bowen v. Johnston, 306 U.S. 19, 27 (59 S.Ct. 442, 446, 83 L.Ed. 455). See Escoe v. Zerbst, 295 U.S. 490 (55 S.Ct. 818, 79 L.Ed. 1566); Johnson v. Zerbst, 304 U.S. 458 (58 S.Ct. 1019, 82 L.Ed. 1461); Walker v. Johnston, 312 U.S. 275 (61 S.Ct. 574, 85 L.Ed. 830); Waley v. Johnston, 316 U.S. 101 (62 S.Ct. 964, 86 L.Ed. 1302)." 368 U.S., at 428 (82 S.Ct. at 471).
7
The reasoning in Hill is equally applicable to a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459 (89 S.Ct. 1166, 22 L.Ed.2d 418), but was not. And there is no basis here for allowing collateral attack "to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (67 S.Ct. 1588, 1590, 91 L.Ed. 1982).
8
Indeed, if anything, this case may be a stronger one for foreclosing collateral relief than the Hill case. For the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.
9
"Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." United States v. Smith (7 Cir.), 440 F.2d 521, 528-529 (Stevens, J., dissenting).
10
* The arraignment, guilty pleas and sentence all took place over a period of two days, May 3 and May 4, 1966, and were conducted by the late Judge Mac Swinford, an able and experienced district judge for the Eastern District of Kentucky. At the request of the defendants, Judge Swinford appointed two able attorneys to represent them as they had no attorney and were indigent. There was no conflict of interest shown or even claimed. Defendant Gove stated that he was the aggressor and had persuaded Owen to join with him in the commission of some of the crimes. In the arraignment proceedings, the two attorneys for the defendants advised the court that both defendants would like to have the court appoint a psychiatrist to examine them. This led to considerable questioning by the court of the two defendants, their appointed attorneys and the United States Attorney as to the necessity therefor.
11
In the questioning, the court read to the defendants and the attorneys the pertinent provisions of 18 U.S.C. § 4244, relating to mental incompetency after arrest and before trial. The court then directed questions to the defendants and their attorneys asking whether they had reasonable cause to believe that the defendants or either of them may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or them or properly to assist in his or their own defense? Do you?
12
The United States attorney answered no. The two attorneys representing the defendants answered no. The court then questioned each of the defendants separately. With respect to Owen, the record discloses the following:
13
MR. WEST: Your honor they probably would like for me to ask the question that you have asked the attorneys; whether or not they feel they are mentally competent. They would like to be asked.
14
THE COURT: All right. Do either of you now at this time have reasonable cause well, I will ask them separately. I'll ask Ralph Dwayne Owen. Ralph, do you have reasonable cause to believe that you, who are a person now charged with an offense against the United States, as set forth in this indictment you know what that is, don't you, you have a copy of it?
15
THE DEFENDANT OWEN: Yes, I have.
16
THE COURT: that is, charging you with committing this armed robbery, do you have any reasonable grounds to believe or cause to believe that you may be now insane or otherwise so mentally incompetent as to be unable to understand the proceeding against you or properly to assist in your own defense? Do you feel that your mind is of such a nature now that you couldn't that you do not understand these charges and you are not mentally competent to assist your lawyers in your own defense?
17
THE DEFENDANT OWEN: I would like to talk to a psychiatrist. I feel that they would be that it would be important to me as well as to the Court, because I was a patient at the California Medical Facility and there is times that I can't control myself, I know this, and I know that the Court would find this out. Just like the District Attorney says, all prisoners do go to California Medical Facility, but yet it is a divided unit and they go there for a period of about 90 days to evaluate them and at that time they are sent over to the other side where they are sent to another institution. And I was in patient status at the California Medical Facility, I found it hard to talk about my the way I felt there
18
THE COURT: Go ahead.
19
THE DEFENDANT OWEN: I don't know, I don't really know myself. I tried to explain to them what I went through at different times.
20
THE COURT: Well, I don't want to debate with you, you understand that. All my business is to try to give you a fair trial. That is what I want to do. The question is, not whether or not at the time you committed the offense that you were under some mental stress or strain, or were so insane or under such a psychotic condition that you could not control yourself, as you say, and thereby might have that as a defense to this charge against you. That's not the question. The question now is, do you feel now presently, it says, that you are so mentally incompetent that you do not understand these charges against you and cannot adequately and purposefully and intelligently assist in your own defense? The question of insanity at the time an offense is committed is a defense, but that is not this question. Do you understand? Do you understand now this charge against you?
21
THE DEFENDANT OWEN: Yes.
22
THE COURT: Do you understand what you are charged with?
23
THE DEFENDANT OWEN: Yes.
24
THE COURT: This indictment?
25
THE DEFENDANT OWEN: Yes, Sir.
26
THE COURT: You are an intelligent man.
THE DEFENDANT OWEN: I know
27
THE COURT: You appear to be. Do you understand the charges in this indictment? You have gone over it with your attorneys, haven't you?
28
THE DEFENDANT OWEN: Yes.
29
THE COURT: Do you feel that you have mind sufficient now to assist in your defense in presenting whatever your defense might be?
30
THE DEFENDANT OWEN: Yeah, I think so.
31
The court then questioned the defendant Gove who testified: "I only say that I think due to the fact that I did commit acts that were insane acts I mean normal people don't do them and which I committed from the time I escaped up until the time I was apprehended, that I think I would like to have I don't know whether I'm competent to stand trial or not, because of the fact that I did commit these acts...."
The court stated:
32
THE COURT: I can commit you for 30 days to an institution and psychiatrists will examine you and determine whether or not you are now competent to understand these charges against you and to assist in your defense; or I can set the case down and permit you at the expense of the United States to employ a psychiatrist of your own, not one of the United States officers, but a psychiatrist of your own at the expense of the United States, to come here and make an examination or to have an examination, whatever it might be, and testify in your behalf, if the Court is of that opinion, not as to your present competence, but as to your competence at the time this alleged offense was committed? Do you see what I mean? Whether or not you were mentally incapable at that time is a defense of insanity.
33
Now, as I say, I can't practice your case for you. I have appointed these gentlemen. They are capable attorneys and I'm going to let you consult with them and see what you want to do. I want you to have everything the law allows you and I propose to see that you have it, but what we are to decide, gentlemen, is whether or not they are to be committed now to have another report and a hearing on their present mental competence or whether or not to continue the case, postpone it for a reasonable time, to let them employ a psychiatrist at government expense to testify as to whether or not they were insane at the time they committed the act within the meaning of the law, if they did commit the act. I'm not saying that they did or didn't. These boys appear to be very intelligent to me. I'm no psychiatrist, but I don't want them to temporaize (sic) with the Court. I don't want them to just delay this thing with the idea of postponing it, because it is just going to be hard on them to have to lie in jail, awaiting trial.
34
I don't suppose you can make bond, can you?
35
THE DEFENDANT GOVE: I'm already serving 23 years in the Atlanta Penitentiary.THE COURT: You are already under sentence?
36
THE DEFENDANT GOVE: Yes, sir, at Atlanta Penitentiary.
37
(Reporter's note: Subsequently, on the same day, to wit, May 3, 1966, the defendants, having conferred further with counsel, came before the Court with their attorneys and the following occurred:)
38
THE COURT: Mr. West, have you discussed this? Ralph, you and Charles, have you discussed this with your attorneys again?
39
THE DEFENDANT GOVE: Yes, sir.
40
THE COURT: What would you like to do?
41
MR. WEST: We would like to waive formal arraignment for each of the defendants and enter a plea of not guilty.
42
MR. SCHMAEDECKE: To both counts, if Your Honor please, count 1 and count 2.
43
THE COURT: Waive formal arraignment to Count 1 and Count 2 for each defendant and enter a plea of not guilty.
44
Let the case be set down for trial, for the 21st day of September. That's the third day of the term. Set it down at this time. In the meantime you will have an opportunity to have psychiatric examination, both by a psychiatrist employed by the defendants and the United States' doctors.
45
Mr. Marshall, you can keep them here as best you can to give them an opportunity.
46
Now Mr. West, I'm going to ask you to reduce this to a motion in writing if you will and bring it up here tomorrow. I'll be here tomorrow and you don't have to do it this afternoon; it's late, but if you will do it in the morning and bring it over here and let's get this down in a little more formal way. Consult the statute on it and see just
47
MR. WEST: Your Honor, from what the marshal said, I didn't how long are we going to have? I may be able to get Doctor Weldon and file this motion and I assume that the burden is upon us to hire a psychiatrist.
48
THE COURT: That's right. The United States will pay for it.
49
MR. WEST: That's right. But now Doctor Weldon may be filled up as far as his appointments are concerned. I have no idea.
50
THE COURT: I thought probably you could call him tomorrow or tonight, and find out.
51
MR. WEST: I will call him tonight or tomorrow morning.
52
THE COURT: You realize that it is not to these defendants' best interests to remain in jail here. The facilities are not to their best interests and it is better I am sure for them to be returned to federal prison than to be held here, if he can make his examination or if he can do that at this time, and then try to have them back here in this district within a reasonable time, some few days possibly before the trial, for any further checkup. That will be a matter that will address itself to him. He will understand that and as I say, I'm not assuming any responsibility to remind you, because I have a great many cases. I'll have to let you make any requests that you feel are appropriate.
53
Now, as far as staying here is concerned that will be a matter which the marshal said he will try to keep them here a few days. Just what that means, I don't know. I suggest you call Doctor Weldon and see just what time he could see them.
54
MR. SCHMAEDECKE: Should we contact the marshal's office?
55
THE COURT: Yes. The marshal will be here. He will be here tomorrow.
56
MR. SCHMAEDECKE: Thank you, Your Honor.
57
THE COURT: Thank you, gentlemen.
58
On the following day, namely, May 4, 1966, the defendants and their attorneys again appeared before the court and announced that they now desired to withdraw their not guilty plea and enter pleas of guilty on both counts. The court addressed both defendants stating that "We went over this pretty thoroughly yesterday and I assume you have discussed it pretty thoroughly with your attorneys."
Addressing Owen, the court inquired:
Now, as to the defendant Owen
59
MR. WEST: Your Honor, Mr. Owen has also talked to both of us about this case and would like to withdraw his plea of not guilty to both counts of the indictment and ask leave of the Court to enter a plea of guilty to both counts.
60
THE COURT: Now, Mr. West, you were appointed to represent both of these defendants.
61
MR. WEST: Yes, sir.
62
THE COURT: I am just trying to keep the record straight on this, in order that the record will show that each of these defendants had two attorneys and there was not a division.
63
Ralph, you have heard the statement of Mr. West. Is that your desire to withdraw your plea of not guilty and enter a plea of guilty?
64
THE DEFENDANT OWEN: Yes, Your Honor.
65
THE COURT: You recall distinctly, I am sure, our discussion here yesterday and the Court explained to you and to your co-defendant your rights in the matter?
66
THE DEFENDANT OWEN: Yes, Your Honor.
67
THE COURT: All right.
68
THE COURT: All right, Ralph, I'll listen to you.
69
Now, you realize there are two cases involved here, one is charged on the 23rd of November and the other on the 13th of December to which you have entered pleas of guilty? You understand that, don't you?
70
THE DEFENDANT OWEN: Yes, Your Honor.
71
THE COURT: There are two different bank robberies involved, both of which involve the use of a deadly weapon, is that right?
72
THE DEFENDANT OWEN: Yes, Your Honor.
73
THE COURT: All right. I'll hear you now if you have anything you want to say.
74
THE DEFENDANT OWEN: Well, I know that I have done a lot of wrong. In fact, I have been doing wrong for a long time, but I do feel that I can make a good life for myself out in the free world and I met this well, I met my wife and she did an awful lot for me. She did change my life, she changed my ways, she understood and helped me a lot and I would I don't know I'm sorry for what I did and I know that I've got a lot of time to do, but I know I can make it when I do get out and make a useful life for myself and my wife.
75
THE COURT: All right. Thank you.
76
In sentencing the defendants, the court said:
77
THE COURT: All right, let the defendants come up, please.
78
Each of you has a very long and serious criminal record, involving crimes of violence, and yet it is important that the Court tell you that there is always an opportunity for parole in the event the parole board should determine that it would be justified; that is, after you have served a third of your sentence you may be eligible for parole. I do not want to commit the Court to any statement that might mislead you. I realize and you realize, I am sure, each of you, that your past records might stand somewhat in your way in that connection. I want to be fair with you and I am sure that you each realize that because you have each been in prison on numerous occasions for various things, Is that not correct?
79
THE DEFENDANT OWEN: Yes.
80
THE COURT: The Court could sentence you here to as much as 50 years, each of you, on these charges to which you have entered pleas of guilty.
81
Do you still are you serving a prison sentence at this time?
82
THE DEFENDANT OWEN: Yes, I believe so.
83
THE COURT: What is that amount of years? Do you know?THE DEFENDANT OWEN: Five to life.
84
THE COURT: Five to life?
85
THE DEFENDANT OWEN: Yes.
86
THE COURT: I'm going to sentence each of you to 20 years in the penitentiary on each count of this indictment, those sentences to run concurrent and to run concurrent with any sentences which you are now serving. I feel that that's fair under all of the circumstances.
87
The record does not disclose whether Gove appealed.
88
It clearly appears from the record that Judge Swinford fully complied with the test of a defendant's competency to stand trial on a criminal charge decided by the Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), which we followed in Pate v. Smith, 637 F.2d 1068, 1070 (6th Cir. 1981). From the answers to the questions propounded by the court, it appears that each defendant had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding as well as factual understanding of the proceedings against him.
89
It is noteworthy that Owens' present appointed attorney in his brief devotes very little to the frivolous insanity defense, but focuses almost entirely on his argument that Rule 11 was violated in the acceptance of the guilty pleas. This argument is specious in view of the decision of the Supreme Court in Timmreck.
II
90
In sum, it appears that Owens had at most only a colorable defense of insanity without an iota of evidence to support it. He asked for the appointment of a psychiatrist so he could talk to him and then withdrew his request the following day when he and his attorneys believed it would be more advantageous to plead guilty. He admitted under oath that he could assist in his defense. He at all times was adequately and fully advised by his two competent appointed attorneys and Judge Swinford as to his rights and as to the penalties he could receive if he was convicted. There was no doubt as to his guilt. He displayed his intelligence in his answers to the court's questions. At this late date, fourteen years after his conviction, he engages in a collateral attack on his conviction hoping to get a new trial, when the government would be disadvantaged and hard pressed to obtain a conviction because of fading memories and death of witnesses and even of the trial judge in this long period of time and he does not deny that he committed the robberies or his other numerous criminal acts. Also, he is still under sentence which he has not served for the commission of other crimes, and he has not been tried for his escape from the California Medical Facility. It would be folly to grant an evidentiary hearing as requested or consume any more of the valuable time of busy judges in such a fruitless undertaking.
91
Owens undoubtedly changed his mind when he withdrew his not guilty plea and entered a plea of guilty, because he believed he would receive a better sentence and ultimate parole. The judge explained to him that he could receive a sentence of fifty years on each count. His sentence was only 20 years and it was concurrent with all of his sentences.
92
It is clear from Timmreck that there was no violation of the constitutional rights of Owen in the proceedings. In a collateral proceeding, the burden of proof was upon the petitioner to establish that his constitutional rights were violated. He offered no proof on the frivolous insanity issue, not even the records of the California facility from which both he and his confederate escaped. In view of the escape made by both defendants, a judge would necessarily be wary of a repeat performance if either were confined for psychiatric examination in another medical facility.
93
The judgment of the district court is affirmed.
94
NATHANIEL R. JONES, Circuit Judge, dissenting.
95
I dissent. I do not believe that this case is controlled by United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), because the question whether a guilty plea is entered voluntarily and intelligently is not an issue which merely concerns compliance with the formalities of Rule 11 of the Federal Rules of Criminal Procedure. I believe that the transcripts at Owen's arraignment raise substantial questions about his ability to enter a knowing and intelligent guilty plea, and I would remand this case for an evidentiary hearing on that issue. If the Government has been prejudiced by Owen's delay in filing this action for post-conviction relief, it could present evidence on that issue at the evidentiary hearing. For these reasons, I would remand this case to the district court. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1737475/ | 548 So. 2d 1250 (1989)
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF WARNER ROBINS, GEORGIA
v.
DELTA TOWERS, LTD., a Limited Partnership.
No. 89-C-1568.
Supreme Court of Louisiana.
October 6, 1989.
Reconsideration Denied November 10, 1989.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587305/ | 33 So. 3d 41 (2010)
HEISLER
v.
STATE.
Nos. 2D09-5764, 2D09-5765.
District Court of Appeal of Florida, Second District.
April 21, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587295/ | 944 So. 2d 346 (2006)
PULLUM
v.
STATE.
No. SC06-895.
Supreme Court of Florida.
October 25, 2006.
Decision without published opinion. Rev. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547305/ | 809 A.2d 199 (2002)
355 N.J. Super. 89
Tina KIERNAN, Plaintiff Respondent,
v.
Thomas KIERNAN, Defendant Appellant.
Superior Court of New Jersey, Appellate Division.
Argued October 7, 2002.
Decided November 14, 2002.
*200 Richard Outhwaite, Springfield, argued the cause for appellant (Elliot H. Gourvitz, attorney; Mr. Outhwaite, of counsel and on the brief).
Judith A. McDermott, Bethesda, MD, argued the cause for respondent (Gerri Gomperts, attorney; Ms. McDermott, on the brief).
Before Judges PETRELLA, BRAITHWAITE[1] and PARKER.
The opinion of the court was delivered by PETRELLA, P.J.A.D.
Defendant Thomas Kiernan appeals from Judge Whitken's refusal to reconsider various matters in a divorce action. The judge refused such reconsideration essentially because Mr. Kiernan's attorney had filed a notice of appeal, and then sought, by motion dated June 14, 2001, and originally returnable on July 20, 2001, to have his motion for reconsideration heard. Although the judge amended the May 30, 2001 Dual Judgment of Divorce based on a mistaken mathematical calculation, he concluded that because the underlying divorce action was on appeal he lacked jurisdiction to hear the reconsideration motion. See R. 2:9-1(a). His oral ruling of September 7 was formalized in a September 28, 2001 order.
We inquired at oral argument and verified that after the reconsideration motion was denied on jurisdictional grounds, defendant did not file a motion in the first appeal (A-5976-00) for a partial remand to allow the trial judge to address the numerous issues raised in the motion for reconsideration. See R. 2:9-1(b). He did file a motion for a remand on an alimony issue on July 30, 2001, in the then underlying divorce appeal[2] which we granted on *201 August 22, 2001. The motion papers for that remand are not in the record of this appeal. Obviously, counsel knew the rules allowed a motion for a temporary remand and utilized it in the first appeal.
Moreover, R. 2:9-1(a) not only states that although the trial court has "continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided," it also contains the following sentence:
The appellate court may at any time entertain a motion for directions to the court or courts or agencies below or to modify or vacate any order made by such courts or agencies or by any judge below.
However, no remand request was made to us under either subsection a or b of R. 2:9-1 regarding defendant's separate reconsideration motion which is the subject of the second appeal (A-919-01). A remand is more likely to be obtained at an early stage of an appeal. The cited rule contemplates jurisdiction in the trial courts after an appeal is filed for enforcement of orders and judgments or other actions that are specifically authorized. We do not find the language of R. 2:9-1(a) ambiguous in any way, as did Carlucci v. Carlucci, 265 N.J.Super. 333, 335-344, 626 A.2d 1124 (Ch.Div.1993).
Defendant broadly argues that the trial court did have jurisdiction to rule upon his reconsideration motion because the areas that he sought reconsideration of assertedly did not relate to the subject of the appeal. If in fact this assertion was correct, and if there was a significant error in the judgment, then there are still ample provisions in the rules governing appeals that allow for a temporary remand. Moreover, the filing of a timely motion for reconsideration before a notice of appeal is filed would toll the time for taking of the appeal until the motion was decided. See R. 2:4-3(e).
Defendant's motions for reconsideration in this case sought to challenge various aspects of the divorce judgment regarding credits, equitable distribution and the like. Simply put, we do not consider appropriate such applications for broad challenges to the judgment in a motion for reconsideration while an appeal is pending without a remand order. The usual challenge to a judgment is by appeal. Indeed, if in fact those provisions of the judgment of divorce were somehow not implicated under the broad penumbra of the alimony, support, equitable distribution or custody provisions because the notice of appeal somehow did not cover it, then defendant could have sought, on motion, to amend the notice of appeal as to such issues.
Principles of judicial economy militate against constant reconsideration motions while an appeal is pending with the concomitant effect of producing additional orders which may be subject to further appeal or cross-appeal by either party. Nor is a motion for reconsideration of a final judgment a device to raise a separate and distinct issue, whether or not it addresses an area not covered by the judgment. Morey & Morey v. Borough of Wildwood Crest, 18 N.J.Tax 335, 341 (App.Div.1999) (court will only hear new information on reconsideration if such information could not have been provided on first application); In re Fleming, 290 N.J.Super. 195, 203, 675 A.2d 655 (App.Div.1996) (if allow rehearing for new issues, then order would be subject to reopening). Such an approach could open up a judgment to endless motions while an appeal is pending, rendering each ruling subject to a new *202 appeal. A case should be tried once to conclusion on all issues.
In this case the judge, on defendant's application, did address simple mathematical errors. A court can do that at any time without even the necessity of a formal motion when such an error is brought to its attention. R. 1:13-1 (clerical mistakes in judgments may be corrected by the court on its own initiative). See McNair v. McNair, 332 N.J.Super. 195, 199, 753 A.2d 147 (App.Div.2000); Ledezma v. A & L Drywall, 254 N.J.Super. 613, 619, 604 A.2d 169 (App.Div.1992).
We reject defendant's reliance on two Family Part cases which skirted the jurisdictional rule, i.e., Carlucci v. Carlucci, supra (265 N.J.Super. at 335-344, 626 A.2d 1124) (trial court's order regarding specific custody disputes, including directing participation in baseball league, does not affect Appellate Division's consideration of judgment concerning issues of custody, visitation, equitable distribution and support), and Morrison v. Morrison, 93 N.J.Super. 96, 102-104, 225 A.2d 19 (Ch. Div.1966) (trial court had jurisdiction to award attorney fees and costs despite pendency of appeal from child custody judgment). Indeed, both cases are distinguishable because they addressed claims which were clearly collateral to and did not affect the child custody issues in the pending appeal and therefore, the trial court exercised jurisdiction. In the present case, defendant raises numerous claims on reconsideration related to credits and equitable distribution. In contrast, the Carlucci trial court only addressed a limited number of issues regarding child custody. Unlike defendant's reconsideration claims, custody orders are always subject to change to protect the best interests of the child. See Borys v. Borys, 76 N.J. 103, 111-124, 386 A.2d 366 (1978) (because custody judgments are based on continuing relationships and always subject to changed conditions, full faith and credit clause does not require a foreign custody degree to be given conclusive effect by sister state). Moreover, Morrison dealt with the discrete issue of counsel fees which had been reserved in the order for judgment. Technically, the matter was interlocutory when appealed. In any event, to the extent Carlucci conflicts with our determination, we disapprove of its ruling.
We are of the view that D'Atria v. D'Atria, 242 N.J.Super. 392, 402-403, 576 A.2d 957 (Ch.Div.1990), correctly outlines the procedural approach. A litigant cannot effectively open up the entire divorce proceedings or revise the judgment while an appeal is pending without having sought from the appellate court a remand with direction to the trial court to allow, if necessary, any changed determination to be incorporated in the pending appeal. Again, judicial economy dictates this result. To the extent Carlucci and Morrison conflict with our determination, we disapprove of their rulings.
Defendant also relies in part on the last sentence of a comment to R. 2:9-1(a), which we mention hereafter. The relevant provisions are quoted herein.
Except to the extent of enforcement and except as otherwise expressly provided for by rule, the ordinary effect of the filing of the notice of appeal is to deprive the court below of jurisdiction to act further in the matter under appeal unless directed to do so by the appellate court. See Manalapan Realty v. Township Committee, 140 N.J. 366, 376, 658 A.2d 1230 (1995); Sturdivant v. General Brass & Machine Corp., 115 N.J.Super. 224, 227, 279 A.2d 110 (App.Div.) certif. denied, 59 N.J. 363, 283 A.2d 107 (1971);.... Clearly then, the trial court does not have jurisdiction pending appeal to entertain a new trial motion. *203 Dinter v. Sears Roebuck & Co., 278 N.J.Super. 521, 527, 651 A.2d 1033 (App. Div.), certif. denied, 140 N.J. 329, 658 A.2d 728 (1995). Nor may it entertain a post-arbitration motion for dismissal. (citation omitted). The trial court does, however, by analogy to R. 1:13-1, have the authority, pending appeal, to correct errors in calculations set forth in a judgment stipulated by the parties. McNair v. McNair, 332 N.J.Super. 195, 199, 753 A.2d 147 (App.Div.2000). Appellate litigants should, however, be aware of their recourse to a motion to the appellate court for a limited remand to the trial court pending the appeal where consideration of a particular issue by the trial court will enable full resolution of the controversy by the appellate court or is necessary to deal with an essential matter implicating the issues on appeal arising after the notice of appeal is filed. (emphasis added) (citation omitted).
[Pressler, Current N.J. Court Rules, comment on R. 2:9-1(a), pp. 609-610 (2003).]
The comment to subparagraph (a) in the 2003 edition ends with the following sentence and a citation to Carlucci:
It should be noted that the trial court's jurisdiction over matters between the litigants not implicated in the appeal is unaffected thereby.
Our disapproval of Carlucci also encompasses our disagreement with a broad interpretation of that comment to R. 2:9-1(a). We find no error in the trial judge's ruling in this case.
Plaintiff filed a protective cross-appeal from the dismissal of her cross-motion in opposition to defendant's motion for reconsideration. The application was filed provisionally in the event that defendant's motion was heard. In light of our determination, we dismiss the cross-appeal.
Affirmed.
NOTES
[1] Judge Braithwaite did not participate in oral argument. However, the parties consented to his participation in the decision.
[2] The notice of appeal (dated June 29, 2001) from various aspects of the final judgment of divorce was filed on July 10, 2001, in docket number A-5976-00. After oral argument we reviewed the docket entries in A-5976-00 and learned of the temporary remand motion. Defendant was thereafter notified by the clerk of the court on January 23, 2002 that his brief in A-5976-00 would not be filed because of deficiencies. He was informed that if not corrected within fifteen days the appeal was subject to dismissal. The clerk's office also inquired about the status of the remand which had previously been granted. Apparently, the appeal in A-5976-00 has now been reinstated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/550292/ | 917 F.2d 42
286 U.S.App.D.C. 328, 1990 O.S.H.D. (CCH) P 29,116
LOCAL UNION 1261, DISTRICT 22, UNITED MINE WORKERS OFAMERICA, Petitioner,v.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, andConsolidation Coal Company, Respondents.
No. 89-1637.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 24, 1990.Decided Oct. 26, 1990.
Michael Dinnerstein, with whom Robert H. Stropp, Jr., was on the brief, for petitioner.
Robert M. Vukas, with whom Henry Chajet and Thad S. Huffman were on the brief, for respondent, Consol. Coal Co., L. Joseph Ferrara, for respondent, Federal Mine Safety and Health Review Com'n, also entered an appearance.
Before WALD, Chief Judge, RUTH BADER GINSBURG and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
1
This case concerns the interpretation of two sentences of the Federal Mine Safety and Health Act, 30 U.S.C. Secs. 801 et seq. (Mine Act), that provide compensation to miners when a mine is closed by a federal withdrawal order. The two prescriptions at issue, contained in section 111 of the Mine Act, 30 U.S.C. Sec. 821, read in key part:
2
If a ... mine is closed by [a federal safety inspector's order], all miners working during the shift when such [withdrawal] order was issued who are idled by such order shall be entitled ... to full compensation by the operator ... for the period they are idled, but for not more than the balance of such shift. If such [withdrawal] order is not terminated prior to the next working shift, all miners on that shift who are idled by such order shall be entitled to full compensation by the operator ... for the period they are idled, but for not more than four hours of such shift.
3
(Sentence numbers added.)
4
Relying on these prescriptions, petitioner Local Union 1261, District 22, United Mine Workers of America (UMW), sought compensation for sixty-two miners from respondent mine operator Consolidation Coal Company (Consol) following Consol's voluntary closure of a mine, for safety reasons, two shifts (just over twelve hours) before the federal inspector's withdrawal order issued. Reversing the administrative law judge's decision, a sharply divided (3-2) Federal Mine Safety and Health Review Commission (Commission or FMSHRC) held that, in the circumstances presented, no compensation was due. Local Union 1261, 11 F.M.S.H.R.C. 1609 (1989).
5
We conclude that the Commission, although incorrect in labeling the statutory text "clear," and less than forthcoming in dealing with FMSHRC precedent, nevertheless construed the statute reasonably. Satisfied that (1) the Commission's construction of the statute is a permissible one, and that (2) FMSHRC adequately stated the practical and policy considerations ultimately motivating its interpretation, we affirm the Commission's decision.
I.
6
UMW and Consol jointly stipulated to the relevant facts. Consol's Emery Mine (in Price, Utah) operates on a continuous basis with three eight hour shifts each day: the daylight shift (7:00 a.m.-3.00 p.m.); the afternoon shift (3:00 p.m.-11:00 p.m.); and the graveyard shift (11:00 p.m.-7:00 a.m.). On April 16, 1986, midway through the afternoon shift, Consol detected rising levels of explosive gas in the mine. Consol thereupon closed the mine at 7:00 p.m., told the afternoon shift workers that the mine would remain idled until further notice, and sent those miners home with four-and-a-half hours of pay for the time worked. Consol also telephoned the miners scheduled to work on the next two shifts (the April 16-17 graveyard shift and the April 17 daylight shift), and similarly informed them that, because of the gas levels, the mine would be idled until further notice. Immediately after closing the mine, Consol notified UMW and the Mine Safety Health Administration (MSHA) of its action.
7
On the morning of April 17, MSHA personnel arrived at the mine and investigated the conditions that had prompted Consol, the evening before, immediately to remove the April 16 afternoon shift workers and close the mine. An MSHA inspector, at 7:14 a.m., issued a withdrawal order pursuant to section 103(k) of the Mine Act, 30 U.S.C. Sec. 813(k), officially closing the mine until MSHA determined that it was safe to reenter.1 MSHA allowed mining to resume on April 20, 1986.
8
UMW claimed compensation from Consol for two sets of miners. Relying on the first sentence of section 111 of the Mine Act, 30 U.S.C. Sec. 821,2 UMW sought eight hours of pay for each of the thirty-six miners scheduled to work the April 17 daylight shift; relying on the second sentence of the same section,3 the union requested four hours of pay for each of the twenty-six miners scheduled to work the April 17 afternoon shift. UMW made no claim for pay on behalf of the miners most immediately affected by the April 16, 7:00 p.m. mine closure, i.e., the afternoon shift workers sent home on April 16 with only four-and-a-half hours of pay, and the workers scheduled for the April 16-17 graveyard shift. Those workers, UMW apparently concedes, cannot be fitted within the terms of section 111, because the withdrawal order did not issue until after the hours scheduled for their shifts.
9
The administrative law judge (ALJ) ruled in favor of UMW. The ALJ reasoned that the MSHA order, not the voluntary shutdown, was the closure that counted, so that compensation was due to the two sets of miners identified by UMW. The Commission disagreed. It held that "to be entitled to [Mine Act section 111 first or second sentence] shift compensation, a miner must either be working during the shift when the [withdrawal] order was issued and have been idled by the order or, if the order is not terminated prior to the next working shift, must be on the next working shift." Local Union 1261, 11 F.M.S.H.R.C. at 1613 (emphasis in original). Because neither set of miners identified by UMW fit this description, the Commission ruled in favor of Consol. Two Commissioners dissented. 11 F.M.S.H.R.C. at 1618. Their reasoning coincided with that of the ALJ, and they pointed to Commission precedent "squarely applicable": Peabody Coal Co., 1 F.M.S.H.R.C. 1785 (1979).
II.
10
We review the Commission's interpretations of the Mine Act under the two-step formulation restated in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the court, like the Commission, must "try to determine Congressional intent, using 'traditional tools of statutory construction.' " NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429 (1987) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 1220-21, 94 L.Ed.2d 434 (1987)). If the intent of Congress is indeed clear, the court, as well as the agency, must give effect to that intent. See Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82. Our decisions call this initial inquiry "Chevron I " analysis. See, e.g., Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C.Cir.1989).
11
If, however, the Mine Act is "silent or ambiguous with respect to the specific issue," Chevron, 467 U.S. at 843, 104 S.Ct. at 2781-82, the court "generally need ask only whether the FMSHRC's interpretation is rational and consistent with the statute, according deference to reasonably defensible constructions of the Mine Act by the Commission." Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C.Cir.1988) (internal quotations and citations omitted). Circuit precedent labels this "Chevron II " analysis. See, e.g., Coal Employment Project, 889 F.2d at 1131.
12
The Commission commenced its analysis at the proper starting place, i.e., the statutory text. FMSHRC placed particular stress on the words "working during the shift" in the first sentence of section 111,4 and concluded that, in context, those words mean actually working when the withdrawal order issues.5 No Emery Mine workers fit that bill because the operator had removed the miners, for safety reasons, over twelve hours earlier.6 It followed, under the Commission's reading, that no miners qualified under the second sentence of section 111; if no miners were actually working when the withdrawal order issued, there could be no "next" shift in line.
13
We agree with the Commission that the words "working during the shift" call up images of miners laboring at their tasks. We do not think, however, that the words are unambiguous in context. If the first rule of statutory construction is "Read," the second rule is "Read On!" The second sentence of section 111 uses the words "next working shift," and Consol concedes that the intended meaning of those words is next shift scheduled to work.7 If "working" means scheduled to work in the second sentence of section 111, "working" could bear that meaning in the first sentence as well. While we do not agree with UMW that "working" must mean "scheduled to work" in both sentences,8 UMW's reading surely meets the plausibility test. Thus, looking to the statutory text itself, we find neither the meaning proffered by the Commission, nor the one pressed by UMW, "plain."The "traditional tools of statutory construction" include not only the words of the statute, but also its relevant legislative history. We set out below the key passage from the Senate Committee Report:
14
[T]he bill provides at Section that miners who are withdrawn from a mine because of the issuance of a withdrawal order shall receive certain compensation during periods of their withdrawal. This provision, drawn from the Coal Act, is not intended to be punitive, but recognizes that miners should not lose pay because of the operator's violations, or because of an imminent danger which was totally outside their control. It is therefore a remedial provision which also provides added incentive for the operator to comply with the law. This provision will also remove any possible inhibition on the inspector in the issuance of closure orders.
15
S.REP. NO. 95-181, 95th Cong., 1st Sess. 46-47, reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 3401, 3446. This language does not lead inexorably to the Commission's interpretation.
16
First, the Report does not focus on the word "working," the term featured by the Commission. Instead, the Report speaks of the miner "withdrawn from a mine because of the issuance of a withdrawal order."9 Second, the Commission deemed it inconsistent with "the clear intent and purpose of the Mine Act," 11 F.M.S.H.R.C. at 1614, to exact section 111 payments from a mine operator like Consol who had conscientiously obeyed the "safety first" edict.10 The Senate Report, however, indicates that Congress intended to provide section 111 compensation, not only when the operator is culpable, but also when the mine has become dangerous without operator fault.
17
Third, while the Commission's reading does offer an incentive to operators to close the mine promptly for safety's sake, without awaiting the inspector's arrival, the ALJ and dissenting Commissioners' position is also compatible with the Senate Report's stress on promoting compliance with the law. For example, if an operator, who has voluntarily closed an unsafe mine, is required to pay up to one and one-half shifts of compensation when an MSHA withdrawal order is issued, the operator will have an enhanced incentive to make the mine safe before the end of those shifts and thus minimize payments to miners who are not producing.
18
Finally, in concluding that the Commission's position is not dictated by the statute's text or legislative history, we observe that it would be unusual for a statute free from ambiguity to be subject to different interpretations by the Commission over time, or, more immediately, by a closely divided panel in the decision under review. In this regard, we agree with the dissenting Commissioners that the Commission majority did not convincingly distinguish Peabody Coal Co., 1 F.M.S.H.R.C. 1785 (1979).
19
In Peabody Coal, miners were initially withdrawn by an order that fell outside the sphere of section 111 compensation. Six days later, while the miners were still out, an "imminent danger" withdrawal order issued. The Commission directed the operator to compensate the miners who would have been at work but for the initial, noncompensable withdrawal order. In so ruling, the Commission expressly rejected the operator's argument that the statute provides first sentence compensation only for miners actually at work when a withdrawal order issues. The Commission said: "The miners normally scheduled to work the ... shift were idled within the meaning of section ... by the ... withdrawal order. Therefore, [they] are entitled to compensation." 1 F.M.S.H.R.C. at 1790 (emphasis added).
20
Either the Commission missed the "plain meaning" of the statute in Peabody Coal, or the meaning is not so plain, and the section 111 first and second prescriptions are subject to more than one plausible interpretation. We think the latter explanation is correct. While the Commission departed from Peabody Coal, both in reasoning and result, and so effectively overruled that decision, FMSHRC ultimately and satisfactorily accounted for its volte-face.
21
Before stating why we are persuaded that the Commission's decision passes muster under Chevron II review, we note that FMSHRC's opinion was less than lucidly arranged, and therefore gave us pause. Portions of the opinion convey the impression that the majority was proceeding along a Chevron I track, and so regarded UMW's compensation request as beyond FMSHRC's authority to entertain. We recognize that "when an agency's decision rests on a supposed mandate by Congress and the agency is later determined to be wrong as to the mandate, a remand may be required for it to exercise its discretion on the issue." General Motors Corp. v. NHTSA, 898 F.2d 165, 171 (D.C.Cir.1990). In this case, however, we discern that the Commission was mindful of "policy and administrative concerns," id. at 172, and wove them into the calculus throughout its opinion. See 11 F.M.S.H.R.C. at 1614 (observing that "[a]part from the plain wording of the statute, there are also practical considerations" justifying the Commission's decision). We therefore conclude that no remand is necessary because FMSHRC "did exercise its discretion in interpreting the statutory scheme in light of its policy judgment and expertise." General Motors Corp., 898 F.2d at 171.
22
Turning to our Chevron II grounds for upholding the Commission's interpretation, we note first that the word "working" indeed can mean "on-the-job in the mine." By attributing that meaning to section 111's first prescription, the Commission reasonably maintains that it is advancing the overriding mine safety aim of Congress. We cannot gainsay the Commission's judgment that its current decision fosters prompt evacuations and discourages operator hesitation pending the arrival of inspectors.
23
Furthermore, as the Senate Committee Report stated, see supra p. 46, Congress provided for compensation, in the event that a withdrawal order terminates work by miners, in part to insulate the mine inspector from miner animus. As the Commission commented:
24
Here, however, the operator unilaterally and voluntarily withdrew its own miners and notified all shifts that the mine would be closed until further notice. Obviously, under such circumstances, no inhibitions would have attached to the inspector's enforcement actions taken twelve hours later when the mine was empty. The need to insulate the inspector from any purported miner animus had by then evaporated.
25
Local Union 1261, 11 F.M.S.H.R.C. at 1615. In addition, the Commission observed that its decision
26
eliminates the roulette wheel effect that results from basing [first sentence] shift compensation solely upon idlement, wherein shift compensation is awarded to those not actually working and is based on the chance timing of the inspection and the order's issuance rather than upon the claimants' actual deprivation of work.
27
Id. at 1616; see supra p. 44.
CONCLUSION
28
In sum, "[a]lthough we disagree with [the Commission's] position that the [Mine Act] unambiguously supports only one permissible interpretation, we do agree, more modestly, that [the Commission's] interpretation is reasonable under controlling principles of statutory interpretation." See New York State Dep't of Social Services v. Bowen, 835 F.2d 360, 361 (D.C.Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2820, 100 L.Ed.2d 922 (1988). The Commission, it is true, has departed from its 1979 Peabody Coal precedent, but we are mindful that "Chevron itself involved an agency about-face on a significant question of statutory construction." See General Am. Transp. Corp. v. ICC, 872 F.2d 1048, 1054 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1112, 107 L.Ed.2d 1019 (1990) (accepting ICC's reversal of a forty-year-old position). The Commission has satisfactorily justified its position in relation to miner safety, the concern of prime importance to Congress.11 We therefore affirm the Commission's decision and deny the petition for review.12
29
It is so ordered.
1
Section 103(k) provides in part: "In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary [of Labor], when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine...."
2
The first sentence prescribes compensation for miners "working during the shift when [a withdrawal] order was issued who are idled by such order ... for the period they are idled, but for not more than the balance of such shift." See supra p. 43
3
If the withdrawal order is not terminated "prior to the next working shift," the second sentence prescribes compensation for "all miners on that shift who are idled by [the] order ... for the period they are idled, but for not more than four hours of such shift." See supra p. 43
4
For the text of the first and second sentences of section 111, see supra p. 43
5
FMSHRC observed that section 111 sets out a "graduated scheme of increasing compensation commensurate with increasingly serious operator conduct." Local Union 1261, 11 F.M.S.H.R.C. at 1613. First and second sentence compensation does not depend upon any showing of culpability on the operator's part. In contrast, the third sentence of section 111 provides up to one week of compensation to miners who are idled because the operator failed to comply with a mandatory safety standard, and the fourth sentence provides double compensation to any miner who performs work in a mine when an MSHA withdrawal order is in effect
6
The Commission specifically noted, and UMW does not dispute, that "this case does not involve an attempt to avoid section 111 liability by withdrawing miners in anticipation of withdrawal action by MSHA." 11 F.M.S.H.R.C. at 1614 n. 6
7
UMW reads the Commission's decision as limiting second sentence compensation to miners who are called back before their shift ends and actually perform some work. See Brief of Petitioner at 12, 15. We do not so comprehend FMSHRC's decision; nor does Consol read it that way, as counsel for Consol clarified in response to the court's inquiry at oral argument
Court: [L]et me give you the case where four hours into the first shift, the withdrawal order issues and it stays in effect for the balance of that shift and for all of the next shift. So people scheduled for the next shift never actually work. What compensation is due under your reading of the statute or the reading you attribute to the Commission?
Counsel: The next shift was scheduled to work and in fact may very well come out to work....
....
Court: [Is it] your interpretation ... that if they show up, even if they never work on that shift because the withdrawal order persists, they will get four hours of pay, although they didn't work at all?
Counsel: Yes, yes.
Court: Then you reject the interpretation that [UMW] attributes to the Commission, which is that unless the withdrawal order ends during the next shift, so they actually work one hour, two hours, they don't get any compensation.
Counsel: No, I reject that.
Were UMW correct concerning the Commission's reading of section 111's second sentence, we would have cause to doubt the reasonableness of FMSHRC's interpretation of the statute.
8
Cf. Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 54 n. 2 (D.C.Cir.1988) (word "inspection" does not inevitably have same meaning in all contexts of Mine Act); Brock v. Peabody Coal Co., 822 F.2d 1134, 1151-52 (D.C.Cir.1987) (concurring opinion) (word "miner" need not have same meaning for all purposes in Mine Act); Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 YALE L.J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.")
9
It would appear that the Senate Committee envisioned among the "withdrawn," not only the miners ordered out of the mine by a withdrawal order, but also those entitled to second or third sentence compensation, although not in the mine at the time the withdrawal order issues. See supra notes 5 and 7
10
Congress declared in section 2 of the Mine Act, 30 U.S.C. Sec. 801, that "the first priority ... of all in the coal ... industry must be the health and safety of its most precious resource--the miner." The section furthermore states that mine operators, with the assistance of the miners, "have the primary responsibility to prevent the existence of [unsafe and unhealthful] conditions and practices" in the mines
11
Compare King Broadcasting Co. v. FCC, 860 F.2d 465, 469-70 (D.C.Cir.1988), where the FCC denied an exemption petition after finding congressional intent clear under Chevron I. The FCC's decision had departed from the Commission's own precedent without providing a reasonable explanation for the change. The court concluded that the statute was ambiguous, and remanded the matter to the FCC for further consideration. Accord American Petroleum Inst. v. EPA, 906 F.2d 729, 740 (D.C.Cir.1990). In the case before us, in contrast, the Commission did supply the essential accounting, and FMSHRC's policy-based explanation stands apart from its "plain meaning" false start
12
In view of our disposition, we do not reach UMW's objection to the ALJ's failure to assess prejudgment interest on the compensation he awarded | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1015974/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1357
JOHN A. MCDONALD; JOHN A. MCDONALD, II,
Plaintiffs - Appellants,
versus
ROBERT FRIEDMAN; RED HOT & BLUE RESTAURANTS,
INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CA-
02-2812-RDB)
Argued: February 2, 2005 Decided: April 19, 2005
Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: W. Stanwood Whiting, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Towson, Maryland, for Appellants. Steven Keith Fedder,
LEITESS, LEITESS & FRIEDBERG, P.C., Baltimore, Maryland, for
Appellees. ON BRIEF: William F. C. Marlow, Jr., MARLOW & WYATT,
Towson, Maryland, for Appellants. Damon L. Krieger, PIPER RUDNICK,
L.L.P., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This is an action for fraud brought under the district court’s
diversity jurisdiction by John A. McDonald and his son John A.
McDonald, II (the “McDonalds”), against Red Hot & Blue Restaurants,
Inc. (“RHB”) and its president, Robert Friedman, arising out of the
failure of a franchising agreement with RHB’s subsidiary, Red Hot
& Blue, Inc. (referred to herein as the “subsidiary” or as “RHB’s
subsidiary”). The district court granted summary judgment to the
defendants, and we affirm.
I.
In March 1997, the McDonalds entered into a written franchise
agreement with RHB’s subsidiary to operate a restaurant franchise
in Morgantown, West Virginia. Under the agreement, the McDonalds
paid the subsidiary an initial, non-refundable franchise fee of
$25,000 and agreed to pay royalties based on a percentage of their
gross sales. The agreement, which contained an integration clause
and a “time is of the essence” provision, called for the McDonalds
to construct the facility and begin operation within twelve
months.1 The agreement also required the McDonalds to submit their
site proposals in writing. The McDonalds submitted one written
proposal and RHB’s subsidiary approved it on July 9, 1999.
1
The agreement provided for a one-year limitations period for
all claims arising out of the agreement or the relationship of the
parties.
2
However, due to some problems with that site, the McDonalds did not
open a franchise at the approved location. Although the McDonalds
claim they sought to identify alternative sites, they did not make
any further written proposals. On August 23, 2000, nearly three
and a half years after the execution of the franchise agreement,
Friedman sent the McDonalds a letter noting that the McDonalds had
failed to open a franchise restaurant as the agreement required and
indicating RHB’s desire to bring its business relationship with
them to an “amicable end.” Although not required under the
agreement, the letter proposed to refund $5,000 of the initial
$25,000 franchise fee. The McDonalds rejected the offer, and on
October 30, 2000, Friedman terminated the franchise agreement
because the McDonalds had failed to comply with its express terms.
Six months later, in June 2001, the McDonalds’ counsel
notified RHB of the sale at public auction of used restaurant
equipment that the McDonalds had purchased “as is” from a third
party in 1998 for $115,000. The letter referred to the “recent
wrongful termination of their franchise” and alleged that the
McDonalds “were defrauded into not only purchasing the equipment
but entering into the franchise agreement in the first instance.”
The McDonalds sold the equipment at public auction for less than
$10,000.
The McDonalds filed this action in July 2002, in the Circuit
Court for Baltimore County, Maryland. Rather than sue the
3
franchisor, RHB’s subsidiary, for breach of the franchise
agreement, the McDonalds sued RHB and Friedman, alleging two counts
of fraud.2 On the first count, the McDonalds essentially claimed
that the defendants fraudulently induced them to enter into a
franchise agreement that they never intended to honor. The
McDonalds claimed that Friedman orally represented that RHB’s
subsidiary would approve site selections in other locations,
including Maryland, and that he promised the McDonalds “all the
time they needed” to find a restaurant site. They claimed that the
defendants did not honor these oral inducements or intend to at the
time Friedman gave them. On the second count, the McDonalds
claimed that the defendants intentionally misrepresented the value
of the used restaurant equipment the McDonalds purchased from a
former franchisee. The defendants removed this case to the
district court. Following discovery, the court found that the
McDonalds’ evidence was insufficient to establish reasonable
reliance, an essential element of their fraud claims, and entered
summary judgment for the defendants.
II.
We review a district court’s award of summary judgment de
novo. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). After
2
As the district court correctly noted, the McDonalds could not
raise a breach of contract claim because the franchise agreement’s
one-year limitations period had passed.
4
careful consideration of the parties’ briefs and oral argument, the
record, and the relevant legal authorities, we conclude that the
district court properly granted summary judgment to defendants.
Accordingly, we affirm essentially on the reasoning of the District
Court. McDonald v. Friedman, Case No. RDB-02-2812 (D. Md. Feb. 3,
2004). Our review of the record also convinces us that there is
insufficient evidence from which a jury could conclude that the
defendants made material misrepresentations. See Sass v. Andrew,
832 A.2d 247, 256 (Md. Ct. Spec. App. 2003)(noting that “fraud or
fraudulent inducement means that a party has been led to enter into
an agreement...as a result of deceit.”)
The McDonalds’ theory as to their claim of fraudulent
inducement can be reduced to this: the failure of RHB’s subsidiary
to revise the express terms of the contract as to the franchise
location and its refusal to extend indefinitely the “time is of the
essence” provision is evidence that the defendants never intended
to honor the agreement. This theory is untenable. The
franchisor’s ultimate reliance on the express terms of the contract
certainly cannot be evidence of fraud. Indeed, the argument stands
logic on its head. The McDonalds cannot breach their unequivocal
written promise to begin franchise operations within twelve months
and then cite the franchisor’s reliance on the unequivocal, clearly
understandable provisions of its written franchise agreement as
their evidence of fraud.
5
The McDonalds’ theory and evidence on the second claim fare no
better. The McDonalds inspected and purchased “as is, where is”
used restaurant equipment from a third party, a former franchisee.
They complain that defendants represented that the equipment was a
“good deal” but that years later they were able to resell it for
only a fraction of the purchase price. There is no evidence that
the price they paid for the equipment was inflated or that the
defendants had any financial stake in the sale of the equipment.
In essence, their proof of fraud seems to boil down to nothing more
than their inability to sell the equipment years later for a price
close to the price they paid for it. There is simply no evidence
showing that defendants misrepresented the value of the equipment.
Furthermore, even if the McDonalds had produced evidence showing
that the purchase price was inflated, we would still find no
evidence of any material misrepresentation on the part of the
defendants. See First Union Nat’l Bank v. Steele Software Syst.
Inc., 838 A.2d 404,442 (Md. Ct. Spec. App. 2003) (noting that “a
representation which merely amounts to a statement of opinion,
judgment, probability or expectation, or is vague and indefinite in
its nature and terms” is not a material misrepresentation).
III.
We find that the district court appropriately considered and
addressed this matter. In addition, we find no evidence from
6
which a jury could find that the defendants made material
misrepresentations and therefore affirm.
AFFIRMED
7 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547291/ | 159 B.R. 695 (1993)
In re ONE TIMES SQUARE ASSOCIATES LIMITED PARTNERSHIP, Debtor.
Bankruptcy No. 92 B 41471 (CB).
United States Bankruptcy Court, S.D. New York.
October 15, 1993.
*696 *697 *698 Shaw, Licitra, Parente, Esernio & Schwartz, P.C., Garden City, NY By J. Stanley Shaw, Craig A. Damast and Barbara L. Weisberg, for debtor.
LeBoeuf, Lamb, Leiby & MacRae, New York, NY By John S. Kinzey, John P. Campo, Ira A. Reid and Timothy W. Walsh, for Banque Nationale de Paris.
MEMORANDUM OF DECISION ON CONFIRMATION OF THE DEBTOR'S PLAN OF REORGANIZATION
CORNELIUS BLACKSHEAR, Bankruptcy Judge.
INTRODUCTION
The matter before this Court is confirmation of the Plan of Reorganization (the "Plan"), filed by One Times Square Limited Partnership (the "Debtor") in the One Times Square Limited Partnership Chapter 11 Case. As is more fully explained below, Banque Arabe et Internationale d'Investissement[1] (the "Bank") has filed four primary objections to confirmation of the Plan.
First, the Bank argues that the Plan improperly classifies claims for the sole purpose of manipulating the voting, to ensure at least one impaired class accepts the Plan. The Bank asserts that the separate classification of unsecured claims into Classes 5 and 6 is improper and violates sections 1122(a) and 1129(a)(1) of the Bankruptcy Code (the "Code")[2].
The Bank's second objection is that the Plan fails to provide the Bank with "fair and equitable" treatment with respect to its secured claim, because the Plan does not provide the Bank with a present value on its secured claim, equal to or greater *699 than the $19,000,000 stipulated value. Thus, the Plan violates section 1129(b)(2)(A)(i)(II) of the Code[3].
The Bank's third objection is that the Plan violates the absolute priority rule, as codified in section 1129(b)(2)(B)(ii) of the Code[4] because it does not provide the Bank with fair and equitable treatment with respect to its unsecured claim. The Bank argues it would not be paid the full present value of its claim while the junior Class 8 claimants are permitted to retain their prepetition interests. Lastly, the Bank maintains that the Plan is not feasible as required by section 1129(a)(11) of the Code[5].
For the following reasons this Court holds that the Debtor's Plan cannot be confirmed.[6]
BACKGROUND
On October 17, 1991, the Bank began foreclosure proceedings against the Debtor in New York State Supreme Court. The Debtor's single asset is the building and real property located at One Times Square ("OTS"), New York City. OTS is encumbered by the Bank's mortgage and security interest in all rents, profits, proceeds and contractual rights arising out of OTS, as set forth in the Agreement of Spreader, Consolidation and Modification of Mortgage and the Amended and Consolidated Mortgage Note executed between the Bank and the Debtor on March 14, 1989.
On March 11, 1992, the Debtor filed its Chapter 11 petition. As of the petition date, the Debtor owed the Bank $30,045,311.18.
On April 28, 1992, the Debtor moved this Court, by separate motions, for authorization to reject certain executory contracts (the "signage agreements" or "contracts") between the Debtor and Spectacolor, Inc. ("Spectacolor"), and the Debtor and Van Wagner Communications, Inc. ("Van Wagner"). Spectacolor and Van Wagner are sign management companies, licensed to sell advertisements on the facades of OTS. The Debtor's rejection of the current Van Wagner and Spectacolor agreements would result in damage claims totalling $3,000,000.
On June 8, 1992, the Debtor and the Bank entered into a stipulation fixing the value of OTS. The parties agreed that for purposes of section 506(a) of the Bankruptcy Code (the "Code"), the value of OTS, as of the filing date, was $19,000,000. The Bank did not move before this Court for treatment of its entire claim as secured, pursuant to section 1111(b)(2) of the Code[7]. Therefore, the Bank has a secured claim of *700 $19,000,000 and an unsecured deficiency claim of approximately $11,050,000.
On July 15, 1992, the Debtor filed its Disclosure Statement and Plan of Reorganization. The Disclosure Statement was approved by order of this Court dated September 30, 1992.
On July 17, 1992, the Debtor and the Bank entered a stipulation approved by this Court which, inter alia, modified the automatic stay only so far as to permit the Bank to continue foreclosure proceedings in New York State Supreme Court to judgment. The stipulation required, however, that if the Bank sought relief from the stay pursuant to section 362(d) of the Code in order to sell any property, it would have to return to the Bankruptcy Court. The Bank continued the foreclosure proceedings and on August 6, 1992, the New York State Supreme Court granted summary judgment of foreclosure in favor of the Bank against the Debtor and Spectacolor. On August 20, 1992, the New York State Supreme Court also granted summary judgment of foreclosure in favor of the Bank against the Debtor and Van Wagner. On January 8, 1993, the New York State Supreme Court granted a judgment of foreclosure and sale in favor of the Bank. The judgment was entered on April 7, 1993. The Bank now seeks relief from the automatic stay pursuant to section 362(d) in order to proceed with a foreclosure sale.
On November 9, 1992, the Debtor executed separate stipulations with Spectacolor and Van Wagner (the "November 9 Stipulations"). The parties agreed that the signage agreements between the Debtor and each party would be deemed rejected contingent upon, inter alia, this Court's approval and confirmation of the Debtor's Plan of Reorganization pursuant to section 1129(b) of the Code. The Van Wagner stipulation, inter alia, obligated Van Wagner to contribute up to $720,000 to the Debtor, for the Debtor's use in funding the Plan.
Contemporaneously, the Debtor negotiated new signage agreements with Spectacolor and Van Wagner which, unlike the existing agreements between the parties, provide the Debtor with a greater percentage of the income generated from the signage. The November 9 Stipulations expressly conditioned approval of the new signage agreements upon a vote by Van Wagner and Spectacolor in favor of the Plan. The approval of the November 9 Stipulations is pending before this Court.
The Plan contemplates eight classes of creditors. They are:
Class 1, which includes all administrative priority claims. The Debtor estimates these claims will total approximately $300,000 as of the effective date of the Plan;
Class 2, which includes priority claims other than administrative or tax claims (there are no claims in this class);
Class 3, which includes all priority tax claims (there are no claims in this class);
Class 4, which includes the Bank's allowed secured claim of $19,000,000;
Class 5, which includes the allowed unsecured claims of Spectacolor and Van Wagner, which arise from the Debtor's anticipated rejection of the existing executory contracts, totalling approximately $3,000,000;
Class 6, which includes general unsecured claims, aggregating approximately $11,250,000. This class consists of the Bank's deficiency claim of approximately $11,050,000 and the claims of the small trade vendors which aggregate approximately $202,860;
Class 7, which includes the allowed claims of certain principals of the Debtor for commissions from the sale of new signage on OTS; and
Class 8, which includes the interests of the limited partners of OTS.
Under the proposed Plan, the claims in Classes 1, 2, and 3 will be paid in full pursuant to section 1129(a)(9)(A) of the *701 Code[8], on or before the effective date of the Plan and are, therefore, unimpaired.
Under the proposed Plan, the Debtor will pay the Bank's Class 4 allowed, secured claim of $19,000,000 with deferred cash payments over a ten (10) year period, based upon a thirty (30) year amortization rate, with a balloon payment at the end of the tenth year. The Debtor proposes to make monthly payments of principal and interest at either a fixed LIBOR[9] rate plus 4%, or a floating LIBOR rate plus 1.75%, equalling, approximately, $1,517,000 annually, or $15,169,000 over the life of the Plan. Further, the Debtor anticipates making additional principal payments of $3,870,000 during the life of the Plan, and that the final balloon payment would equal, approximately, $11,841,000. Thus, the Plan proposes that the payments to the Bank will total, approximately, $30,880,000.
Van Wagner and Spectacolor, the Class 5 claimants, are to be paid 2.50% of the amounts of their claims equalling $75,000, without interest, in 11 equal installments. The first payment is to be made from a cash contribution, by the Debtor to the estate, on the effective date of the Plan. The ten (10) subsequent installments are to be made on a yearly basis.
The Plan proposes to pay the Class 6 claimants 7.50% of their allowed claims, without interest, over a five (5) year period in equal installments. The first payment is to be made from a cash contribution, by the Debtor to the estate, on the effective date of the Plan. The five (5) subsequent payments are to be made on a yearly basis. Therefore, the Bank will be paid $828,398.18 on its deficiency claim, and the small trade vendors will receive $15,220.50.
The Class 7 claims will not, by consent of their holders, be paid under the Plan.
The Class 8 claimants, the Debtor's limited partners, will retain their interests in the Debtor, in consideration for their cash contributions to the Plan. Their contributions include $1,590,000 in cash on or before the effective date, $240,000 of which is to be received by the Debtor from Van Wagner, pursuant to the Van Wagner stipulation. An additional $807,000 will be contributed by the limited partners, $480,000 of which will be received by the Debtor from Van Wagner, if needed, pursuant to the Van Wagner stipulation, on the first and second anniversaries of the effective date of the Plan. The total, potential contribution by the limited partners would equal approximately $2,397,000.
The impaired classes entitled to vote on the Plan are Classes 4, 5, and 6. Classes 4 and 6 voted to reject the Plan, pursuant to Bankruptcy Rule 3018(d)[10]. Class 5 voted in favor of the Plan. Therefore, the Debtor is seeking confirmation of the Plan pursuant to section 1129(b) of the Code or what is referred to in the vernacular as "cram down"[11].
DISCUSSION
There is a philosophy of strict statutory construction which indicates that judges should give deference to the plain meaning of a statute. In other words, the judge *702 should not engage in judicial legislation. This Court adheres to that philosophy and will continue to do so in the future. However, this does not mean that a judge should become an automaton who can be easily replaced, at a reduced cost, by installing a computer on the bench. If Congress had intended such a result, they would not have enacted 11 U.S.C. 105[12]. Nor would they have inserted language throughout the Code such as "including" or "as the court for cause may order".
Congress enacted 11 U.S.C. 105 because they knew that they could not envision all matters dealing with a bankruptcy court or the creativity of attorneys. However, this Court is of the opinion that 11 U.S.C. 105 should be used sparingly and then only to supplement the Bankruptcy Code, not supplant the Code.
1) CLASSIFICATION OF CLAIMS
As a preliminary matter, this Court determines that the November 9, 1993 stipulations between the Debtor and Spectacolor and the Debtor and Van Wagner are hereby approved.[13] By approval of the foregoing stipulations, the former signage agreements are rejected, thereby creating the class of unsecured claims. The Plan proposes to classify the Van Wagner and Spectacolor claims together, separate from the other unsecured claims, and to pay 2.50% of the amount of these claims, without interest, over the life of the Plan. The Debtor has, in effect, created an unsecured, impaired, voting class[14] in order to confirm the Plan.
Bearing the preceding in mind, we will turn to the "unique" issues concerning the classification of claims, within this Chapter 11 Plan of Reorganization. Section 1129(a)(1) provides that a Chapter 11 Plan of Reorganization will be confirmed only if the plan complies with all of the applicable sections of the Code. Section 1123(a)(1) provides that the plan must "designate, subject to section 1122 of this title, classes of claims other than claims of a kind specified in sections 507(a)(1), 507(a)(2), or 507(a)(7) of this title, and classes of interest."
In most single-asset real estate reorganizations the classification dispute concerns the classification of a creditor's deficiency claim apart from the other general unsecured claims. See e.g., In re 104 Limited, 160 B.R. 202 (Bankr.S.D.Fla.1993); In re D & W Realty Corporation, 156 B.R. 140 (Bankr.S.D.N.Y.1993); In re 500 Fifth Ave. Associates, 148 B.R. 1010 (Bankr.S.D.N.Y. 1993), aff'd, No. Civ. 844, 1993 WL 316183 (May 21, 1993) (Freeh, U.S.D.J.) (In re 500 Fifth Ave.). Here, the Plan classifies the Bank's deficiency claim with most of the other unsecured claims. The issue, therefore, is whether the classification of the Van Wagner and Spectacolor claims separately from the other unsecured claims is permissible.
The Bank claims that the separate classification of most unsecured claims, including the Bank's deficiency claim, into Class 6, and the unsecured signage rejection claims into Class 5, is improper and violates section 1122(a) the Code. The classification scheme, so argues the Bank, serves only to manipulate voting on the Plan to ensure that at least one class votes in favor of the Plan as required by section 1129(a)(10). *703 Thus confirmation of the Plan would allow the Debtor to cram down the Plan over the Bank's dissenting vote.
Generally, unsecured creditors are claimants of equal rank, entitled to share, pro rata, in the values remaining after the payment of secured and priority claims. In re 266 Washington Associates, 141 B.R. 275, 282 (Bankr.E.D.N.Y.1992), aff'd, 266 Washington Associates v. Citibank, 147 B.R. 827 (E.D.N.Y.1992). Unsecured creditors will ordinarily comprise one class, whether trade, tort, publicly held debt or a deficiency of a secured creditor. In re Pine Lake Village Apartment Co., 19 B.R. 819, 830 (Bankr.S.D.N.Y.1982) (Quoting, 3 Norton Bankr.L. & Prac., § 60.05), reh'g denied, 21 B.R. 478 (Bankr. S.D.N.Y.1982).
A broad reading of section 1122(a) does not, however, require all similarly situated claims to be classified together. The statute on its face merely requires that claims classified together be "substantially similar". 11 U.S.C. § 1122(a). Thus, a debtor is allowed some discretion when classifying unsecured claims. In re Bryson Properties, XVIII, 961 F.2d 496, 502 (4th Cir.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 191, 121 L. Ed. 2d 134 (1992) ("In re Bryson"); In re Greystone III Joint Venture, 995 F.2d 1274, 1278 (5th Cir.1991) ("In re Greystone"); In re 500 Fifth Ave., 148 B.R. at 1018; cf., In re Mastercraft Record Plating, Inc., 32 B.R. 106, 108 (Bankr.S.D.N.Y.1983), rev'd on other grounds, 39 B.R. 654 (S.D.N.Y.1984).
Bankruptcy courts and courts of appeal that have reached the issue, generally hold to one maxim: "Thou shalt not classify similar claims differently in order to gerrymander an affirmative vote on a reorganization plan . . . Classification of `substantially similar' claims in different classes . . . may only be undertaken for reasons independent of the debtor's motivation to secure the vote of an impaired, assenting class of claims." In re Greystone, 995 F.2d at 1279; In re U.S. Truck Co., 800 F.2d 581 (6th Cir.1986); In re 500 Fifth Ave., 148 B.R. at 1019 (Bankr. S.D.N.Y.1993). The separate classification of substantially similar unsecured claims, therefore, will be allowed only when there is a reasonable basis for doing so or, in other words, when the decision to separately classify does not offend one's sensibility of due process and fair play. John Hancock Mutual Life Insurance Company v. Route 37 Business Park Associates, 987 F.2d 154, 158 (3rd Cir.1993); In re Jersey City Medical Center, 817 F.2d 1055, 1060 (3d Cir.1987); Teamsters Nat'l Freight Indus. Negotiating Comm. v. U.S. Truck Co. (In re U.S. Truck Co.), 800 F.2d 581, 586 (6th Cir.1986); In re Drexel Burnham Lambert Group Inc., 138 B.R. 723, 757 (Bankr.S.D.N.Y.1992).
The Debtor contends that the separate classification of the Van Wagner and Spectacolor claims is permissible due to the uniqueness of the claims, interests, and objectives of Van Wagner and Spectacolor, as compared to ordinary general unsecured creditors. The Debtor claims that the classifications were made independent of any motivation to gerrymander an impaired assenting class.
The Debtor errs, however, in its interpretation of when an unsecured claim may permissibly occupy a class separate from other unsecured claims. Generally, claims resulting from the rejection of executory contracts are legally similar to general unsecured claims. See, 5 Collier on Bankruptcy ¶ 1122.03[4], at 1122-11 (Lawrence P. King et al., eds., 15th ed. 1993). It therefore follows that claims can be classified separately only "for `reasons independent of the debtor's motivation to secure the vote of an impaired assenting class of claims.'" In re Lumber Exchange Bldg. Ltd. Partnership, 968 F.2d 647, 649 (8th Cir.1992) (quoting In re Greystone, 948 F.2d 134, 139 (5th Cir.1991). However, the uniqueness of the underlying legal nature of a creditor's claim as it relates to the assets of a debtor is an independent reason for which a court may permit separate classification. In re AOV Industries, Inc., 792 F.2d 1140, 1150-1151 (D.C.Cir.1986).
For instance, In re U.S. Truck Co., the Sixth Circuit Court of Appeals affirmed the *704 District Court's finding that the separate classification scheme proposed by the debtor, U.S. Truck Co., an interstate trucking firm, was proper. Specifically, the Court of Appeals held that the claim of the Teamsters National Freight Industry Negotiating Committee (the "Teamsters Committee") was unique because the union has a "noncreditor interest" it might vote based on the plan's effect on "its members in the ongoing employment relationship" rather than on the plan's treatment of it as a creditor. In re U.S. Truck Co., 800 F.2d 581, 587 (6th Cir.1986). In addition, the Sixth Circuit affirmed the District Court's findings that the Debtor's separate classification scheme was proper because (1) the employees represented by the Teamsters Committee have a unique continued interest in the ongoing business of the debtor (2) the mechanics of the Teamsters Committee's claim differ substantially from those of the other class which also contained claims arising from the rejection of executory contracts; and (3) the Teamsters Committee's claim is likely to become part of the agenda of future collective bargaining sessions between the union and the reorganized company. Id. at 584. Finally, the Court of Appeals found that permitting separate classification of the Committee's claim did not automatically result in adoption of the Plan. Id. at 587.
Unlike the Committee in In re U.S. Truck Co., the Debtor has provided no probative basis for separately classifying the Van Wagner and Spectacolor claims, other than to create an impaired class for voting purposes. Here, the claims of Van Wagner and Spectacolor result from the proposed rejection of the current signage agreements and are therefore properly characterized as general unsecured creditors. However, neither the nature of this creditor's business, the nature of the debtor's assets or the mechanics of the creditor's claim sufficiently justifies separate classification. In re UNR Industries, Inc., 143 B.R. 506 (Bankr.N.D.Ill.1992); In re 266 Washington Associates, 141 B.R. at 286. Additionally, the interests are neither unique nor greater than any other unsecured creditor in Class 6. The fact that Van Wagner and Spectacolor are willing to enter into another signage contract with the Debtor if the Plan were to be confirmed further belies the uniqueness of their unsecured claim.
At trial, during cross examination by the Bank's counsel, Arthur Nevid, property manager for the Debtor, admitted that the Debtor separately classified Class 5 claims in order to gerrymander the vote but provided no reasonable basis for having done so:
Question: You participated in the formulation of the Debtor's plan, right?
Mr. Nevid: Correct.
Question: You are familiar with the plan?
Mr. Nevid: Yes.
Question: Am I correct that the plan contemplates separate classification of the signage rejection claims, is that correct?
Mr. Nevid: Yes.
Question: And the other unsecureds?
Mr. Nevid: Yes.
Question: Can you tell us why that's the case?
Mr. Nevid: We were advised by counsel that we were able to reject those contracts, rejecting those contracts would create them as creditors and that would enhance that would enable us to have a plan that would be confirmable.
Hrg.Tr. at 394 1. 1.20 396 1. 1.16.
Neither the testimony at trial, nor the documents submitted, convince this Court that the rejection of the Van Wagner and Spectacolor contracts, and their separate classification into Class 5, is necessary to the Debtor. Rather than reject the current signage agreements, the Debtor could have renegotiated the current contracts and included the new provisions in the modified contracts. The Debtor could then have assumed the modified contracts. This Court finds that the Debtor's assumption of the modified contracts would likely achieve the same economic goals as that which underlies the Debtor's arbitrary classification *705 scheme, i.e., rejection of the current signage agreements, creation of Class 5, and the execution of the new agreements proposed in the Van Wagner and Spectacolor stipulations.
Mr. Nevid, also at trial, admitted that the Debtor made no attempt to renegotiate contract terms with Van Wagner and Spectacolor:
The Court: Since you gave it to the signage people . . . on a take it or leave it basis, could you not have reached this agreement without a rejection of the executory contracts?
Mr. Nevid: I was advised by
The Court: I know what you were advised you had the legal right to do, and I think everybody is in accord with that; but you also had the right, . . . to agree to a modification of your agreement without a rejection of the existing contract.
Mr. Nevid: Well, Your Honor, two things. Number one, we were advised . . . that we can reject . . .
The Court: I have no problem with that.
Mr. Nevid: Okay, but from a practical standpoint, as a layman not as an attorney, certainly not as a bankruptcy attorney, it didn't make sense to me. Renegotiation, per se, didn't seem like a possibility because we would be renegotiating in vain because we would end up they would be foreclosed upon, we would be foreclosed upon, it wouldn't serve any purpose. We didn't have many alternatives, we had to reject
The Court: In order to put them in a separate class?
Mr. Nevid: (Continuing) to make the plan feasible.
. . .
The Court: My question is, could you have reached that agreement to modify the original agreement without rejecting the previous agreement?
Mr. Nevid: It was never considered. I don't know if we could have.
The Court: Why wasn't it considered?
Mr. Nevid: It was explained to me by counsel that the contracts, they were rejectable and they had to be rejected, period. Those are my marching orders.
Hrg. Tr. at 407 1. 1.4 410 1. 1.8.
Since creation of Class 5 serves no legitimate purpose in the financial restructuring of the Debtor, this Court finds that the purpose of creating Class 5 was solely to create a separate, non-insider, impaired class guaranteed to accept the Plan. The lease rejection claimants and all other unsecured claimants have the same legal relationship with the Debtor, that of general unsecured creditors. The legal nature of the rejection claims are not unique and separate classification is not justified by any sound business reason. Therefore, this Court finds that the Debtor's Plan of Reorganization violates sections 1122(a) and 1129(a)(1) of the Code.
2) CRAM DOWN AND THE TREATMENT OF THE BANK'S SECURED CLAIM UNDER THE PLAN
Assuming, arguendo, this Court were to find the classification scheme proposed in the Plan permissible, then it would be necessary for this Court to address the other objections raised by the Bank. The Bank's second objection is that the Plan fails to provide the Bank with "fair and equitable" treatment with respect to its secured claim, because the Plan does not provide the Bank with a present value on its secured claim, equal to or greater than the $19,000,000 stipulated value. Thus, the Bank argues that the Plan violates section 1129(b)(2)(A)(i)(II) of the Code.
Confirmation of a plan of reorganization requires that the plan be accepted by all impaired classes of claims. See 11 U.S.C. § 1129(a)(8) (1991). When an impaired class rejects the plan, the court may nevertheless confirm over the objection of impaired classes provided three criteria are met: (1) the plan does not discriminate unfairly, (2) the plan is fair and equitable with respect to each impaired class of claims and (3) the thirteen conditions precedent to confirmation contained in section *706 1129(a) are satisfied. 11 U.S.C. § 1129(b)(1) (1991).
The Bank has voted both its Class 4 and Class 6 impaired claims to reject the Plan. Therefore, the Plan cannot be confirmed unless the Debtor can demonstrate that the Plan does not violate the cram down provisions of section 1129(b).
To satisfy the "fair and equitable" requirement with respect to a secured claim, the claimholder: (1) retains its lien; and (2) receives "deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder's interest in the estate's interest in such property." 11 U.S.C. § 1129(b)(2)(A)(i)(I)-(II) (1991); In re Bryson, 961 F.2d at 500. The facts of this case do not require an analysis of the first issue. Applying the second requirement, the secured creditor must retain its liens on the property and the deferred payments must be discounted at an interest rate which is sufficient to compensate the creditor for the time value of money. In re Bryson, 961 F.2d at 500.
Although the Code does not expressly provide how interest rates should be computed, this Court agrees with the courts that follow the rule articulated in Collier. Accordingly, we hold that the proper interest rate is the current market rate for loans which are similar in term, quality of security, and risk of repayment or financial condition of the borrower. 5 Collier on Bankruptcy, ¶ 1129.03[f][i]; see, In re Bryson, 961 F.2d at 500; In re Monnier Bros., 755 F.2d 1336, 1339 (8th Cir.1985).
The Bank argues, and this Court agrees, that the interest rates contemplated by the Plan do not reasonably reflect the potential risks to be borne by the Bank. Based upon the evidence adduced at trial, the Debtor cannot obtain a loan for a 100% loan-to-value ratio under the terms it is proposing under the Plan. Simply put, a comparable loan is not available in the market place.
Because the interest rates the Debtor proposes do not approach the range of prevailing market rates for loans of comparable risk and duration, the payments to the Bank will not yield a present value of $19 million. Thus, the Debtor has failed to propose a Plan which is "fair and equitable" to the Bank and, therefore, the Debtor's Plan violates section 1129(b)(2)(A)(i)(II) of the Code.
3) SECTION 1129(b)(2)(B)(ii) THE ABSOLUTE PRIORITY RULE AND THE "NEW VALUE" EXCEPTION
The Bank argues that the Plan violates the absolute priority rule because the holders of Class 8 interests, the Debtor's limited partners, will retain their interests, without dilution of their pre-petition equity shares, while the Class 6 unsecured creditors will be paid only 7½% of their allowed secured claims, over five (5) years, without interest.
The Bank further contends that the "new value" exception to the absolute priority rule does not exist, and that even if it did exist, the interests retained by interest holders are limited to the extent of the "new value" actually provided to the reorganized Debtor. If the new value exception does exist, so argues the Bank, the interest retained is limited by the fair market value of the equity in the reorganized Debtor, as measured by the amount that creditors or third parties are willing to pay to obtain an equity interest in the reorganized Debtor and subject to higher and better offers.
The new value exception was first announced in Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S. Ct. 1, 84 L. Ed. 110 (1939) (Los Angeles Lumber). In Los Angeles Lumber the Supreme Court, citing Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 33 S. Ct. 554, 57 L. Ed. 931 (1913), and Kansas City Terminal Railway Co. v. Central Union Trust Co., 271 U.S. 445, 46 S. Ct. 549, 70 L. Ed. 1028 (1926), said that where the need for new money essential to the success of the reorganized debtor arises and the old equity holders make a fresh contribution and receive in return a participation "reasonably equivalent to their contribution" no *707 objection can be made. 308 U.S. at 121, 60 S.Ct. at 10.
Although neither the Supreme Court, nor the Second Circuit, has specifically ruled upon the issue of the continued existence of the new value exception, the Supreme Court has referred to it. In Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S. Ct. 963, 99 L. Ed. 2d 169 (1988) (Ahlers), the Court indicated that there would be no expansion of the new value exception beyond that recognized in the case law at the time the Code was enacted. Id., 485 U.S. at 205, 108 S. Ct. at 968. In footnote 3, however, the Court specifically stated that it was not ruling on the continued existence of the new value exception[15]. Thus, there has been disagreement as to whether the new value exception has survived the enactment of the Code.
Recently, the Ninth Circuit in Bonner Mall Partnership v. U.S. Bancorp Mortgage Co., 2 F.3d 899 (9th Cir.1993) (In re Bonner Mall Partnership) held that "the new value exception remains a vital principle of bankruptcy law." In In re Bonner Mall Partnership, the debtor, owner of a shopping mall in foreclosure, proposed a Chapter 11 plan of reorganization that relied on the new value exception. U.S. Bancorp Mortgage Co. objected to the plan, arguing, inter alia, that the new value exception had not survived the enactment of the Code.
The Ninth Circuit's opinion on the continued viability of the new value exception hinges on its interpretation of the absolute priority rule. The absolute priority rule was a judge-made doctrine under the Bankruptcy Act (the "Act") and is now codified pursuant to section 1129(b)(2)(B)(i) and (ii) in the Code. Pursuant to section 1129(b)(2)(B)(ii), "The holder of any claim or interest that is junior to the claims of [a senior] class will not receive or retain under the plan on account of such junior claim or interest any property." (emphasis added) 11 U.S.C. § 1129(b)(2)(B)(ii). "Had Congress intended that old equity never receive any property under a reorganization plan where senior claim classes are not paid in full, it could simply have omitted the `on account of' language from section 1129(b)(2)(B)(ii)." In re Bonner Mall Partnership, 2 F.3d at 909. A plan of reorganization that allows old equity to retain property "on account of" a substantial, necessary, and fair new value contribution, does not give old equity property "on account of" prior interests. In re U.S. Truck, 800 F.2d at 581.
Section 1129(b)(2)(B)(ii) prohibits old equity holders from retaining property on account of their claims or interests if classes of creditors senior to them have not been paid pursuant to section 1129(b)(2)(B)(i). However, Section 1129(b)(2)(B)(ii) does not say that old equity holders may never retain property.
In Dewsnup v. Timm, ___ U.S. ___, 112 S. Ct. 773, 116 L. Ed. 2d 903 (1992), the Supreme Court's most recent decision concerning interpretation of the Code in light of the Act, the Court held that when amending the bankruptcy laws "[Congress did] not write `on a clean slate.'" Therefore, most bankruptcy analysts look to pre-Code practice under the Act for the most logical referral of the exception to section 1129(b)(2)(B)(ii). Since the new value exception was a recognized exception to the absolute priority rule under the Act, and section 1129(b)(2)(B)(ii) does not completely forbid old equity from retaining property, this Court finds that the new value exception has, indeed, survived enactment of the Code.
In consideration of above findings, it therefore follows that the Debtor's new value contribution must be evaluated in light of the criteria announced in Los Angeles Lumber. For old equity to retain its interests pursuant to the exception, the capital contribution must be (1) new, (2) substantial, (3) money or money's worth, (4) necessary for a successful reorganization and (5) reasonably equivalent to the *708 value or interest received. (Citations omitted.) In re Bonner Mall Partnership, 2 F.3d at 908.
The instant case is analogous to In re Miami Center Associates, Ltd., a recently reported single asset real estate Chapter 11 case. In re Miami Center Associates, Ltd., 144 B.R. 937 (Bankr. S.D.Fla.1992). In re Miami Center Associates, Ltd., concerns circumstances in which the debtor's partners were to contribute new value in the amount of $2 million dollars upon confirmation of the Plan. Id. at 942. In return, the partners would retain an interest in the debtor's property with a present value of $18,550,000. The secured creditor was owed approximately $38 million dollars in connection with first and second nonrecourse mortgages that it held on both the Debtors real and personal property. Under the Plan, unsecured creditors were not to be paid in full. The court held that it was the partners who primarily stood to gain from the capital cash infusion, while the secured creditor ran the ultimate risk of the project's failure with no upside potential. The court, without ruling on the continued viability of the new value exception, held that the treatment of the secured creditor was not fair and equitable because the size of the new value contribution was not reasonably equivalent to the equity retained. Id. Thus, the plan violated the absolute priority rule.
Similarly, in the instant case the Debtor's principals are proposing a new value capital infusion in the approximate amount of $2.4 million, $770,000 of which will be contributed by Van Wagner. At confirmation, the proposed contribution is $1,590,000, of which $240,000 is to be contributed by Van Wagner.
It appears that only a small portion of the "new value" capital infusion is allocated to satisfy creditors' claims upon confirmation. The new value is to be used primarily to make repairs to OTS and thereby preserve and enhance the value of the interest to be retained by the contributing principals[16]. Thus, the Plan reserves the upside potential for the Debtor while forcing the Bank to bear all the risk.
This Court finds that the proposed capital contribution of the limited partners is not proportionate to the interests which they will retain under the Debtor's Plan of Reorganization. We therefore conclude that the capital infusion fails to meet the requirements of the new value exception.
The Bank maintains that in order to promote the best interest of the creditors, the equity stake in the Debtor should be subject to higher and better offers including offers from the public or other creditors. In that way, creditors can be assured that they are receiving the maximum capital infusion available.
The Debtor responds by pointing out that the Bank possesses a total claim against the Debtor of approximately $30 million. OTS has a stipulated value of $19 million. Accordingly, the Plan provides that the Bank will retain its lien on OTS to the extent of $19 million. Thus, the Debtor has no equity in OTS by virtue of the Bank's post-confirmation mortgage on OTS for $19 million.
The Debtor's argument is a variation of the "no value" theory rejected by the Supreme Court in Ahlers. In Ahlers, the debtor argued that the absolute priority rule does not apply where the property which the junior interest holder wishes to retain has no value to the senior unsecured creditors. Ahlers, 485 U.S. 197, 108 S. Ct. 963, 99 L. Ed. 2d 169 (1988). The debtor maintained that "the creditors are deprived of nothing if such a so-called `interest' continues in the possession of the reorganized debtor." Ahlers, 485 U.S. at 207, 108 S. Ct. at 969. "Even where debts far exceed the current value of assets, a debtor who retains his equity interest in the enterprise retains `property' . . . Whether the value is `present or prospective, for dividends or only for purposes of control' a retained equity interest is a property interest to `which the creditors [are] entitled . . . before the stockholders [can] retain it for any purpose whatever.'" Ahlers, 485 U.S. at *709 208, 108 S. Ct. at 969, citing, Northern Pacific R. Co. v. Boyd, 228 U.S. at 508, 33 S. Ct. at 561.
In the instant case, the proposed new infusion of capital is not reasonably equivalent to the interests being received by the limited partners. Hence, the requirements for the new value exception to the absolute priority rule are not met. Therefore, the Plan violates section 1129(b)(2)(B)(ii) of the Code.
4) FEASIBILITY OF THE DEBTOR'S PLAN
Section 1129(a)(11) of the Code requires that a plan be feasible in order for it to be confirmable, such that:
confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.
11 U.S.C. § 1129(a)(11).
Collier articulates a summary of the feasibility requirement:
Basically, feasibility involves the question of emergence of the reorganized debtor in a solvent condition and with reasonable prospects of financial stability and success. It is not necessary that the success be guaranteed, but only that the plan present a workable scheme of reorganization and operation from which there may be a reasonable expectation of success.
5 Collier on Bankruptcy (15th ed. 1992) ¶ 1129.02[11], at 1129-54.
The feasibility test requires the court to determine whether a plan is workable and has a reasonable likelihood of success. In re Drexel Burnham Lambert Group, Inc., et al., 138 B.R. 723 (Bankr. S.D.N.Y.1992). The purpose of the feasibility test has been described as protection against visionary or speculative plans. Pizza of Hawaii, Inc. v. Shakey's, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374, 1382 (9th Cir.1985) quoting, 5 Collier on Bankruptcy ¶ 1129.02[11] at 1129-34 (15th ed. 1984); accord, Drexel Burnham, 138 B.R. at 762.
Factors a plan's proponent must address and that a court should consider in making a feasibility determination include: (1) the adequacy of the debtor's capital structure; (2) the earning power of the business; (3) the economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; (6) any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. In re Landmark Plaza Park, Ltd., 7 B.R. 653, 659 (Bankr.D.N.J.1980); In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 151 (Bankr.S.D.N.Y.1984).
Based on the testimony of Robert Von Ancken ("Von Ancken"), President of James Felt Appraisal and Consulting Services, and the supporting documents presented, this Court rejects the Bank's argument that the projections of earning power for OTS are overly optimistic without a change in the current management. We further find that, absent the other statutory infirmities which this Court has already found bar the confirmation of this Plan, were the Plan to be confirmed, a change in management would not be necessary.
The success of the Plan is based largely on the potential income from the projected new signage on the south, east, and west facades of OTS. While it is difficult to precisely predict the future income from the building's signage generally, the Plan, nevertheless, proposes a plausible strategy for leasing new signage on the facades of OTS. In addition, at trial, Von Ancken made assumptions which revealed that the building's earning power is likely to improve over the life of the Plan. Because, this Court is persuaded that the Plan presents reasonable prospects of the Debtor's future financial stability we find that the Plan as proposed is feasible and comports with section 1129(a)(11) of the Code.
Conclusion
For the preceding reasons, this Court finds that the Debtor's Plan of Reorganization *710 is not in compliance with the various sections of the Bankruptcy Code discussed above.
Therefore, this Court holds that the Plan proposed by the OTS Limited Partnership cannot be confirmed. Additionally, the Bank's motion for relief from the automatic stay pursuant to section 362(d) of the Code is granted. Accordingly, counsel for the Bank should settle an order on five (5) day's notice consistent with this opinion.
NOTES
[1] On March 30, 1993, Banque Nationale de Paris, by assignment, became successor in interest to Banque Arabe et Internationale d'Investissement's interest in the note and mortgage on Debtor's building and real property located at One Times Square.
[2] Section 1122 of the Code provides:
(a) except as provided in subsection (b) of this section, a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests.
(b) A plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience.
Section 1129(a)(1) provides:
The court shall confirm a plan only if . . . The plan complies with the applicable provisions of this title.
[3] Section 1129(b)(2) defines "fair and equitable" in relation to the treatment of claims in a chapter 11 reorganization plan. Pursuant to section 1129(b)(2)(A)(i)(II), a plan is fair and equitable:
with respect to a class of secured claims, [if, inter alia,] the plan provides
that each holder of a claim of such class receive on account of such claim deferred cash payments totalling at least the amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder's interest in the estate's interest in such property.
[4] The absolute priority rule, as codified in sections 1129(b)(2)(B)(i) and (ii), provides:
With respect to a class of unsecured claims the plan provides that each holder of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or
the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property.
[5] Section 1129(a)(11) of the Code provides:
"The Court shall confirm a plan only if . . . Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan."
[6] This court's subject matter jurisdiction over this matter arises under 28 U.S.C. §§ 1334(b) and 157(a) and the "Standing Order of Referral of Cases to Bankruptcy Judges" of the United States District Court for the Southern District of New York, dated July 10, 1984 (Ward, Acting C.J.).
[7] Section 1111(b)(2) of the Code provides:
If such an election is made, then not withstanding section 506(a) of this title, such claim is a secured claim to the extent such claim is allowed.
[8] Section 1129(a)(9)(A) provides:
The court shall confirm a plan . . .
Except to the extent that the holder of a particular claim has agreed to a different treatment of such claim, [if] the plan provides that
with respect to a claim of the kind specified in section 507(a)(1) or 507(a)(2) of this title, on the effective date of the plan, the holder of such claim will receive on account of such claim cash equal to the allowed amount of such claim.
[9] The London Interbank Offered Rate ("LIBOR") is the rate paid in London on three-month dollar deposits from other banks, used as a base rate in international lending. New York Times, 7/6/93, section d; p. 7; Col. 2, Table.
[10] Rule 3018(d) of the Federal Rules of Bankruptcy Procedure provides:
A creditor whose claim has been allowed in part as a secured claim and in part as an unsecured claim shall be entitled to accept or reject a plan in both capacities.
[11] Section 1129(b)(1) of the Code provides:
. . . If all of the requirements of subsection (a) of this section other than paragraph (8) are met with respect to a plan, the court, on request of the proponent of the plan, shall confirm the plan notwithstanding the requirements of such paragraph if the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan.
[12] § 105(a) of the Bankruptcy Code provides that:
the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
"The basic purpose of section 105 is to assure the bankruptcy courts power to take whatever action is appropriate or necessary in aid of the exercise of jurisdiction." 2 Collier on Bankruptcy, ¶ 105.01 (15th ed. 1990).
[13] For purposes of these matters, the November 9, 1992, Stipulations referred to herein will be deemed signed as of the date of this opinion.
[14] It should be noted that unless the Debtor rejects the current signage contracts, the interests of Van Wagner and Spectacolor will be expunged due to the foreclosure judgments against them. See, supra at 698, 699.
[15] "[O]ur decision today should not be taken as any comment on the continuing vitality of the Los Angeles Lumber [new value] exception . . ." Ahlers, 485 U.S. at 203, 108 S. Ct. at 969, n. 3.
[16] Debtor's Plan of Reorganization at 15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547292/ | 809 A.2d 825 (2002)
355 N.J. Super. 143
STATE of New Jersey, Plaintiff-Respondent,
v.
N.A., Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted September 10, 2002.
Decided November 18, 2002.
*826 Peter A. Garcia, Acting Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).
Peter C. Harvey, Acting Attorney General, attorney for respondent (Erik W. Daab, Deputy Attorney General, of counsel and on the brief).
Before Judges SKILLMAN, CUFF and WINKELSTEIN.
The opinion of the court was delivered by CUFF, J.A.D.
Following a jury trial, N.A. was convicted of second degree endangering the welfare of a child contrary to N.J.S.A. 2C:24-4a. The victim was defendant's two year old son. Defendant was sentenced to a nine-year term of imprisonment. The trial judge also imposed a $50 VCCB assessment, a $30 LEOTEF penalty, and a $75 SNSF assessment.
In June 1996, defendant and R.M. were living together with their two year old son, K.M., and their one year old daughter, B.M. On June 18, the two children were in the playpen, while R.M. was on the couch watching television and defendant was sleeping in the next room. R.M. fell asleep and awoke to hear defendant screaming at their son. Defendant then grabbed the child and threw him on the floor. Defendant picked him up and hit him on the legs, buttocks, back and head. She slapped and punched the child fifteen to twenty times. Then, she took the boy into the bedroom and hit the boy five to ten times on his buttocks with a hairbrush.
R.M. followed defendant to the doorway of the bedroom. He saw the hairbrush in defendant's hand and saw her hit his son. When defendant saw R.M., she stopped hitting the child. R.M. returned to the living room and defendant brought the child with her into the room. When she started to hit the child once again, R.M. grabbed the boy and took him to a neighbor's house.
When R.M. arrived at the neighbor's house, he called his sister. After a half hour, R.M. returned to his apartment and started to pack some clothes. When his *827 sister arrived, R.M. left with his son and took him to a second sister's apartment. There, his sisters videotaped the child. A case worker from the Division of Youth and Family Services also arrived at the apartment and interviewed K.M.
A friend of defendant's, who frequently watched the child, responded with R.M.'s sister to his call for assistance. When the friend arrived at the couple's apartment, she picked up the child and noticed bumps on the child's head and marks on his face, arms, buttocks and legs. Defendant's neighbor also testified that she observed two or three bruises on the boy's legs when R.M. brought the boy to her house. She also testified that R.M. pulled down the child's pants and showed her his buttocks which were bright red.
The following day, defendant used her neighbor's telephone to call her father. The neighbor overheard defendant's side of the conversation and reported that defendant told her father that "she had just beat the shit out of [K.M.]" because he went into her purse and was playing with her makeup. Defendant related that she was afraid he would harm himself. The neighbor further stated that defendant acknowledged to her father that she needed help and that her son did not deserve the beating. Yet, after she completed the call, defendant told her neighbor that R.M. had beaten the child.
Defendant's father confirmed that his daughter called him on June 19. He stated that she was "very hysterical, crying, and said her son had gotten into her ... pocketbook." Defendant told her father that "she became upset and smacked him with a hairbrush."
Defendant testified at trial. She denied hitting her son but admitted that she chastised him for playing with her pocketbook and its contents. According to defendant, she placed the child in a corner but he threw himself on the ground. She admitted to spanking him one or two times on the hand but denied hitting him with a hairbrush. She attributed the bruises on the child's back, legs and buttocks to blows administered by R.M. She accused R.M. not only of beating the child but also overreacting to her punishment of the child. She further testified that she told R.M. to leave the apartment and that she called the police to report R.M.'s beating of the child. She also denied that she told her father that she hit the child with a hairbrush. According to defendant, she told her father that she was being accused of hitting the child with the brush.
On appeal, defendant raises the following arguments:
POINT I
THE DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON PRIOR INCONSISTENT STATEMENTS THAT PERMITTED THE JURORS TO CONSIDER THE DEFENDANT'S PRIOR OMISSIONS AND FAILURES TO DISCLOSE AS SUBSTANTIVE EVIDENCE AND IMPEACHMENT EVIDENCE AGAINST THE DEFENDANT.
(Not Raised Below).
POINT II
*828 THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S CONFUSING AND CONTRADICTORY INSTRUCTION ON THE LAW OF ENDANGERING THE WELFARE OF A CHILD.
(Not Raised Below).
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CAUSATION EVEN THOUGH CAUSATION WAS A MATERIAL ISSUE IN THE CASE.
(Not Raised Below).
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE JURY'S CONSIDERATION OF OTHER-CRIME EVIDENCE OF DRUG OFFENSES.
(Not Raised Below).
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE RATIONALLY SUPPORTED BY THE EVIDENCE.
(Not Raised Below).
POINT VI
THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
We reject each of these arguments.
The trial judge instructed the jury that it could consider a witness's failure to disclose information at a previous time in its evaluation of a witness's credibility. He also told the jury that it could consider the same omission as substantive evidence. Defendant argues that this instruction violated her federal and state constitutional rights to post-arrest silence. No objection was lodged at trial to this instruction; therefore, we must apply the plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 333, 273 A.2d 1 (1971).
At trial, defendant testified that R.M. was responsible for the numerous bruises on her son. She testified that she did not beat her son with a hairbrush on June 18. She admitted that she hit the child on the hand once or twice and inadvertently scratched his arm as she tried to place the boy in the corner. She also testified that she called the local police after R.M. left their apartment with their son but when the police arrived, defendant did not tell the responding officer that R.M. had hit her son.
Defendant's telephone call to the police pre-dated her arrest by several days and *829 was initiated by her. She did not decline to talk about her son's condition but simply informed the police that she had an argument with R.M. and he had left the apartment. We fail to see how confronting her with a pre-arrest statement which omitted her trial accusation against the child's father compromised her right to post-arrest silence.
The trial court's instruction that the prior inconsistent statement could be used as substantive evidence may have been somewhat confusing because it is difficult to understand how any prior inconsistent statement by defendant could have been used as substantive evidence. This may explain the failure of counsel to object to the jury instruction. Certainly, our review of the record reveals no prejudice to the defendant. The State's evidence was strong. Two witnesses expressly refuted defendant's recollection of a phone call to defendant's father. Both witnesses testified that defendant admitted that she had beaten the child with a hairbrush. Thus, any error did not contribute to an unjust result.
Defendant argues that the jury should have been instructed on the issue of causation because causation was a material issue in the case. No exception to the charge was made at trial concerning the omission of a causation instruction. Therefore, we review this alleged error according to the plain error standard. R. 2:10-2; Macon, supra, 57 N.J. at 333, 273 A.2d 1.
If causation is disputed, a jury instruction on causation is required, even in the absence of a request. State v. Martin, 119 N.J. 2, 16, 573 A.2d 1359 (1990). Here, however, the issue was not what factor, event or conduct caused the injuries to the child but who hit the child. Furthermore, a parent endangers the welfare of a child if she causes "the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1, N.J.S.A. 9:6-3 and N.J.S.A. 9:6-8.21]." N.J.S.A. 2C:24-4a. N.J.S.A. 9:6-8.21, which is incorporated by reference in N.J.S.A. 2C:24-4a, provides in relevant part:
c. "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; ... (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, ... to exercise a minimum degree of care ... (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court....
[emphasis supplied.]
This language, particularly the language which encompasses placing the child in a zone of danger, does not require that any act or omission of the parent result in specific harm to the child. The focus is on the conduct of the parent which exposes the child to a "substantial risk" of death or physical harm. Therefore, a causation instruction would not be appropriate in this case.
Defendant was charged with endangering the welfare of a child contrary *830 to N.J.S.A. 2C:24-4a. On appeal, she argues that the trial judge erred because he failed to charge the lesser included offense of cruelty and neglect of a child codified at N.J.S.A. 9:6-3. This issue also comes before us as plain error. R. 2:10-2. Therefore, we must determine if any error had the capacity to produce an unjust result. Macon, supra, 57 N.J. at 333, 273 A.2d 1.
As discussed, a person, such as defendant, having a legal duty for the care of a child is guilty of the offense of endangering the welfare of a child if she "causes the child harm that would make the child an abused or neglected child" as defined in Title 9. N.J.S.A. 2C:24-4a. Due to the special relationship and obligation to the child by a parent, the prohibited conduct is a second degree offense. Ibid. The Legislature has also declared that the same conduct is a fourth degree offense. N.J.S.A. 9:6-3 provides in pertinent part:
Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.
This section makes no distinction for the relationship of the actor to the child.
Upon request of a defendant, the trial judge shall charge the jury with respect to an included offense if there is a rational basis for a jury to convict the defendant of the included offense. N.J.S.A. 2C:1-8e; State v. Brent, 137 N.J. 107, 113-14, 644 A.2d 583 (1994). The Criminal Code defines an included offense as follows:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
[N.J.S.A. 2C:1-8d.]
Here, subsections (2) and (3) are not implicated. The Title 9 offense does not target and defendant's actions could not be considered an attempt or conspiracy to commit the offense charged. Furthermore, the Title 9 offense does not differ from the second degree offense because of a less serious injury or risk of injury to the child. Moreover, the same "knowing" culpability applies to each offense. State v. Demarest, 252 N.J.Super. 323, 333, 599 A.2d 937 (App.Div.1991).
Whether an offense is an included offense according to subsection (1) focuses on the facts not the elements of the offense. State v. Doss, 310 N.J.Super. 450, 453-55, 708 A.2d 1219 (App.Div.), certif. denied, 155 N.J. 589, 715 A.2d 992 (1998). State v. Whittaker, 326 N.J.Super. 252, 741 A.2d 114 (App.Div.1999), illustrates this principle. In Whittaker, defendant was charged with aggravated assault with a handgun; he requested a charge of aggravated assault with a machete. Id. at 259, 741 A.2d 114. We held that the trial court properly charged both offenses even though aggravated assault with a machete was the same rather than a different offense. Ibid. We reasoned the alternative charge was appropriate because the record supported a finding that defendant utilized *831 a machete rather than a handgun and the instrumentality used in the attack had significant sentencing ramifications. If defendant had been convicted of aggravated assault with a handgun, he would have been subject to a Graves Act three-year parole ineligibility term. Id. at 256, 741 A.2d 114. Under this reasoning, however, the alternate charge would not have been required if the instrumentality used in the offense was different than as charged but did not trigger a more onerous sentence. The reasoning in Whittaker also does not address the situation in which the offenses are the same and no finding by the jury can distinguish defendant's actions as a second degree or fourth degree offense.
It is apparent that the Title 2C offense of endangering the welfare of children and the Title 9 offense of cruelty and neglect of children are the same offenses. The only difference is the degree of the offense and the penalty. Each offense criminalizes the same harm or risk of harm to the child. Each offense requires the same proof of "knowing culpability." Demarest, supra, 252 N.J.Super. at 333, 599 A.2d 937. Each offense also encompasses conduct by a parent. An instruction to the jury on each offense would be the same. Furthermore, unlike Whittaker, the jury cannot make a finding, such as the instrumentality used in an attack, that will affect the gradation of the offense.
The conclusion that the offenses are identical is supported by the legislative history of Title 2C. The 1971 Commentary to what became the Criminal Code, specifically the section which was later codified as N.J.S.A. 2C:24-4, states "[t]his Section incorporates into the Code the existing law as to abuse, abandonment, cruelty and neglect of children by making such conduct criminal under the definitions of those terms in Title 9. The intent is to incorporate the crime now defined in N.J.S.[A.] 9:6-3 without substantial change except for the penalty provisions." Final Report of the New Jersey Criminal Law Revision Commission, Vol. II at 259 (1971). Although one commentator opines that N.J.S.A. 9:6-3 has been superseded, it has not been repealed. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:24-4 (2002). Indeed, amendments to both statutes in the intervening years evince a legislative intent that both statutes are to be preserved perhaps to provide prosecutors the option of charging a lesser offense under appropriate circumstances. See State v. D.V., 348 N.J.Super. 107, 114-16, 791 A.2d 304 (App.Div.) (recognizing the inherent discretion of the prosecutor to select between a crime of the second degree and a crime of the fourth degree), certif. granted, 174 N.J. 39, 803 A.2d 634 (2002).
Under these unique circumstances, we conclude that the Title 9 offense should not have been charged as a lesser included offense. Submission of both offenses would involve the jury in the act of imposition of sentence. Except for capital cases and those offenses in which the jury must make a specific finding to invoke an enhanced sentencing scheme, such as the Graves Act, a jury's consideration of the evidence is confined to what, if any, offenses have been committed by the defendant rather than the penalty which may or must be imposed. State v. Carswell, 303 N.J.Super. 462, 476-77, 697 A.2d 171 (App.Div.1997); State v. Reed, 211 N.J.Super. 177, 184, 511 A.2d 680 (App. Div.1986), certif. denied, 110 N.J. 508, 541 A.2d 1368 (1988). The rationale for this limitation is that sentencing information fails to help the jury in deciding the issue of guilt, distracts the jury by confusing the issues to be decided, and invites a compromise verdict. Reed, supra, 211 N.J.Super. at 185, 511 A.2d 680. Submission of both *832 offenses would transform the traditional function of the jury, a consequence which should not occur lightly. Rather, we elect to defer to the discretion reposed in the prosecutor regarding the nature and extent of the charges to be presented to the Grand Jury. Given our conclusion that the Title 9 offense is not an included offense, we find no error, much less plain error, in the failure of the trial judge to also charge the Title 9 offense.
Defendant also contends that a gratuitous non-responsive comment by R.M. during his cross-examination about drug use by defendant injected other-crime evidence and deprived her of a fair trial. This contention is clearly without merit and does not require discussion in a written opinion. R. 2:11-3(e)(2).
Defendant further argues that the nine-year term of imprisonment is excessive. This contention is also without merit. When sentenced, defendant had a criminal record including four other indictable convictions and numerous municipal convictions. She had been afforded probation on several occasions but had been cited for violation of the terms of probation on three occasions. Her criminal record and history of violation of the terms of probation, her history of poly-substance abuse and sporadic employment fully support the sentencing judge's findings that there is a risk that defendant would commit another crime and that there are no mitigating factors. The imposition of a term beyond the presumptive term of seven years is well-supported by the record. State v. Roth, 95 N.J. 334, 364-66, 471 A.2d 370 (1984).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547299/ | 809 A.2d 295 (2002)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Michael OVERBY, Appellant.
Supreme Court of Pennsylvania.
Argued October 17, 2000.
Decided October 24, 2002.
*297 Mitchell Scott Strutin, Esq., Philadelphia, for Michael Overby.
Catherine Marshall, Esq., Philadelphia, Anthony V. Pomerantz, for Commonwealth of Pennsylvania.
Before: FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
*296 OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Justice CAPPY.
This is a direct review of a sentence of death imposed by the Court of Common Pleas of Philadelphia County.[1] Although Appellant, Michael Overby, alleges numerous errors related to his convictions for first-degree murder[2], robbery[3] and conspiracy[4], we address only the issue related to Appellant's confrontation rights. Bruton v. United States, 391 U.S. 123, 136, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). For the reasons stated herein, we hold that the trial court erred in admitting the statement of Appellant's co-defendant in the manner in which it was redacted and that such error was not harmless. Accordingly, we reverse the judgment of sentence and remand for a new trial as to all charges.
The convictions arose out of the following set of facts.[5] Ronald and June Pinkett, neighbors of Lillian Gaines, the victim, saw Isaac Young, Appellant and Gaines outside of Gaines' home between 5:00 and 5:30 a.m. on September 28, 1990. N.T., 7/10/1996, p. 90, 166-67. June Pinkett testified that she had seen Appellant in Gaines' presence on previous occasions. Id. at 94-95. She stated that on the morning *298 of the murder, she observed Gaines crying and that she overheard a discussion concerning Gaines owing money to Appellant or some other third person. Id. at 91. Pinkett asked Gaines if everything was okay and Gaines responded that everything was fine. Id. Appellant allegedly told Ms. Pinkett to mind her own business and the three individuals then went into Gaines' residence. Id. at 91, 98.
Edzina Fletcher, Gaines' roommate, found Gaines early that morning with her hands and feet bound and a piece of cloth in her mouth.[6]Id. at 31-32. Gaines' pants were partially pulled down. Id. at 33. Fletcher noted that a 19" television was missing from the home. Id. at 36.
Later that day, Dwayne Elliott, Appellant's co-defendant, tried to exchange a 19" television for drugs. N.T., 7/12/1996, p. 9; N.T., 7/12/1996, p. 24.
In January of 1992, Nicole Schneyder was brought into the police station by a plain-clothes police officer for questioning regarding the murder of Gaines. She gave a statement to Detective Dominic Mangoni, a detective in the homicide division of the Philadelphia Police Department. Detective Mangoni recorded the statement verbatim and after the statement was taken, Schneyder reviewed and signed it. N.T., 7/12/1996, p. 21. Schneyder informed the police that on the day before the incident, Appellant told her that he was going to "run up", i.e., rob someone because he needed some money. N.T., 7/12/1996, p. 22. Schneyder also informed the police that about a week following the incident, Elliott told her that he was involved in the Gaines incident. Id. at 23. Elliott also told Schneyder that Appellant, another person and he were just there to rob the house, but that Gaines gave Appellant "a hard way to go,"; that Appellant told Elliott to grab her; that Elliott grabbed her and held her while another person tied her up, Id.; that Appellant strangled her, Id. at 23-24; and that then, Elliott removed Gaines' television from her house and took it to Miss Babe's house to sell, Id. at 24.
Based upon the above information, the police arrested Appellant and charged him with first-degree murder, robbery and conspiracy related to the murder of Gaines. The matter proceeded to preliminary hearing at which Appellant, Elliott and Young were present. At the preliminary hearing, the Commonwealth called Schneyder as a witness. She recanted her prior statement to the police. She testified that she did not remember speaking with either Appellant or Elliott. Further, she admitted that she made the statements, but asserted that she made them in order to "tell them [the police] what they wanted to hear so [she] could get out of homicide." N.T., 1/10/1995, p. 13. Over objections by defense counsel, Schneyder's prior statement to the police was admitted under Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), as a prior inconsistent statement of an available witness.[7] The portion of Schneyder's statement that contained Elliott's *299 inculpatory statement to Schneyder was redacted to omit any reference to Appellant. At the conclusion of the hearing, the court determined that the Commonwealth presented sufficient evidence to proceed in its case against Appellant and scheduled the case for trial.
At the first jury trial, Appellant was tried jointly with Isaac Young and Elliott.[8] Nicole Schneyder did not appear as a witness. She was declared unavailable and her preliminary hearing testimony wherein she recanted her statement to the police was read to the jury. After the preliminary hearing testimony was read at trial, Nicole Schneyder appeared. The Commonwealth and both defense counsels declined to call her as a witness. The court also allowed Detective Mangoni to read the prior statement that Schneyder made at the police station. Although counsel initially objected to Detective Mangoni's testimony, when faced with the choice of either renewing an objection to Mangoni's testimony or calling Nicole Schneyder to the stand, defense counsel did not further object to Mangoni's testimony. Following the trial, Appellant was convicted of robbery and conspiracy. The jury was undecided on the first-degree murder charge with regard to Appellant and as to all charges against Elliott. The trial court declared a mistrial, and subsequently scheduled a retrial.
At the second trial, a similar procedure was used involving the testimony of Schneyder. At the conclusion of the second trial, Appellant was convicted of first-degree murder. The jury found co-defendant, Elliott, guilty of robbery, but not guilty of murder and conspiracy. During the penalty phase, the Commonwealth incorporated the testimony that indicated that the killing occurred during a robbery, as well as the previous convictions for robbery and conspiracy. Following the penalty phase, the jury found one aggravating circumstancethat the killing occurred in the perpetration of a felony[9]and no mitigating circumstances and sentenced Appellant to death.[10]
Appellant appealed to this court, asserting, inter alia, that Elliott's hearsay statement to Nicole Schneyder, as redacted at both trials, violated his right of confrontation under the Sixth Amendment of the United States Constitution.[11]Bruton v. United States, 391 U.S. 123, 136, 88 *300 S.Ct. 1620, 20 L. Ed. 2d 476 (1968). Appellant urges that he is entitled to a new trial. We agree.[12]
Appellant's argument, that we address today, implicates the Confrontation Clause of the United States Constitution. The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. The Confrontation Clause is applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Although the origins of the Clause are obscure[13], the United States Supreme Court has reiterated that the fundamental right that the Clause seeks to preserve is the defendant's right to a fair trial. Id. at 405, 85 S. Ct. 1065; see also Lee v. Illinois, 476 U.S. 530, 539-40, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986); Bruton, 391 U.S. at 126, 88 S. Ct. 1620. The right of confrontation contributes to the perception as well as the reality of fairness in the criminal justice system by promoting an open contest between the accused and the accuser. In addition to serving these "symbolic goals ... the right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials." Lee, 476 U.S. at 540, 106 S. Ct. 2056. Thus, at its most basic level, the Sixth Amendment seeks to ensure that the trial is fair and reliable by preserving an accused's right to cross-examine and confront the witnesses against him.
In order to protect these rights, the Court has developed different analyses under the Confrontation Clause depending on how a statement is used at trial. For example, where a hearsay statement, given by a non-testifying declarant, is offered as evidence to establish the guilt of the non-declaring defendant, the court must consider whether it was admitted pursuant to either a "firmly rooted hearsay exception" or contains "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66-67, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Only if the hearsay statement was admitted under such circumstances will such a statement be deemed to respect the non-declaring defendant's right of confrontation. Roberts; see also Lilly, 527 U.S. at 124-25, 119 S. Ct. 1887; Bourjaily *301 v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987)(admission of co-conspirator hearsay statement did not violate the Confrontation Clause because it fell within a firmly rooted hearsay exception); Lee, 476 U.S. at 543, 106 S. Ct. 2056. On the other hand, where a hearsay statement is not admitted against the non-declaring co-defendant as evidence, then the court must consider whether sufficient precautions have been taken to insulate the non-declaring co-defendant from spillover prejudice due to the admission of the hearsay statement. Gray v. Maryland, 523 U.S. 185, 195, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998); see also Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987); Lee, 476 U.S. at 542, 106 S. Ct. 2056 (explaining the purpose of the Bruton rule); Bruton. Where the precautions are insufficient, then the admission of the statement violates the non-declaring co-defendant's right to confront and cross-examine the witnesses against him. Bruton, 391 at 137, 391 U.S. 123; see also Gray; Richardson. Thus, in order to determine what Confrontation Clause analysis is proper in this case, we must initially consider whether the hearsay evidence, Elliott's statement to Schneyder, was offered to establish the guilt of Appellant, the non-declaring co-defendant.
In this case, it is clear that Elliott's statements, offered via the preliminary hearing testimony of Nicole Schneyder, were admitted against Elliott as evidence. However, the Commonwealth never argued that Elliott's statement was admissible against Appellant as evidence, nor does the Commonwealth raise such an argument to this court. Indeed, the Commonwealth redacted the statement to omit Appellant's name, demonstrating its intent to offer the statement only against Elliott. Thus, the statement was not offered to establish the guilt of Appellant and our Confrontation Clause analysis proceeds pursuant to Bruton and its progeny.
In Bruton, defendant-Bruton and his co-defendant were tried at a joint trial. At the joint trial, the co-defendant's confession to a postal inspector was admitted against the co-defendant/declarant as substantive evidence. Bruton, 391 U.S. at 124, 88 S. Ct. 1620. The trial court gave an instruction to the jury, informing it that the confession could only be used against the co-defendant/declarant and could not be considered against defendant-Bruton, since the statement was inadmissible hearsay with regard to Bruton. Id. at 125, 88 S. Ct. 1620. Following a conviction, Bruton appealed on the basis that the admission of the statement at trial violated his right of confrontation and that the instruction was insufficient to protect his confrontation rights.
The Court granted certiorari to consider the question last addressed in Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), "whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence." Bruton, 391 U.S. at 123-24, 88 S. Ct. 1620. The Court explained that the basic premise of Delli Paolithat a jury could follow instructions with regard to these types of statementsno longer held true. Although the court conceded that in most cases, the jury can and will follow the judge's instructions, where there is a "powerfully incriminating extrajudicial statement", the risk that the jury will not and cannot follow the instructions is simply too great and the consequences of such a failure too vital to the defendant, "that the practical and human limitations of the jury system cannot be ignored." Id. at 135, 88 S. Ct. 1620. Accordingly, the Court ultimately *302 concluded that "in the context of a joint trial, we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination." Id. at 136, 88 S. Ct. 1620.
Over time, the Court has further defined the contours of the rule first expressed in Bruton. The Court has recognized that there may be various remedies to avoid a Confrontation Clause violation. For example, in Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987), Clarissa Marsh was tried jointly with her co-defendant. At the joint trial, the co-defendant's confession was admitted against him as substantive evidence. However, the statement was redacted to omit any and all reference to Marsh. Id. at 203-04, 107 S. Ct. 1702. Marsh testified at trial and admitted to being at the scene of the crime, but stated that she had no prior knowledge of any intent to commit a crime. Id. at 204, 107 S. Ct. 1702. Similar to the situation in Bruton, the court instructed the jury that the co-defendant's confession could not be considered against Marsh. Id. at 205, 107 S. Ct. 1702.
Following her conviction and affirmance of the judgment of sentence on direct review, Marsh filed a writ of habeas corpus. Marsh argued that the admission of the co-defendant's statement at the joint trial violated her right of confrontation since, even though references to her were redacted, the statement incriminated her when linked with other evidence offered at trial, i.e., her own testimony that she was present at the scene of the crime. The Court granted certiorari to consider whether Bruton applies to situations where the statement is only incriminating when considered with other evidence offered at trial. Id. at 206, 107 S. Ct. 1702.
The Court acknowledged the rule expressed in Bruton, but distinguished the situation in Richardson on the basis that the statement in Bruton expressly implicated the defendant, whereas in Richardson, the statement only became incriminating when linked with evidence introduced later at trial. Id. at 208, 107 S. Ct. 1702.
Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that `the defendant helped me commit the crime' is more vivid than inferential incrimination and hence more difficult to thrust out of mind.
Id. Accordingly, the Court implied that the holding in Bruton was limited to a confession that was "incriminating on its face" and could be complied with by redaction.[14]Id. at 208-09, 107 S. Ct. 1702.
This court has applied the Confrontation Clause jurisprudence developed by the Supreme Court. In Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977), we held that consistent with Bruton the Commonwealth could introduce a redacted statement into evidence at a joint trial only if that statement did not refer to the other defendant. Further, prior to the Court's decision in Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)[15], we held that the substitution of a *303 co-defendant's name with the letter "X" or similar redaction did not violate the Confrontation Clause. See Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295, 1300 (1996)(following Commonwealth v. Lee, 541 Pa. 260, 662 A.2d 645 (1995)). However, in Miles, we also indicated that the use of a co-defendant's nickname in a statement was a violation of the Bruton rule. See id. at 1301.
Thus, based upon the above, it is clear that a statement cannot expressly implicate a non-testifying co-defendant. Marsh, Johnson. If the implication only arises following the introduction of other evidence at trial, then redaction and a limiting instruction may be sufficient to cure the potential prejudice to the defendant. Marsh. However, where an express implication exists, a jury instruction is insufficient to cure the prejudice to the non-testifying co-defendant and the statement violates the Confrontation Clause. Bruton. Employing these rules in the case at hand, we find that the statement at issue expressly implicated Appellant in the crime in violation of the Confrontation Clause.
At the first trial, the Commonwealth read the record of Nicole Schneyder's preliminary hearing testimony to the jury. The court admitted the record as a prior recorded statement of an unavailable witness. The record contained, inter alia, the following portions of Schneyder's prior statement to Detective Mangoni:
Question [by Detective Mangoni]: Nicole, do you have any knowledge concerning her [Gaines'] murder?
Response: Yeah. On Thursday the day before she was killed Michael Overby, they call him Hickey, and me were talking in his car....
N.T., 11/21/1995, p. 23. Thereafter, the following part of Schneyder's statement to the police containing Elliott's hearsay statement was read to the jury,
[Response continued]: He [Elliott] said that Lillian opened the door and he said that Lillian gave X a hard way to go.
*304 He said that it was him, another person and X, and that they went into the house and Lillian didn't want to give up any stuff and X told him, Wayney, to grab her, and then he grabbed her and held her while another person tied her up. He said that X strangled her.
N.T., 11/21/1995, p. 24-25. In this portion of the statement, Appellant's name was substituted with "X".
Detective Mangoni then took the stand to read the statement that Schneyder gave at the police station.[16] Detective Mangoni read, in pertinent part,
Question: Nicole, do you have any knowledge concerning her [Gaines'] murder?
Response: Yeah. On Thursday the day before she was killed X, they call him X.
N.T., 11/21/1995, p. 64. Appellant's counsel immediately objected to the redacted testimony on the basis that the jury was informed that "X" was Appellant. Id. at 64-66. The court then gave the Commonwealth the opportunity to correct the statement. Detective Mangoni then read the statement as it should have been read in the first instance, without the redaction, so that it read as follows:
Question: Nicole, do you have any knowledge concerning her [Gaines'] murder?
Response: Yeah. On Thursday the day before she was killed Michael Overby, they call him Hickey, and me were talking in his car....
Id. at 66-67.
When Detective Mangoni read that portion of the police statement containing Elliott's hearsay statement, Appellant's name was changed to "A" instead of "X". During the jury instructions, the court instructed the jury that "under the United States Constitution, each person who's on trial has a right to face his accuser, so, therefore, a statement made by a person is only evidence against that person who made the statement, not against anybody else." N.T., 11/22/1995, p. 26. As noted above, the jury could not decide on a verdict with regard to the first-degree murder charge, so the court declared a mistrial and scheduled a retrial.
At the second trial, a similar situation arose. Once again, the preliminary hearing testimony was read into the record, including Schneyder's recantation testimony and those portions containing the prior statement Schneyder made to Detective Mangoni. Appellant's name, in the portion of the statement containing Elliott's hearsay statement, was changed to "X." The following day, over defense counsel's objection, Detective Mangoni assumed the stand and read the statement Schneyder gave at the police station.[17] N.T., 7/12/1996, pp. 4-7. He stated, "the day before she was killed, X, they call him Hickey, and me were talking in his car." N.T., 7/12/1996, p. 22. At this point, counsel objected, and the court instructed the *305 jury that Schneyder's statement could only be used to show that she might have said something different on a former occasion. Id. However, the court never gave the jury a general confrontation instruction as it did in the first trial, i.e., that Elliott's statement could only be used as evidence against the person who made the statement. Once more, when Detective Mangoni read that portion of the statement that incorporated Elliott's hearsay statement, Appellant's name was changed to "A."
In order to discuss Appellant's arguments fully, we must consider the alleged errors at each trial separately. At the first trial, both prior statements were attributed to Schneyder. Schneyder's preliminary hearing testimony provided that she was going to be questioned about the statement she gave to Detective Mangoni on January 24, 1992. Detective Mangoni testified that he was going to read the statement that Schneyder gave him on January 24, 1992. Thus, the jury knew that the statements admitted at both points in the trial were identical. Based upon this, when the jury heard Detective Mangoni read Schneyder's statement for the second time, the "X" clearly referred to Appellant since the statement was identical to the statement attributed to him in Schneyder's previous statement. This error was compounded when, immediately after counsel's objection, Detective Mangoni read the same part of the statement, this time replacing the "X" with Appellant's name. At this point, the jury could surmise that "X" referred to Appellant. Additionally, Elliott's hearsay statement was "powerfully incriminating" as it implicated Appellant directly in the crimes in question. Thus, unlike the situation in Marsh, the jury could reasonably infer from the face of the statements that Elliott was referring to Appellant in violation of Bruton and this was the kind of inference that a jury could make immediately.
Moreover, while it is impossible to divine whether the jurors definitely knew that "X" and "A" referred to the same person or whether the jurors were simply confused by the alteration of the statement, we must conclude that based upon the similarity of the statements a reasonable juror would understand that the letter "X" referred to the same person as the letter "A". Once the statements established that "X" or "A" was Appellant, the Confrontation Clause was violated. The only possible way to correct such a violation was to give Appellant the opportunity to cross-examine Elliott regarding the statement. Bruton. Appellant did not have such an opportunity and thus, we must conclude that the admission of the statement as redacted violated Appellant's right of confrontation pursuant to Bruton.
A similar analysis applies to the second trial. However, the error at the second trial was even more egregious. First, the jury was apprised that "X" was Hickey when Detective Mangoni read Schneyder's police statement. Appellant was identified as Hickey throughout the trial. N.T., 7/10/1996, pp. 90, 94, 167; N.T., 7/11/1996, pp. 7, 50. Thus, without even referring to the other statements, the jury was informed that "X" was Appellant and the redaction failed to prevent the statement from incriminating Appellant. Miles. This error was aggravated by the fact that the trial court never instructed the jury that Elliott's statement was only admissible against the declarant/Elliott and could not be considered in the case against Appellant. Accordingly, we must find that the admission of the statement during both trials, as redacted, violated Appellant's right of confrontation as defined by Bruton and thus, any limiting instruction was simply insufficient to cure the prejudice to *306 Appellant.[18]
Having concluded that the court erred in the manner in which the statements were redacted, we must necessarily consider whether such error was harmless. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); see also Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972).
Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1998) (citations omitted); see also Schneble, 405 U.S. at 430, 92 S. Ct. 1056. It is well established that an error is harmless only if the appellate court is convinced beyond a reasonable doubt that there is no reasonable possibility that the error could have contributed to the verdict. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); see also Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552, 556 (1999). This is a burden that the Commonwealth must carry. Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166, 193 (1999)(citing Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994)).
It is clear that the admission of Elliott's hearsay statement, as redacted, prejudiced Appellant. Elliott's statement provided that "X" strangled Gaines and the jury could infer that "X" was Appellant. Thus, the statement clearly implicated Appellant in the crimes charged. Indeed, such evidence provided the only direct evidence of Appellant's participation in the criminal episode. Thus, any prejudice arising from the admission of the statement could not be de minimis.
Further, such evidence was not merely cumulative of other properly admitted evidence. *307 As referenced above, Elliott's statement provided the only direct evidence of Appellant's participation in the crime. While testimony established Appellant's presence outside of the crime scene, at or around the time in question, such evidence was merely circumstantial and did not establish that Appellant committed the crimes in question. Similarly, while testimony established Appellant's intent to rob someone, such testimony might not automatically lead a jury to conclude that Appellant robbed Gaines on the morning in question.
Lastly, the remaining evidence did not overwhelmingly establish Appellant's guilt. The evidence demonstrated Appellant's presence outside the crime scene, his relationship to Gaines, and suggested that there was a disagreement between Appellant and Gaines. However, this evidence was merely circumstantial. While we acknowledge that circumstantial evidence can be sufficient to convict a defendant of a crime, including first degree murder, in this case, Elliott's erroneously redacted statement could have been the evidence that prompted the jury to convict Appellant of the crimes in question. Thus, we cannot conclude that the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error so insignificant that the error could not have contributed to the verdict.
Accordingly, for the reasons stated herein, we reverse the judgment of sentence and remand this matter for a new trial as to all charges.[19]
Former Chief Justice FLAHERTY did not participate in the decision of this case.
Justice NEWMAN files a concurring opinion in which Chief Justice ZAPPALA joins.
Justice CASTILLE files a dissenting opinion.
Justice NEWMAN, concurring.
I agree with the lead opinion that the proper ultimate disposition of this case is to reverse the Judgment of Sentence imposed by the Court of Common Pleas of Philadelphia County and remand the matter to the court for a new trial. However, I write separately to express my evolving concerns with trying multiple defendants in the same proceeding when one or more, but not all, of the defendants have given a statement or statements to the police, which can be classified as confessionary. After much reflection on this issue, I now believe that in all cases where there are multiple defendants, where one or more of the defendants has given a confessionary statement, where one or more of the defendants who gave confessionary statements will not testify, and where the Commonwealth plans to introduce the confessionary statement(s), the trial should be severed to avoid any possibility of running afoul of the Confrontation Clause. The only limitation I would place on this proposition is that where there is no chance that the confessionary statement will prejudice the non-confessing co-defendant, it may be admitted and separate trials are not necessary.
The cornerstone case on the Confrontation Clause in this context is Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), in which the U.S. District Court for the Eastern District of Missouri tried Bruton and Evans together *308 for armed postal robbery. St. Louis police officers questioned Evans, who was incarcerated in the city jail in St. Louis, Missouri, awaiting trial on state criminal charges, about his involvement in the postal robbery. The officers obtained a confession from Evans, but did not give Evans any Miranda[1] warnings. The officers informed a postal inspector of their success with Evans; on two subsequent dates, the postal inspector questioned Evans, who again confessed and, during the second round of questioning, expressly implicated Bruton in the crime. The court permitted the prosecution to introduce the testimony of the postal inspector on Evans' confession, but instructed the jury that they could only consider the confession against Evans, as "it was inadmissible hearsay against [Bruton] and therefore had to be disregarded in determining [Bruton's] guilt or innocence." Bruton, 391 U.S. at 125, 88 S. Ct. 1620. The jury convicted both Bruton and Evans of the crime.
Bruton and Evans appealed to the Court of Appeals for the Eighth Circuit, which vacated the conviction of Evans because "the confessions before the jury were tainted and infected by the poison of the prior, concededly unconstitutional confession obtained by the local officer." Evans v. United States, 375 F.2d 355, 361 (8th Cir.1967). However, the Eighth Circuit affirmed the conviction of Bruton based on the limiting instruction given by the trial court. Bruton sought leave to appeal to the United States Supreme Court, which granted certiorari to determine "whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence." Bruton, 391 U.S. 123-124, 88 S. Ct. 1620, 20 L. Ed. 2d 476. The Court determined that, "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton's] guilt, admission of Evans' confession in this joint trial violated [Bruton's] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment." Id. at 126, 88 S. Ct. 1620.
The Court reasoned as follows:
Here the introduction of Evans' confession posed a substantial threat to [Bruton's] right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating [Bruton], in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for [Bruton's] constitutional right of cross-examination. The effect is the same as if there had been no instruction at all.
Id. at 137, 88 S. Ct. 1620 (emphasis added). In a Concurring Opinion, Justice Stewart opined that a "basic premise of the Confrontation Clause ... is that certain kinds of hearsay are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give." Id. at 138, 88 S. Ct. 1620 (Stewart, J., concurring) (internal citations omitted).
Justice White dissented, arguing that irrespective of the admissibility of Evans' confession as against Evans, "nothing in that confession which was relevant and material to Bruton's case was admissible against Bruton. As to Evans, it was inadmissible hearsay, a presumptively unreliable out-of-court statement of a nonparty *309 who was not a witness subject to cross-examination." Id. at 138, 88 S. Ct. 1620 (White, J., dissenting). However, Justice White would have upheld the conviction of Bruton, reasoning as follows: "Just as the Court believes that juries can reasonably be expected to disregard ordinary hearsay or other inadmissible evidence when instructed to do so, I believe juries will disregard the portions of a codefendant's confession implicating the defendant when so instructed." Id. at 142, 88 S. Ct. 1620. Justice White believed that the majority had "severely limit[ed] the circumstances in which defendants [could] be tried together for a crime which they [were] both charged with committing." Id. at 143, 88 S. Ct. 1620.
Justice White criticized the position of the majority as creating a potentially unfair criminal justice system in which separate trials could have vastly different consequences for "legally indistinguishable defendants." Id. Justice White explained his conception of what the majority had done as follows:
I would suppose that it will be necessary to exclude all extrajudicial confessions unless all portions of them which implicate defendants other than the declarant are effectively deleted. Effective deletion will probably require not only omission of all direct and indirect inculpations of codefendants but also of any statement that could be employed against those defendants once their identity is otherwise established. Of course, the deletion must not be such that it will distort the statements to the substantial prejudice of either the declarant or the Government. If deletion is not feasible, then the Government will have to choose either not to use the confession at all or to try the defendants separately.
Id. at 143-144, 88 S. Ct. 1620 (emphasis added). Justice White suggested that "[t]o save time, money, and effort, the Government might best seek a ruling at the earliest possible stage of the trial proceedings as to whether the confession is admissible once offending portions are deleted." Id. at 144, 88 S. Ct. 1620 (emphasis added).
While I am mindful of the concerns articulated by Justice White in his dissent in Bruton regarding the practical difficulties of the separate trials and the potential of varying consequences for legally indistinguishable defendants, I agree with his reading of the Majority Opinion in that case. This Court seemed to read Bruton consistently with that view as well. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859, 860 (1977) ("If a confession can be edited so that it retains its narrative integrity and yet in no way refers to defendant, then use of it does not violate the principles of Bruton") (emphasis added). In Johnson, the trial court rejected a statement that did not mention Johnson by name, but instead utilized the pronoun "we". The trial court ruled that the reference had to be deleted, reasoning that any reference that by "any stretch of the imagination" could refer to Johnson, had to be omitted. Id. at 861.
Muddying the waters in this difficult field of criminal jurisprudence is Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). In Marsh, over the objection of Marsh, a Michigan state court tried Williams, Martin, and Marsh jointly for two murders and an assault. The prosecution introduced a confession given by Williams to the police, in which Williams referred to both Martin and Marsh. The confession detailed a conversation that the three co-defendants had had in a car before the murders. When introducing the confession at trial, the *310 prosecutor redacted the confession to omit all references to Marsh and all references that anyone other than Williams and Martin were involved in the crime. Even though the confession did not refer in any way to Marsh, the court read to the jury an instruction admonishing them not to use the confession against Marsh. Marsh took the stand in her own defense and testified that she was in the car, but that she could not hear the conversation between Williams and Martin because the radio was too loud.
Later, during its closing argument, the prosecution linked Marsh's testimony to the confession of Williams as follows:
"It's important in light of [Marsh's] testimony when she says [Martin] drives over to [Williams'] home and picks him up to go over. What's the thing that she says? `Well, I'm sitting in the back seat of the car.' `Did you hear any conversation that was going on in the front seat between [Martin] and [Williams]?' `No, couldn't hear any conversation. The radio was too loud.' I asked [sic] you whether that is reasonable. Why did she say that? Why did she say she couldn't hear any conversation? She said, `I know they were having conversation but I couldn't hear it because of the radio.' Because if she admits that she heard the conversation and she admits to the plan, she's guilty of at least armed robbery. So she can't tell you that."
Id. at 205, n. 2, 107 S. Ct. 1702 (quoting Notes of Testimony from the original trial). Defense counsel for Marsh did not object to this statement. The jury convicted Marsh of the crimes, the Michigan Court of Appeals affirmed, and the Michigan Supreme Court refused to consider Marsh's appeal. Marsh then sought habeas corpus relief, which the District Court for the Eastern District of Michigan denied. However, the Court of Appeals for the Sixth Circuit reversed, "reject[ing] the approach which limits the appraisal of the inculpatory value of an extrajudicial statement to the face of the statement itself. Such an approach ignores the true incriminatory effect of the statement, and, with no countervailing benefit, sanctions the use of admittedly inadmissible evidence...." Marsh v. Richardson, 781 F.2d 1201, 1212 (6th Cir.1986). Accordingly, the Sixth Circuit held that the statement of the prosecutor linking Marsh to the Williams confession violated the Confrontation Clause. The United States Supreme Court granted certiorari to address how Bruton applies to situations where the confession does not refer to the co-defendant.
The Court noted the distinction between Bruton and Marsh, in that the confession in Bruton "expressly implicated" Bruton as the accomplice of the confessing co-defendant. Richardson v. Marsh, 481 U.S. at 208, 107 S. Ct. 1702. The Court held that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211, 107 S. Ct. 1702. The Court refused to rule "on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Id. at 211, n. 5, 107 S. Ct. 1702.
Justice Stevens, joined by Justices Brennan and Marshall, filed a vigorous dissent, in which he argued that, pursuant to Bruton, there should be no distinction between "confessions that directly identify the defendant and those that rely for their inculpatory effect on the factual and legal relationship of their contents to other evidence before the jury." Id. at 212, 107 S. Ct. 1702 (Stevens, J., dissenting). Justice Stevens wrote that, in his opinion, not *311 all co-defendant confessions expressly mentioning the defendant should be excluded or require separate trials because some do not serve to prejudice the defendant. However, where the confession of the co-defendant is "powerfully incriminating" and would, thus, prejudice the defendant, whether expressly or only by reference to other evidence, admission of the confession creates a "substantial ... and constitutionally unacceptable risk that the jury, when resolving a critical issue against [Marsh], may have relied on impermissible evidence." Id. at 214, 216-217, 107 S. Ct. 1702.
Responding to the concern that separate trials waste judicial resources and lead to vastly different consequences for legally indistinguishable defendants, the Marsh dissent stated:
The facts that joint trials conserve prosecutorial resources, diminish inconvenience to witnesses, and avoid delays in the administration of criminal justice have been well known for a long time. It is equally well known that joint trials create special risks of prejudice to one of the defendants, and that such risks often make it necessary to grant severances. The Government argues that the costs of requiring the prosecution to choose between severance and not offering the codefendant's confession at a joint trial outweigh the benefits to the defendant. On the scales of justice, however, considerations of fairness normally outweigh administrative concerns.
* * *
The [majority] expresses an apparently deep-seated fear that an even-handed application of Bruton would jeopardize the use of joint trials. This proposition rests on the unsupported assumption that the number of powerfully incriminating confessions that do not name the defendant is too large to be evaluated on a case-by-case basis. The Court then proceeds to the ostensible administrative outrages of the separate trials that would be necessary, contending that it would be unwise to compel prosecutors to bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand. This speculation also floats unattached to any anchor of reality. Since the likelihood that more than one of the defendants in a joint trial will have confessed is fairly remote, the prospect of presenting the same evidence again and again is nothing but a rhetorical flourish. At worst, in the typical case, two trials may be required, one for the confessing defendant and another for the nonconfessing defendant or defendants. And even in that category, presumably most confessing defendants are likely candidates for plea bargaining.
Id. at 217, 219, n. 7, 107 S. Ct. 1702 (internal quotations and citations omitted).
I agree with Justice Stevens' dissent in Marsh; the goal of our system of criminal justice is to ensure that criminal defendants receive fair trials. Administrative concerns, while uncontrovertibly important, must not work to deprive a defendant in jeopardy of losing his or her life or liberty from his or her fundamental right to cross-examine adverse witnesses. In fact, I would go a step farther than Justice Stevens. I believe that if a confessionary statement has the potential to prejudice a non-confessing defendant, the trial should be severed, even if the confession is not "powerfully incriminating." It is potentially equally wasteful of judicial resources to *312 permit a joint trial in these situations for the reason that a mid-trial severance or reversal on appeal expends the resources of a court much more than utilizing separate trials from the outset. This consideration, coupled with the potential unfairness to a criminal defendant in a joint trial, leads this Justice to the conclusion that where a confessionary statement of one or more non-testifying co-defendants has the potential to prejudice a non-confessing co-defendant, the trial of the non-confessing co-defendant should proceed separately.
In the case sub judice, the prosecutor read the preliminary hearing testimony of Schneyder in open court. At the first trial, the Commonwealth read Schneyder's preliminary hearing testimony to the jury:
[Response continued]: He [Elliott] said that Lillian opened the door and he said that Lillian gave X a hard way to go. He said that it was him, another person and X, and that they went into the house and Lillian didn't want to give up any stuff and X told him, Wayney, to grab her, and then he grabbed her and held her while another person tied her up. He said that X strangled her.
Notes of Testimony, 11/21/1995, at 24-25. At the second trial, in the portion of the statement containing Elliott's hearsay statement, the name of Michael Overby (Overby) was again changed to "X." As the lead opinion notes, the jury was clearly aware that "X" referred to Overby. This statement undoubtedly prejudiced Overby. Accordingly, as does the lead opinion, I would reverse the Judgment of Sentence and remand the matter for a new trial on all counts.
Chief Justice ZAPPALA joins in this concurring opinion.
Justice CASTILLE, dissenting.
The Court's grant of a new trial today under authority of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), results from a misapprehension of the material facts; a troubling application of this Court's already-embattled relaxed waiver practice to reach a fictional claim the Court perceives sua sponte; a consequent imposition of a burden of proof upon the appellee which it could not possibly have foreseen and which the Court affords the appellee no opportunity even to attempt to discharge; and, finally, a misapprehension of the Sixth Amendment Confrontation Clause jurisprudence that governed at the time of the 1995-1996 trials in this matter, which necessarily calls into question the continuing vitality of this Court's recent decision in Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485 (1999). I am compelled to respectfully dissent.
The Court goes to rather extraordinary lengths to overturn the verdict in this capital case. First, rather than review the relevant claim of ineffective assistance of trial counsel which is actually forwarded and argued by the parties, the Court invokes the relaxed waiver practice to sua sponte convert that issue into a claim sounding in trial court error under Bruton. The Court then declares that the Bruton issue it prefers to decide was preserved by contemporaneous objection below, when the record conclusively demonstrates that it was not. By sua sponte altering the issue actually raised and briefed by the parties in favor of its own waived issue, the Court imposes a new and unforeseeable burden upon appellee, the Commonwealth, to prove harmless error beyond a reasonable doubt. Yet the Court affords the Commonwealth no opportunity even to attempt to carry the retroactive burden imposed upon it. Having dispensed with actual advocacy from the parties on the dispositive issue it raises, the Court plows ahead and ultimately concludes that the Commonwealth failed to *313 carry its unknowable burden. Although appellate courts have the power to affirm judgments below for reasons of record not forwarded by the parties, the Court today takes the extraordinary step of reversing a capital judgment upon an issue neither raised here nor preserved below.
Having devised its own claim of "trial court error" under Bruton, altered the review standard, reversed the ultimate burden to prove prejudice, and then proceeded in its solipsistic course unfettered by what actually occurred at trial below and is actually raised on appeal, the Court's substantive resolution of the Bruton claim is, predictably enough, problematic. In holding that co-defendant Dwayne Elliott's redacted statement is defective under Bruton, the Court does not look at the face of the statementdespite the fact that the Court purports to recognize that such is the required analysis under the state of Bruton law in trials such as these, which predated Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)but instead engages in speculation on what the juries might have surmised or inferred from other evidence introduced at the trials. By looking to evidentiary inferences or "contextual implications" outside Elliott's redacted statement to resolve its Bruton claim, the Court retroactively applies the analytical approach pioneered in Gray notwithstanding that this Court has already held that Gray established a new constitutional rule that should not be applied retroactively. See Commonwealth v. Lopez, supra.
If the Court were to overrule Lopez and state that it was applying Gray retroactively in granting relief, its analytical approach would possess the virtue of internal consistency. The decision would still be wrongsince no Bruton claim was even preserved for retroactive application and since Gray obviously established a new constitutional rulebut it would at least be internally consistent. Unfortunately, the Court's approach introduces both inconsistency and uncertainty into the status of pre-Gray Bruton law in Pennsylvania. The Court cannot have it both ways: if it is pre-Gray law that applies, as the Court says, then the analysis of the propriety of the non-objected-to redaction here is limited to the statement. And, since appellant does not go by the name of "Mr. A" or "Mr. X," Elliott's redacted statement, which contains no references to appellant by name (or even by nickname), obviously was acceptable in 1995 and 1996. Indeed, the manner in which Elliott's statement was redacted is materially identical to redactions that were approved by this Court in decisions that were contemporaneous with the trials in this matter. That fact, no doubt, explains why trial counsel, who had to try this case without the luxury of Gray-based hindsight, raised no objection.
The effect of the Court's nimble reconstitution of the records and the issue presented, its reduction of the advocates' briefs to irrelevancies, and its facility in massaging the governing law with the liniment of its future insight, is an unnecessary, revisionist, and erroneous Bruton holding. When all of its alchemy is said and done, the Court essentially holds that, at the time of appellant's trials in 1995 and 1996i.e., years before Gray was argued or decided and at a time when Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987) was the U.S. Supreme Court's most recent pronouncement on BrutonU.S. Supreme Court decisional law dictated that it was improper to employ a symbol such as "X" in place of the defendant's name, when redacting a non-testifying co-defendant's confession for Bruton purposes.
*314 The lead opinion holds that the trial court "erred" under Bruton when it supposedly admitted into evidence at both trials, via the preliminary hearing testimony of an unavailable witness, the statement of appellant's co-defendant, Elliott, which had originally named appellant as the person who strangled the victim, but which was redacted to substitute the letters "X" or "A" whenever appellant's name appeared. As redacted, Elliott's statement, on its face, did not implicate appellant in the slightest. The statement requires inferences from or linkage to other evidence at the trials detailing appellant's role in the murder to reveal that the "X" or "A" referred to in the statement was appellant. Although the redaction here was not so obvious an alteration as that at issue in Gray (where either the word "deleted" or a blank space was substituted for the defendant's name), I do not dispute that the redaction would be problematic under the reasoning employed in the 5-4 majority decision in Gray. Thus, if appellant had anticipated and preserved a Gray claim which the trial court had overruled, and if Gray applied retroactively, the trial court may well have "erred" in admitting Elliott's statement. But, in addition to the fact that this Court held in Lopez that Gray does not apply retroactively, appellant in point of fact never objected that the form of redacting Elliott's statement violated Bruton, much less did he anticipate Gray; i.e., he never argued that the substitution of letters for his name facially incriminated him in the same way as the use of the defendant's proper name in Bruton, even though it required inference or linkage by the jury to draw the incriminating connection.
To the extent that the lead opinion states that trial counsel "objected to the admission of [Elliott's] statement and then also objected to the redaction," and thereby preserved "the question of trial court error" under Bruton, op. at 300 n. 12, it has misapprehended the record, for no such objection was forwarded. It appears that the Court has confused Elliott's redacted statement with the police statement of witness Nicole Schneyder, which included an account of a conversation she had with appellant on the day before the murder. At both trials, appellant objected not to the alteration of co-defendant Elliott's statement, but to the alteration of Schneyder's statement. Schneyder's statement had been introduced during her testimony at the preliminary hearing, where she was subject to cross-examination. Schneyder recanted by the time of the first trial, however, and therefore her preliminary hearing testimony, which included the account of the conversation with appellant which was included in her police statement, was introduced at both trials through the testimony of Detective Dominic Mangoni.
In reciting Schneyder's preliminary hearing testimony, the detective inadvertently substituted the letter "X" for appellant's name and nickname in Schneyder's police statement accounting for her conversation with appellant. See N.T. 11/21/95, p. 64-66; N.T. 7/12/96, p. 22. In short, the detective, perhaps wrongly assuming that since Elliott's statement had been redacted to remove references to appellant, Schneyder's needed to be altered too, effectively "redacted" Schneyder's testimony and account. Appellant's trial counsel, who was obviously alert to this, objected because the detective's "redaction" of witness Schneyder's statement "filled in the equation for the jury," N.T. 11/21/95, p. 64i.e., it could lead the jury to infer that Elliott in fact was referring to appellant when the letter "X" was used in his redacted statement. The potential harm was more obvious because, after the objection, the detective corrected himself *315 and re-read Schneyder's testimony to refer to appellant by name and nickname, rather than by the letter "X."
Thus, the nature of the objection actually lodged by appellant at these trials was not that co-defendant Elliott's statement was improperly redacted under Bruton because the letter "X" was used, as the Court now mistakes, but rather that the statement of unavailable witness Schneyder, who had been subject to cross-examination, was erroneously altered by the detective and that appellant was prejudiced because that alteration could lead the jury to connect appellant to the "X" referred to in Elliott's statement, even though Elliott's statement was not introduced against appellant. Appellant's actual objection, thus, did not have to do with Bruton or the adequacy of the redaction of Elliott's statement at all. The objection to Mangoni's rendering of Schneyder's testimony was effectively identified and forwarded by trial counsel and certainly warranted a response from the trial court. But it is not the ineffective assistance of counsel claim appellant now raises, which assails counsel for failing to object to the redaction of Elliott's statement under Bruton, and it is decidedly not the claim of Bruton trial court error that the lead opinion raises sua sponte, which assails the trial court for allegedly "admitting" Elliott's improperly redacted statement. Moreover, unlike the issue the Court formulates, the claim that trial counsel raised was one that bears some relationship to what actually occurred at trial, and counsel's objection led to an immediate response from the trial court. Thus, immediately after appellant objected to Mangoni's substitution of the letter "X" for appellant's name and nickname in Schneyder's statement at the second trial, the trial court instructed the jury as follows:
Members of the jury, when a statement is read by someone, it is evidence against that person only. There is a witness who is out of court and it's bringing in for a very limited purpose, just to see whether or not it's different than the way she testified at the first hearing, that's all. So with that, I'll permit the proceeding to go forward.
N.T. 7/12/1996, at 22. Apparently satisfied with this response, trial counsel did not object to the adequacy of this charge under Bruton, or propose a different or supplemental charge.[1]
I assume that the redaction of Elliott's statement, as opposed to the redaction of Schneyder's testimony which the Court has apparently confused with Elliott's statement, was either undertaken by the prosecutor with the input of appellant's trial counsel, or that trial counsel saw no legitimate issue arising from the prosecutor's proposed redaction. Whatever may have been the circumstances surrounding the redaction, the simple, indisputable and unavoidable fact is that no issue involving its adequacy under Bruton was ever raised before the trial court, such that the trial court was called upon either to approve or disapprove the alteration. Thus, the unequivocal answer to the metamorphosed question sua sponte raised by the lead opinionDid the trial court err in "admitting" *316 the redacted statement?can only be, "No, it did not."
The trial judge is not an advocate, but a neutral arbiter interposed between the parties and their advocates, guiding the course of the trial, and deciding the legal issues that are brought to his attention by the parties through timely and proper motions, objections, and argument. With certain rare exceptionsnone of which are involved herethe trial judge is not duty-bound to raise additional arguments on behalf of one party or another such that, if and when the judge fails to do so, he has "erred." In those instances where the law does not require the judge to take some affirmative action, and the issue is not raised before the judge, there cannot have been any "trial court error." In our system of jurisprudence, the "error" which arises from foregone objections and arguments, if there is one, rests with the belatedly aggrieved party who failed to bring the matter to the judge's attention. Unlike the lead opinion and the concurrence, appellant understands this fundamental truth; that is obviously why he raises his Bruton claim exclusively under the rubric of counsel ineffectiveness.
I believe that our review of alleged "errors" made by trial judges should be confined to their actual decisions and to the known and knowable legal principles which actually governed at the time of trial. One could surmise that most trials would be deemed rife with reversible trial court error if reviewing courts blithely suspended principles of issue preservation and ignored principled limitations governing the retroactive application of future decisions. Given the ever-changing landscape in micro-managed capital cases,[2] there probably is not a capital trial in the land that could survive a scrutiny conducted in the hindsight of future decisions. But no rational system of review can operate in such a back-to-the-future fashion. The Court's reversal of the judgment below on the basis of a non-existent and non-raised error calls to mind why we abrogated fundamental error review almost thirty years ago, i.e., because that theory "never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended." Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116-17 (1974).
The Court's profound error in detecting a preserved Bruton claim where none exists is compounded by its torturing of the appellate pleadings in order to reach that non-existent claim. I disagree with the Court's apparent belief that the relaxed waiver doctrine permits conversion of claims of trial counsel ineffectiveness into fictional claims of trial court "error" for failing to sua sponte raise novel claims on behalf of a party.
Unlike the Court, appellant's capable appellate lawyer, who is other than trial counsel, recognizes and asserts that appellant never objected to the manner in which Elliott's statement was redacted under Bruton. Indeed, counsel specifically and repeatedly frames his issue as one of trial counsel's ineffectiveness for failing to object to the manner of redaction and failing to seek severance. This framing of the issue, including the accurate factual averment that trial counsel did not object, is repeated in the Statement of Questions Involved, Appellant's Brief at 3; in the Summary of the Argument, id. at 23; in *317 the Argument heading, id. at 41; in the actual Argument itself, see, e.g., id. at 45 ("Trial counsel was ineffective when he failed to object to the manner of redaction") and 48 (same); and in the conclusion to the Brief. Id. at 87.
In developing his distinct Sixth Amendment claim sounding in the right to effective counsel, appellant cites Gray as supposed proof of the inadequacy of the redaction here, and also avers that the trial court "erred in the manner in which the [statements] were redacted." The latter statement is inaccurate since, as noted, the trial court did not perform the redaction of Elliott's statement and, as appellant concedes, trial counsel never objected to it. The inaccuracy is irrelevant to the claim appellant actually raises, however, since appellant's legal claim sounds in trial counsel's alleged ineffectiveness. It does not matter, for appellant's purposes, whether the redaction was accomplished by the court or the prosecutor, or even the parties in consultation; he faults trial counsel for failing to see to it that the statement was otherwise edited or excluded, or a separate trial secured. Of course, it is common to raise claims of counsel ineffectiveness in this fashion, i.e., by focusing on an event at trial and questioning the objective reasonableness of counsel's handling of the issue. Appellant's claim of counsel ineffectiveness thus is cogent, focused and reviewable.
The Commonwealth, in an able response to which the Court blinds its eyes, joins the issue actually raised by appellant and seizes upon the flaw in appellant's relying upon the future decision in Gray to prove trial counsel ineffective. Thus, the Commonwealth cites settled law and argues that counsel cannot be deemed ineffective for failing to anticipate Gray. See, e.g., Lopez, 739 A.2d at 499 n. 18; Commonwealth v. Fowler, 550 Pa. 152, 703 A.2d 1027, 1029 (1997). In this regard, the Commonwealth accurately notes that, at the time of the trials here, this type of redaction was permissible under the decisions of the U.S. Supreme Court and of this Court, so long as a Bruton instruction accompanied the redaction.
The Court concedes that appellant states his claim as one of counsel ineffectiveness, but converts it into one of trial court error notwithstanding, by asserting that, "in the argument portion of his brief [appellant] also raises and develops the assertion that the trial court erred in admitting the statements given the manner in which they were redacted [and] in light of [a]ppellant's full development of this issue in a direct capital appeal matter, it is unnecessary to address the issue in terms of trial counsel's ineffectiveness." Invoking this Court's amorphous direct capital appeal relaxed waiver practice, the lead opinion concludes that "it would be inappropriate... to decline review of the issue related to the alleged trial court error, merely on the basis of what amounts to appellant's awkward phrasing of the Statement[ ] of Questions Involved." Op. at 300 n. 12.
This is a startling and rather implausible excuse for the Court's unilateral action here. Appellate counsel should not be erroneously accused of "awkward[ly] phrasing" his issue, much less should his appellate litigation decisions be sua sponte second-guessed, merely because the Court for some odd reason is more interested in a fictional claim it tortures from the record in order to retroactively apply future law. To repeat, the claim of trial court Bruton error that the Court conjures is not one that was available to appellate counsel as a preserved claim of error because it was never raised in the court below. Moreover, it was not raised *318 below for obvious reasons: the Gray decision, which is essential to the Court's retrofitted inference/contextual approach to Bruton, did not yet exist. Counsel acted in a thoroughly responsible fashion in briefing his appellate claim in the only appropriate manner actually available.
Most claims of counsel ineffectiveness having to do with record matters at trial (as opposed to claims involving failures of investigation or preparation) necessarily are derivative of events at triali.e., counsel is faulted for failing to object, or for failing to raise the most appropriate objection, etc. Cf. Commonwealth v. (Craig) Williams, 566 Pa.553, 782 A.2d 517, 525 n.5 (2001). This Court has routinely reviewed such claims of counsel ineffectiveness on direct appeal without sua sponte converting them into waived and fictional claims of alleged "trial court error." See, e.g., Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1083 (2001); Commonwealth v. (Christopher) Williams, 554 Pa.1, 720 A.2d 679, 685 (1998); Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1304 (1994).
Some better explanation for the Court's alchemy is demanded because whether a claim is reviewed as a claim of counsel ineffectiveness or is converted into a fictional claim of "trial court error" may be outcome-determinative. As Mr. Justice Cappy noted in Howard:
[A] defendant is required to show actual prejudice [in order to prevail on a claim of ineffective assistance of counsel]; that is, that counsel's ineffectiveness was of such magnitude that it "could have reasonably had an adverse effect on the outcome of the proceedings." . . . This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard ... states that "[w]henever there is a `reasonable possibility' that an error `might have contributed to the conviction,' the error is not harmless." This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the [ineffectiveness] prejudice standard, which requires the defendant to show that counsel's conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant's Sixth Amendment right to counsel....
645 A.2d at 1307 (citations omitted). This distinction in the treatment of claims of error as opposed to claims sounding in a deprivation of counsel is not arbitrary, but rather is an ineluctable function of the essential difference between a preserved claim of trial court error, and a Sixth Amendment claim, not raised before, sounding in ineffective assistance of counsel.
As Mr. Justice Cappy's teaching in Howard also suggests, judicial conversion of a claim of counsel ineffectiveness into a fictional claim of trial court error has a practical effect on the partiesan effect that the Court today cavalierly ignores. In proceeding to award relief in this case, the lead opinion ultimately concludes that the Commonwealth failed to carry its burden of proving harmless error. Op. at 307. But the Commonwealth most likely had no clue that such a burden existed, since it understandably responded to the claim of counsel ineffectiveness that appellant actually *319 raised, and not the fictional claim of "trial court error" that the Court has devised on appellant's behalf. Even in a capital case, the government should be entitled to fair treatment. Both as a matter of fundamental fairness and as a matter of ensuring quality appellate decision-making, when a court perceives and raises an issue sua sponte that alters the review standard and imposes a new and unanticipated burden on a party, the court should, at a minimum, permit the affected party an opportunity to address its new burden. A court looking at a cold record, without benefit of argument, lacks the trained eye of the interested advocate. Apparently, it never even occurs to the Court that the record upon harmless error review might appear differently if it had the benefit of actual advocacy on the dispositive question it has injected. The Court's alchemy has waylaid the Commonwealth and deprived it of an opportunity to be heard. The Commonwealth, like the "erring" trial court, simply falls victim to the Court's thunderbolt today.
The Court's issue conversion and faulting of the trial court for failing to sua sponte raise an issue are dire enough. What is worse is that, on the merits of the Bruton claim it raises, the Court evaluates the fictional "trial court error" not pursuant to the state of the law which governed at the time of appellant's trial, but in a fashion that obviously derives from the U.S. Supreme Court's subsequent decision in Gray. The lead opinion's survey of Bruton law is accurate so far as it goes. It notes that Bruton held that a defendant is deprived of his Sixth Amendment right of confrontation when a confession of a nontestifying co-defendant is introduced at their joint trial and explicitly names and powerfully incriminates the defendant, even if the jury is instructed to consider the confession only against the co-defendant; that, in Richardson, the Court declined to extend the Bruton rule to co-defendant confessions that incriminate the defendant only by inference or linkage to other evidence; and that, most recently, the Gray Court acknowledged that Richardson had placed statements that incriminate by mere inference entirely outside the scope of Bruton, but altered that analysis so that statements which, despite redaction, still "obviously refer directly to someone, often obviously the defendant, and involve inferences that a jury ordinarily could make immediately[,]" violate Bruton's protective rule. In addition, the lead opinion accurately notes that this Court's Confrontation Clause jurisprudence has been coterminous with federal law. Thus, in Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977), this Court held that the Commonwealth may introduce into evidence the redacted statement of a non-testifying co-defendant at a joint trial so long as the statement does not expressly refer to the defendant. Also, prior to Gray, this Court had held in Commonwealth v. Lee, 541 Pa. 260, 662 A.2d 645 (1995), cert. denied, 517 U.S. 1211, 116 S. Ct. 1831, 134 L. Ed. 2d 935 (1996) and again in Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295 (1996) that the substitution of the letter "X" or a similar symbol for the defendant's name did not violate Bruton. (It should be noted that, although the lead opinion relies upon Miles, that decision was not handed down until July 31, 1996, which was after both trials in this case.)
Despite recognizing that, under pre-Gray law, co-defendant statements that incriminate only by inference fall outside the scope of Bruton, the lead opinion inexplicably holds that Elliott's redacted statement violates Bruton because it "expressly implicated [a]ppellant in the crime in violation of the Confrontation Clause." Op. at 303. This simply is not so. As redacted, *320 Elliott's statement never referred to appellant by name or even by nickname; instead, the letters "A" or "X" were substituted for his name. A link to appellant could only be found by looking to other evidence at the trials which detailed the primary role appellant played in strangling Lillian Gaines. Tellingly, in finding that Elliott's statement "expressly implicated" appellant, both the lead opinion and the concurrence look not to the face of the statement, but instead to other events at these trials: specifically, Detective Mangoni's botched reading of Schneyder's preliminary hearing testimony. Thus, in reviewing the first trial, the lead opinion emphasizes that, when Mangoni read Schneyder's account of her conversation with appellant and inadvertently substituted the letter "X" for appellant's name, "the `X' clearly referred to [a]ppellant since the statement was identical to the statement attributed to him in Schneyder's previous statement." Op. at 305. This error was compounded, the lead opinion reasons, when, immediately after counsel's objection to the Detective's lapse, Mangoni re-read the statement, this time replacing the "X" with appellant's name. On this record, the lead opinion determines that the jury could "surmise" or "reasonably infer"i.e., that the jury could conclude from context or inference or "evidentiary links"that the "X" referred to in Elliott's statement was appellant, even though nothing in that statement qua statement remotely suggested any such thing. Continuing in its inference/evidentiary linkage analysis, the lead opinion next reasons that the error at the second trial, the trial which resulted in appellant's murder conviction, was even more egregious because the jury was apprised that "X" was "Hickey," appellant's nickname, when Mangoni read Schneyder's police statement, and appellant had already been identified as "Hickey" throughout that trial. Id.
In my view, the Court's finding of a Bruton violation based not upon the co-defendant's actual statement, but upon inferences that the juries may have drawn from other events at these trials is patently erroneous under the pre-Gray state of the law that prevailed when these trials were conducted. At that time, the most recent and governing U.S. Supreme Court decision was Richardson. In Richardson, although the co-defendant's confession was redacted to remove all reference to the defendant, the defendant still argued that admission of the co-defendant's confession violated her confrontation rights because it implicated her in the crime when linked with other evidence. As this Court recently noted in Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845, 848 (2001), the Richardson Court "expressly rejected the theory of contextual implication, recognizing the important distinction between co-defendant confessions that expressly incriminate the defendant and those that become incriminating only when linked to other evidence properly introduced at trial." In rejecting the theory, the Richardson Court noted that, when incrimination is merely inferential, "it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." Richardson, 481 U.S. at 208, 107 S. Ct. 1702. Thus, at the time these cases were tried, if linkage with other evidence was required for the co-defendant's statement to incriminate the accused, a proper limiting instruction was sufficient to satisfy Bruton. Importantly for present purposes, the Richardson Court also was careful to express "no opinion" on the admissibility of a confession where the redaction consists of replacing the defendant's name "with a symbol or neutral pronoun." Id. at 211 n. 5, 107 S. Ct. 1702. That, of course, is the form of redaction that was employed, without objection below, here.
*321 The High Court's subsequent decision in Gray expressly reaffirms that such was the state of pre-Gray law. The majority in Gray noted that its task was to "decide a question that Richardson left open, namely, whether redaction that replaces a defendant's name with an obvious indication of deletion, such as a blank space, the word "deleted," or a similar symbol, still falls within Bruton's protective rule." 523 U.S. at 192, 118 S. Ct. 1151 (emphases supplied). In ultimately holding, for the first time, that such a redaction did fall within Bruton, the Court candidly acknowledged the tension between that new holding and the previously prevailing law under Richardson. Indeed, this was so much the case that the Gray majority expressly "conceded" both that Richardson had "placed outside the scope of Bruton's rule those statements that incriminate inferentially" and that in a situation where a mere symbol of redaction was used, such as in Gray (and such as occurred here), "the jury must use inference to connect the statement ... with the defendant." 523 U.S. at 195, 118 S. Ct. 1151. The Court then went on to explain why its departure from Richardson's no-inferences rule was warranted. In short, then, it was not until Gray that the U.S. Supreme Court held and, even then, only by a narrow 5-4 marginthat inferences from other parts of the record could properly be employed to prove a Bruton violation.
In this case, Elliott's redacted statement, viewed on its own, did not implicate appellant at all. As corroborated by the analyses employed by the lead opinion and the concurrence here, it requires reference to and inferences from other evidence to find anything in the redacted statement that could be said to implicate appellant. In light of this indisputable fact, the grant of relief here is nothing short of unfathomable.
I realize that the lead opinion has attempted to obscure its reliance on the analytical approach approved for the first time in Gray by moving its discussion of Gray to a footnote and insisting that it "does not rely on the holding in Gray" but, rather, looks to the decision "only for the [U.S. Supreme] Court's clarification of the distinction between Bruton and [Richardson v.] Marsh." Id. But I fear that the lead opinion "doth protest too much," William Shakespeare, Hamlet, Prince of Denmark, act 3, sc. 2, and its actual analysis, which looks beyond Elliott's statement to consider other evidence at the trials and speculates as to what the juries might have "surmised" from that other evidence, thoroughly "informs against" its protestation. Id., act iv, sc. 32. The statement "X and I (or A and I) committed a crime" does not facially incriminate anyone but the speaker. In 1995 and 1996, replacing the defendant's name with a letter was a common method of redaction in this Commonwealthone which this Court, when Gray was truly "absent" from its consideration because it did not yet exist, repeatedly approved.
It may well be true, as the lead opinion concludes, that when Detective Mangoni inadvertently referred to appellant as "X" when reciting Schneyder's preliminary hearing testimony, the jury could have "reasonably infer[red]" that the "X" that had been used in Elliott's statement also referred to appellant. But the redaction of Elliott's statement did not remotely convey that point on its own; instead, inference or linkage to Mangoni's testimony is required to make that leap. That being so, under Richardson, which was the governing authority at the time of the trials here, Elliott's redacted statement was properly admissible with a limiting instructionwhich no doubt explains why appellant's counsel did not object to the redaction. Furthermore, when the detective *322 erroneously redacted Schneyder's testimony, including her reference to appellant by name and nickname, appellant's trial counsel acted effectively in forwarding a timely and specific objection, to which the trial court responded in a fashion which appellant has not challenged.
Since the Court's Bruton analysis is so obviously erroneous under Richardson, I fear that what is really at work here is a sub silentio overruling of this Court's decision in Commonwealth v. Lopez on the question of whether Gray applies retroactively. The lead opinion recognizes that this Court in Lopez held that Gray constituted a new rule of law which cannot apply retroactively. Op. at 302-03 n. 15. However, three Justicesall of whom join in the Court's determination today to reverse the trial court's judgment of sentence and remand for a new trialdisagreed with the majority in Lopez on that point, stating that they "view[ed] the United States Supreme Court's decision in Gray as a rational application of the principles enunciated in Bruton rather than as a change in the law." 739 A.2d at 507. In employing a Gray-dependent "contextual implication" analysis here, rather than the analysis dictated by the Richardson standard that actually governed in 1995-1996, it may be that the Court intends to sub silentio overrule the Lopez majority in favor of the failed concurrence.
Given this prospect, it is worth offering some brief comment on whether Gray should apply retroactively, notwithstanding that Lopez already said that it does not. I believe that Mr. Justice Nigro got it right in his majority opinion in Lopez when he held that Gray represented a change in the law. The U.S. Supreme Court's non-retroactivity/new rule jurisprudence, which derives from Justice O'Connor's seminal decision in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), does not turn upon whether a new decision involves a "rational application" of principles found in previous precedents. Indeed, most if not all constitutional decisions from the High Court at least attempt to follow, apply, and build upon what has gone before; and few, if any, of those decisions could be accused of "irrationally" departing from prior law. Instead of employing the "rational application" test for retroactivity posed by the Lopez concurrence, the U.S. Supreme Court's rather more sophisticated analysis focuses on whether the constitutional rule invoked by the defendant was "dictated by precedent" in existence at the relevant time. 489 U.S. at 301, 109 S. Ct. 1060 (emphasis original). If reasonable jurists could have disagreed over the point, the constitutional rule is new and cannot be applied retroactively. Lambrix v. Singletary, 520 U.S. 518, 528, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997) (new rule is not dictated by precedent unless it would be "apparent to all reasonable jurists"); Caspari v. Bohlen, 510 U.S. 383, 393, 114 S. Ct. 948, 127 L. Ed. 2d 236 (1994) (same); Gilmore v. Taylor, 508 U.S. 333, 347, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (O'Connor, J., concurring) (employing "susceptible to debate among reasonable jurists" test for new rule). Accord Williams v. Taylor, 529 U.S. 362, 409-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (Majority Opinion of Court by O'Connor, J., on this point) (discussing dictated by precedent/ reasonable jurist test); id. at 381-84, 120 S. Ct. 1495 (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ. on this point) (same).[3]
*323 It would be difficult in the extreme to characterize the contextual implication rule that emerged from Gray, and which the lead opinion applies here, as one that was dictated by the existing Bruton/Richardson precedent. First, as Mr. Justice Breyer explicitly noted in the Gray majority opinion, the question before the Court in that casei.e., "whether redaction that replaces a defendant's name with an obvious indication of deletion, such as a blank space, the word `deleted' or a similar symbol, still falls within Bruton's protective rule"was "a question that Richardson left open." 523 U.S. at 192, 118 S. Ct. 1151. Moreover, the Gray majority admitted that Richardson in fact had placed such statements, which require inferences to incriminate, outside of Bruton. Thus, Gray explicitly broke with previous precedent. Finally, no less than four reasonable jurists who participated in the Gray decision (Chief Justice Rehnquist, as well as Justices Scalia, Kennedy and Thomas) disagreed over whether the majority view in Gray was consistent with the principles undergirding the Bruton decision, much less whether the majority's view was "dictated" by that precedent and Richardson. In my view, then, Justice Nigro was unquestionably correct in Lopez when he concluded that Gray was a new rule. It is wrong for the Court today to contradict that holding with nary a word of explanation or illumination.
Moreover, even if Gray were deemed a retroactively applicable decision, appellant would not be entitled to its benefit. "Case law is clear ... that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at `all stages of adjudication up to and including the direct appeal.'" Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649, 652 (2001) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983)). Sub judice, appellant, having failed to advance any argument at trial approximating the then-nonexistent Gray ruleindeed, appellant made no attempt even to challenge Elliott's statement under then-prevailing Bruton lawis not entitled to the retroactive benefit of Gray on appeal.
Finally, I add some brief comment on the concurring opinion authored by Madame Justice Newman. Like the lead opinion, the concurrence apparently views the issue here as one sounding in trial court error under Bruton/Gray, not as the claim of counsel ineffectiveness briefed by the parties, and then analyzes the claim under a contextual implication approach. Concurring op. at 312. In my view, the concurrence commits the same multiple errors as the lead opinion in this regard.
The concurrence goes on to address a broader question, also not argued by the parties, of whether joint trials should be done away with in instances where Bruton issues may arise. Id. at 307. The concurrence expresses the view that "in all cases where there are multiple defendants, where one or more of the defendants has given a confessionary statement, where one or more of the defendants who gave confessionary statements will not testify, and where the Commonwealth plans to introduce the confessionary statement(s), the trial should be severed to avoid any possibility of running afoul of the Confrontation Clause." Id. at 307. The only limitation the concurrence would place on such a blanket rule is that "where there is no chance that the confessionary statement will prejudice the non-confessing co-defendant, it may be admitted and separate trials are not necessary." Id. at 307.
In response, I would note initially that this view, which derives from the dissenting opinion in Richardson, was expressly *324 rejected by the six-justice majority in that case, with the following analysis:
One might say, of course, that a certain way of assuring compliance [with Bruton ] would be to try defendants separately whenever an incriminating statement of one of them is sought to be used. That is not as facile or as just a remedy as might seem. Joint trials play a vital role in the criminal justice system, accounting for almost one-third of federal criminal trials in the past five years. Many joint trialsfor example, those involving large conspiracies to import and distribute illegal drugsinvolve a dozen or more codefendants. Confessions by one or more of the defendants are commonplaceand indeed the probability of confession increases with the number of participants, since each has reduced assurance that he will be protected by his own silence. It would impair both the efficiency and the fairness of the criminal justice system to require, in all these cases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpabilityadvantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.
481 U.S. at 209-10, 107 S. Ct. 1702 (citation omitted). See also Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710, 718 n. 5 (1992) (Opinion by Zappala, J.) (recognizing that Richardson "rejected a rule of automatic severance of co-defendants' trials in these situations because of the `vital role in the criminal justice system' which joint trials play"). Accord Commonwealth v. Travers, 768 A.2d at 847 ("Both this Court and the United States Supreme Court have recognized that joint trials of co-defendants play a crucial role in the criminal justice system"). Here, no less than in Wharton, our role in reviewing the federal claim requires us to effectuate the judgment of the Supreme Court majority, which rejected this alternative. Wharton. There is not now an absolute Sixth Amendment bar to joint trials involving confessions by non-testifying co-defendants, and there was no such prohibition when appellant was tried.
In addition, the test proposed by the concurrence is unworkable as a practical matter. There is no requirement that a defendant must state before the defense presentation whether the defendant will testify or will not testifymuch less is there a requirement that he be held to any stated position. Therefore, a trial court would not know whether to grant a separate trial for that defendant. The defense would be able to control the severability question by simply stating that the non-confessing defendant will not testify, when there is nothing that would prevent the defendant from testifying in a trial that was severed.
Further, it is practically impossible to determine whether there is "no chance that the confessionary statement will prejudice the non-confessing co-defendant." Since joint trials typically involve conspiracies, every redacted statement possesses at least a prospect of "spillover" prejudice; otherwise, such statement would be irrelevant to the issue of guilt or innocence of the confessing defendant. Indeed, that is *325 why the U.S. Supreme Court created the Bruton exception to the rule that cautionary charges are alone always sufficient to avoid spillover prejudice. Nowhere in the law is there a "no chance of prejudice" standard when applied to evidentiary rulings. The scenario proposed by the concurrence joined by Chief Justice Zappala notwithstanding his majority authorship in Wharton would place a tremendous burden on the criminal justice system and be a waste of limited judicial resources.
The law expects trial judges to be impartial and competent in the law; it does not expect them to be clairvoyant or psychic. Because the trial court's failure to be prescient is not grounds for a new trial, I cannot join the Court's grant of relief on the fictional claim of trial court error it has raised sua sponte here. For all of the above reasons, I respectfully dissent.
NOTES
[1] See 42 Pa.C.S. §§ 722(4), 9711(h)(1); Pa. R.A.P. 702(b) and 1941.
[2] 18 Pa.C.S. § 2502(a).
[3] 18 Pa.C.S. § 3901.
[4] 18 Pa.C.S. § 903.
[5] As explained infra, Appellant was tried for the crimes in question on two separate occasions. The evidence presented at both trials was substantially the same. However, these facts are recounted from the evidence presented at the second trial.
[6] The medical examiner concluded that in his opinion, Gaines' cause of death was manual strangulation and suffocation by forcing Gaines' head into the couch. N.T., 7/12/1996, p. 49. In addition, the examiner testified that Gaines was further mistreated as her anus was distended and split into four radiating lacerations consistent with a large object being forced into the anus. Id. at 53-54. The examiner believed that this injury was caused by a broom handle or beer bottle being forced into the anus, but acknowledged that a penis could have made the insertion. Id.
[7] Although Appellant asserts that the preliminary hearing statement was erroneously admitted under Brady at both trials, we need not address this argument, since we find that the court erred in admitting the statement pursuant to Bruton.
[8] Following the presentation of most of the Commonwealth's case, the trial court granted Young's motion for judgment of acquittal based on a demurrer.
[9] 42 Pa.C.S. § 9711(d)(6).
[10] The Rules of Criminal Procedure provide that an appeal in a criminal matter is from a judgment of sentence. See, e.g., Pa.R.Crim.P. 720. In this case, although the convictions for robbery and conspiracy occurred following the first trial, Appellant was not sentenced for these convictions until after the first degree murder conviction. Rather, he was sentenced for all the convictions at the same sentencing hearing. Thus, this appeal is Appellant's first opportunity to raise any issues related to the first trial. As we ultimately determine that Confrontation Clause violations occurred at both trials we will vacate the judgment of sentence as to all charges.
[11] Appellant raises two other alleged violations of the Confrontation Clause pursuant to Commonwealth v. Bujanowski, 418 Pa.Super. 163, 613 A.2d 1227 (1997)(implying that recantation testimony of an unavailable witness was not admissible under Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), since it was unreliable) and Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992)(defense must have full and fair opportunity to cross-examine witness at prior hearing in order for testimony to be admissible at a later hearing where the witness is unavailable). There is no reason to address these issues, since we are reversing the judgment of sentence based on a Confrontation Clause violation pursuant to Bruton.
[12] In the Statement of Questions Involved, Appellant asserts that trial counsel was ineffective for failing to object to the manner in which the statements were redacted. However, in the argument portion of his brief he also raises and develops the assertion that the trial court erred admitting the statements given the manner in which they were redacted. In light of Appellant's full development of this issue in a direct appeal capital matter, it is unnecessary to address the issue in terms of trial counsel's ineffectiveness. Although Appellant has failed to present the issue in his Statement of Questions Involved in compliance with Pa.R.A.P. 2116, it would be inappropriate for this court to decline review of the issue related to the alleged trial court error, merely on the basis of what amounts to appellant's awkward phrasing of the Statements of Questions Involved.
Additionally, as made clear infra, Appellant would be hard-pressed to demonstrate trial counsel's ineffectiveness related to this claim, as counsel objected to the admission of the statement and then also objected to the redaction. Accordingly, this case presents a question of trial court error, which was preserved by trial counsel's objections.
[13] Scholars postulate that the right of confrontation was recognized as a result of the trial of Sir Walter Raleigh, where Raleigh was convicted solely on the basis of an affidavit of questionable reliability by an alleged co-conspirator who did not appear in court. Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011 (February 1998); Alfredo Garcia, The Winding Path of Bruton v. United States: A Case of Doctrinal Inconsistency, 26 Am.Crim. L.Rev. 401 (1988).
[14] Although the Court determined that the redaction did not violate Marsh's right of confrontation, ultimately the Court remanded the case for further consideration in light of the fact that the prosecutor sought to undo the effect of the limiting instructions by encouraging the jury to use the statement when considering the case against Marsh. Richardson, 481 U.S. at 211, 107 S. Ct. 1702.
[15] Most recently, in Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998), the Court considered the scope of the protective rule first announced in Bruton by examining its decisions in both Bruton and Richardson. In Gray, the Court explained that Richardson placed those statements that incriminate by inference outside the scope of the Bruton rule. Id. at 195, 118 S. Ct. 1151. However, "inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton's scope confessions that use shortened first names, nicknames, descriptions...." Id. Thus, in considering whether the inference was outside the scope of Bruton, a court must consider "the kind of, not simply the fact of" inference that it raises. Id. at 196, 118 S. Ct. 1151. Where the inferences do not refer directly to the defendant and become incriminating only when linked with other evidence at trial, those inferences fall outside the scope of the Bruton rule. Id. at 195-96, 118 S. Ct. 1151 (noting that Richardson placed outside the scope of Bruton, those statements that only incriminate inferentially). On the other hand, where the inferences "involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and involve inferences that a jury ordinarily could make immediately" then the admission of such statements violate the protective rule announced in Bruton. Id. Ultimately, the Court held that a confession which substituted blanks, the word "delete," or an obvious symbol violated the Confrontation Clause. Id. at 192, 197, 118 S. Ct. 1151.
Gray has no relevance to our holding today, since this court has previously determined that Gray announced a new rule of law that should not be applied retroactively. See Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485, 500 n. 18 (1999). However, our opinion today does not rely on the holding in Gray; rather we look to Gray only for the Court's clarification of the distinction between Bruton and Marsh. Any discussion of Gray is limited to demonstrate the Court's development of Confrontation Clause law. Neither our analysis or discussion of this matter would be altered in the absence of the Court's decision in Gray, since ultimately, this case turns on the fact that the statements, as admitted, violated the rule set forth in Bruton.
[16] As noted infra on page 299, Appellant's counsel initially joined the objection raised by Elliott's counsel to the admission of Detective Mangoni's reading of the statement. N.T., 11/21/1995, pp. 13-15. However, when given the choice of either renewing his objection to Mangoni's testimony or calling Nicole Schneyder to the stand, counsel chose not to object to Mangoni's testimony. Id. at 51-52.
[17] At the second trial, Appellant's counsel clearly objected to Mangoni's reading of Schneyder's statement and this time, counsel was not faced with the Hobson's choice of calling Schneyder to the stand or not objecting to the admission of Mangoni's testimony, thus, unlike the first trial, counsel's objection continued at the time that Mangoni actually testified.
[18] The United States Supreme Court has not had the opportunity to rule on whether non-custodial statements, such as the ones at issue here, are subject to the rule in Bruton. The Court has repeatedly indicated that custodial statements, such as confessions, are inherently unreliable because of the coercive nature of the statement, i.e., the circumstances surrounding the making of such statements, the motivation to lie, etc. Lee, 476 U.S. at 541, 106 S. Ct. 2056; Bruton, 391 U.S. at 141, 88 S. Ct. 1620. A corollary to this analysis is that non-custodial statements are reliable, since they are not made under such circumstances. Thus, some federal courts have not employed a Confrontation Clause analysis to bar hearsay statements of accomplices where the hearsay statement was made in a non-custodial setting to a friend or intimate. United States v. Shea, 211 F.3d 658 (1st Cir.2000); United States v. Robbins, 197 F.3d 829 (7th Cir.1999); Latine v. Mann, 25 F.3d 1162 (2nd Cir.1994); but see United States v. Schmick, 904 F.2d 936 (5th Cir.1990); Monachelli v. Warden, SCI Graterford, 884 F.2d 749 (3rd Cir.1989).
Nevertheless, the Court has failed to indicate that the Confrontation Clause should not apply to these statements. But see Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)(plurality opinion)(although concluding that hearsay was admissible pursuant to the co-conspirator exception to the hearsay rule, language contained therein implies that the statement was reliable because of the non-custodial nature of the circumstances surrounding the making of the statement). Further, we are reluctant to adopt a general posture declaring such non-custodial statements reliable when they are made to a friend or intimate. Indeed, a declarant may have similar motives for inculpating a co-defendant/accomplice more than himself in situations where he is making such a statement to a friend or intimate.
[19] After due consideration of the impassioned response by the dissenting opinion, we continue to adhere to our initial position that the issue of trial court error was fairly encompassed in Appellant's brief to this court and that we are not raising the issue sua sponte. See infra n. 12.
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[1] At the first trial, the trial court issued a general Bruton charge at the end of the case. N.T. 11/22/1995, p. 26. This Court has indicated that the preferable practice is to give the charge sooner, as occurred at the second trial. Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841, 845 (1977) ("[Although a] limiting instruction may be given either as the evidence is admitted or as part of the general charge .... [w]e emphasize ... that it is better to give the limiting instruction at the time the evidence is admitted.") (citations omitted). At neither trial did appellant object to the timing or adequacy of the court's remedial response to the objection to Mangoni's testimony.
[2] See Morgan v. Illinois, 504 U.S. 719, 751, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting) (adverting to "the fog of confusion that is our annually improvised Eighth Amendment, `death is different' jurisprudence").
[3] The United States Supreme Court has recently reaffirmed the importance of accounting for retroactivity principles in determining the applicability of new rules, in the federal habeas context. Horn v. Banks, 536 U.S. 266, 122 S. Ct. 2147, 153 L. Ed. 2d 301 (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2319149/ | 32 A.3d 834 (2011)
COM.
v.
SHOCKLEY.
No. 1560 MDA 2010.
Superior Court of Pennsylvania.
August 15, 2011.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/395285/ | 661 F.2d 264
H. S. EQUITIES, INC., Plaintiff-Appellant Cross-Appellee,v.HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and ThirdParty Plaintiff-Appellee-Cross-Appellant,v.Joseph DECKER, Third-Party Defendant-Appellee.
Nos. 836,965, Dockets 80-7814, 80-7892.
United States Court of Appeals,Second Circuit.
Argued June 3, 1981.Decided Oct. 1, 1981.
1
Wien, Lane & Malkan, New York City (Robert G. Desmond, and Wayne R. Lehrhaupt, New York City, of counsel), for plaintiff-appellant-cross-appellee.
2
Bigham, Englar, Jones & Houston, New York City (Thomas R. Pattison, and Peter Broeman, New York City, of counsel), for appellee-cross-appellant and third party plaintiff.
3
Alfred C. Purello, Albany, N. Y., for third party defendant-appellee.
4
Before TIMBERS and WATERMAN, Circuit Judges, and LASKER, District Judge.*
5
LASKER, District Judge.
6
HS Equities, Inc. (HS) appeals from a judgment entered after a bench trial before the United States District Court for the Southern District of New York (Metzner, District Judge)1 in which it was awarded $64,512.90 and interest on its claim for $130,000. asserted against Hartford Accident and Indemnity Company (Hartford), and from a post-trial order denying its motion to amend the findings of fact by increasing the award. In addition, HS appeals from an order granting Hartford summary judgment on HS' separate claim for $49,730.61, for attorney's fees and costs.
7
Hartford cross appeals from the judgment of the district court awarding HS $64,512.90 and interest and from the dismissal of Hartford's third-party complaint against Joseph Decker (Decker), as well as from the order denying its claim that HS' action was not commenced within the contractual period of limitation.
I.
8
HS brought this action to recover, under a blanket brokers bond (the Bond) issued by Hartford, the sum of $130,000. paid by HS in settlement of actions brought against HS and Decker, its registered representative, and for attorney's fees. The Bond, which Hartford issued to HS2 in 1967, covered "(a)ny loss through any dishonest, fraudulent or criminal act of any of the Employees...." In addition, it separately provided for indemnification against court costs and reasonable attorneys fees incurred and paid by Hartford in defending against a claim which, if established, would constitute a collectible loss under the Bond. In consideration for this provision, HS agreed that it would "promptly give notice to (Hartford) of the institution of any such suit or legal proceeding" and that Hartford could undertake defense of the suit if it elected to do so. The Bond required that a suit under the Bond must be "begun within twenty-four months after (HS) shall learn of such loss...."3
9
The earlier action for which HS seeks indemnity was instituted in the fall of 1970 by two customers of HS, the Draicchios, on account of alleged violations of the antifraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934 and breaches of common-law fiduciary duties. The Draicchios charged that their accounts had been churned, that unauthorized trading had taken place, that unsuitable securities had been purchased for their accounts, that HS and Decker had engaged in self-dealing, and that a series of margin violations had occurred. They sought over $225,000. in actual damages and $350,000. in exemplary damages and attorneys fees.
10
On August 11, 1971, HS gave notice to Hartford of the pendency of the Draicchio suits and forwarded copies of the Draicchios' complaints to Hartford. Hartford declined to undertake the defense of the actions. On June 25, 1975, HS notified Hartford that the cases had been consolidated for trial on July 25, 1975, and that HS had refused a settlement demand of $155,000. by the Draicchios. At that time, HS invited Hartford to participate in settlement discussions and inquired if Hartford objected to HS settling the suits. Hartford responded that since it had elected not to defend the suits, it would neither approve nor disapprove the settlement and that a settlement would not prejudice HS' rights to proceed under the Bond but that this statement did not constitute a waiver by Hartford of any defenses it had under the Bond.
11
The Draicchio trial began on July 25, 1975. After a week of trial principally devoted to Mr. Draicchio's direct testimony, the trial was adjourned for the weekend and the court suggested that counsel further consider settlement. The following Monday morning settlement was reached. HS agreed to pay the Draicchios $130,000. on account of all claims against HS and Decker.
12
Decker, who was represented by the same counsel as HS, did not contribute to the settlement, HS had secured counsel to represent Decker and itself, paid all legal fees, and paid Decker's expenses in connection with the suit. Decker voiced satisfaction with the settlement and was told by counsel that he could return home. Decker was not informed that as a result of the settlement he might be sued by Hartford if Hartford was called to pay under the Bond, and HS did not execute a release in favor of Decker. Thereafter, HS paid the settlement and stipulations of dismissal were executed on August 5, 1975.
13
On August 5, 1975, HS advised Hartford of the settlement and demanded reimbursement for the $130,000. as well as $42,530.61 in attorneys fees and $2,200. in expert witness fees. HS returned a completed proof of loss form to Hartford on September 4, 1975, for these amounts. After discussions between HS and Hartford, Hartford denied the claim in writing on December 11, 1975 on the ground that there was no evidence of Decker's dishonesty.
14
In July, 1977, HS filed its complaint in the present action to enforce Hartford's asserted liability under the Bond. Hartford answered and filed a third-party complaint against Decker alleging that it was entitled to judgment against Decker for any amount for which it might be found to be liable to HS. All parties then moved for summary judgment. In an opinion dated October 17, 1978, the district court denied the motions except for that portion of Hartford's motion for summary judgment dismissing HS' claim for reimbursement of attorneys fees and litigation expenses. The district court held that HS' nine month delay in informing Hartford of the institution of the Draicchio suits did not comply with the prompt notice requirement of the attorneys fees provision of the Bond and that Hartford had not waived the notice provisions by denying liability under the Bond for the actions.
15
A bench trial was held in May, 1980, and the district court filed its findings of fact and conclusions of law on June 23, 1980. It found that the settlement of the Draicchio actions had been in good faith and that Hartford had been accorded a reasonable opportunity to defend the actions and had declined to do so. Relying on Feuer v. Menkes Feuer, Inc., 8 A.D.2d 294, 187 N.Y.S.2d 116 (1959) and other New York decisions, it held that the settlement conclusively established Hartford's liability under the Bond for the portion of the settlement attributable to the claims that Decker had committed fraudulent or dishonest acts. The district court determined that $65,000. of the settlement was attributable solely to HS' liability for margin violations and that the remainder was attributable to the allegations of Decker's misconduct.
16
In addition, the district court dismissed Hartford's claim against Decker. It held that Decker would have a defense against a claim by HS to recover any part of the loss allegedly due to his misconduct because HS was responsible for the conflict of interest in the representation of Decker in the Draicchio actions and had failed to protect his interests by providing him a release from HS. Since Hartford's rights against Decker could be no greater than HS' rights against Decker, the district court concluded that Hartford could not maintain its claims against Decker. It held further that Hartford's inability to proceed against Decker did not constitute an impairment by HS of Hartford's right of subrogation since Hartford's refusal to defend the Draicchio actions had the same effect as a denial of liability under the Bond, which in turn constituted a waiver by Hartford of the defense of impairment of subrogation rights.4 HS appeals from the district court's decision on the grounds that it was entitled to the full $130,000. settlement sum and that it was improper to grant Hartford summary judgment of HS' claim for indemnification of attorney's fees. Hartford argues that liability under the Bond was never established and that its claim against Decker should not have been dismissed.
II.
17
We consider first the threshold issue whether Hartford was liable to HS under the bond. In an action involving the same bond as at issue here, HS Equities, Inc. v. Hartford Accident and Indemnification Company, 609 F.2d 669 (2d Cir. 1979) ("Michael"), we read the New York law on the subject to be that when an indemnitor has been accorded a reasonable opportunity to defend a third-party action against the indemnitee and declines, the good-faith settlement of the third-party claim by the indemnitee is presumptive evidence of the facts alleged in the third-party complaint. Thereafter the indemnitor has the burden successfully to contest this presumptive evidence in the action for indemnification. 609 F.2d at 674-75. We specifically rejected the proposition that such a settlement constituted conclusive evidence of the facts upon which it was based. 609 F.2d at 674 n.8. Since, in Michael, Hartford had never advanced Michael's innocence as a defense to its liability to HS under the Bond, we held that it had failed to overcome the presumptive effect of the good-faith settlement of the third-party suits and that it was therefore unnecessary for the trial court to determine whether the allegations of misconduct on the part of Michael were true.
18
Hartford contends that in this case the district court erred by finding Hartford liable on the Bond without finding as a matter of fact that the settlement was made because of Decker's "dishonest, fraudulent or criminal acts" within the meaning of the Bond. Hartford argues that, while it introduced evidence at trial that Decker was innocent of the misconduct alleged in the Draicchio complaints, HS introduced no evidence of Decker's misconduct and even declared on the record that it was not taking the position that Decker had in fact acted fraudulently or dishonestly. It follows, according to Hartford, that it was never established that there was a loss encompassed by the terms of the Bond.
19
Hartford next argues that the district court should not have applied the presumption discussed in Michael because here, unlike Michael, there had been no finding that Hartford had denied liability under the Bond. Hartford contends that, since it had a contractual right to decline to defend third-party suits, its decision not to defend should not result in a presumption against it. Hartford further contends that even if the Michael presumption does apply when the indemnitor has not denied liability, the district court failed to adhere to Michael because it treated the Draicchio settlement as conclusive rather than rebuttable evidence of Decker's misconduct. In any event, Hartford maintains that we misread the relevant New York law in Michael and that no presumption should apply here because the bond in question is not a broad indemnity bond but comes into effect only when particular acts or misconduct in fact produce a loss to the insured.
20
HS responds that the issue whether Hartford denied liability under the Bond is irrelevant to the determination of the effect of the settlement of the Draicchio actions under the relevant New York law. Moreover, HS asserts that the opinion in Michael misread the New York law on the effect of a good-faith settlement on a later action for indemnification. According to HS, it is firmly established by New York decisions that, if the indemnitor is given notice of the third party suit and a reasonable opportunity to defend and declines to do so, any reasonable, good-faith settlement entered into by the indemnitor is conclusive evidence of the facts alleged in the third-party complaint in the later action for indemnification. It follows, HS says, that it was not required to establish in the district court that Decker had acted fraudulently or dishonestly, but only that Hartford declined to defend and that the settlement was entered into in good faith. Since the district court found these facts, HS contends that it properly accorded the settlement of the Draicchio actions conclusive effect against Hartford.
21
The finding that Hartford is liable to HS under the Bond for the portion of the settlement of the Draicchio actions attributable to allegations of Decker's misconduct is reversed. We believe that the district court failed to apply our holding in Michael and treated the good-faith settlement of the Draicchio actions as conclusive evidence of Decker's wrongdoing in this indemnification action. Under Michael, the settlement of the Draicchio suit constituted only presumptive evidence which Hartford was entitled to contest. Here, unlike Michael, Hartford introduced substantial evidence that Decker was innocent of any wrongdoing. HS took the position that Decker's innocence or guilt was, in light of Hartford's decision not to defend, irrelevant to Hartford's liability under the Bond. The trial court incorrectly agreed with HS and therefore failed to determine whether Hartford had overcome the presumption created by the settlement, whether HS was obliged to submit proof of Decker's misconduct, and whether Decker in fact was guilty of the allegations in the Draicchios' complaints. Accordingly, the case must be remanded to the district court to hear the evidence and make the determinations which it omitted.5
22
We do not agree with Hartford, however, that the presumption discussed in Michael depends upon a finding that Hartford denied liability under the bond prior to the time of settlement. While in Michael Hartford had actually denied liability, and we noted that fact in our discussion of the effect of the prior settlement in the indemnification action, our analysis of the New York law did not conclude that a denial of liability is a precondition to the application of the presumption. See Michael, supra, at 674 n.8.
III.
23
HS contends that the district court erred in granting Hartford summary judgment on HS' claim for reimbursement of attorneys fees and litigation expenses. HS argues first that Hartford's assertion that third-party customer suits did not come within the coverage of the Bond relieved HS from the obligation under the attorneys' fees provision of the Bond promptly to notify Hartford of any such suit. In its opposition to Hartford's summary judgment motion, HS had submitted the affidavit of Robert J. Poulson, HS' present general counsel who in 1969 was employed on its legal staff, which HS asserts established that Hartford had taken the position that customer suits were not within the Bond's coverage. HS argues that the trial court misconstrued the affidavit as merely establishing HS' denial of liability in a particular case. HS emphasizes that the same denial of liability was referred to in Michael as constituting a denial of liability for customer suits in general. Moreover, HS argues that, as a result of the findings of fact in Michael, Hartford is collaterally estopped from asserting that it did not deny liability for customer fraud suits in early 1970. Finally, HS contends that even if the district court were correct that Hartford had not denied liability under the Bond, it still erred in granting summary judgment on the attorneys fees claim because the question whether HS promptly informed Hartford of the Draicchio actions constituted a genuine issue of material fact precluding summary judgment.
24
Hartford responds that the district court properly determined that a delay of nine months was unreasonable as a matter of law and therefore violated the contractual requirement that HS notify Hartford promptly of suits against it. Hartford emphasizes that HS submitted no evidence in opposition to the motion for summary judgment which established an excuse for the delay in notice. Moreover, Hartford stresses that the issue of Hartford's alleged denial of liability was considered at trial and that the district court found that there was no denial of liability since HS had in fact notified Hartford of the suits, albeit belatedly. According to Hartford, the district court found HS' belated notice to be inconsistent with HS' position that HS believed that Hartford had previously denied liability. Hartford also argues that the denial of liability found in Michael was limited to churning claims and that HS had been informed in 1970 that Hartford would consider its position with respect to the Bond's coverage as each particular customer suit was brought to its attention.
25
The order granting Hartford summary judgment on HS' claims for attorneys fees and litigation expenses is reversed. It is established that a repudiation of liability by an insurer on the ground that the loss is not covered by the policy operates as a waiver of the notice requirements contained in the policy. See, e. g., Rock Transport Properties, Corp. v. Hartford Fire Insurance Company, 433 F.2d 152, 154 (2d Cir. 1970); Beckley v. Otesco County Farmers Cooperative Fire Insurance Company, 3 A.D.2d 190, 195, 159 N.Y.S.2d 270 (3d Dept. 1957); Shapiro v. Employers' Liability Assurance Corp., 139 Misc. 454, 248 N.Y.S. 587 (Sup.Ct.Bronx Co. 1931). In Michael, we upheld the district court's finding that Hartford's expression of its general position that third-party customer suits were not encompassed within the terms of the fidelity bond, along with varied justifications for that position, was the equivalent of a denial of liability in the third-party suit at issue. Michael, supra, 609 F.2d at 673. In the present case, HS had submitted an affidavit of Robert J. Poulson which stated that in 1969 Hartford had informed HS of its general position that securities fraud claims arising out of customer suits were not covered by the Bond.
26
We agree with HS that this affidavit can only be construed to relate to a general denial of liability by Hartford applicable to all customer suits. Accordingly, the Poulson affidavit raised a genuine issue of material fact whether Hartford had actually disclaimed liability under the Bond for all customer suits and whether it had thereby, under Michael, waived its contractual notice rights.6
27
Moreover, we agree with HS that Hartford is collaterally estopped from contesting any facts which were decided or stipulated in Michael. However, the scope and duration of the denial of liability found in Michael is not clear from the record before us. Accordingly, on remand the district court should determine if the general denial of liability discussed in Michael encompassed the claims pressed by the Draicchios and, if so, whether Hartford had changed its position before the Draicchio actions were instituted.
IV.
28
Hartford contends that the district court erred in dismissing its third-party complaint against Decker. We disagree. The district court found that the joint representation of HS and Decker at the Draicchio suits resulted in counsel's failure properly to protect Decker's interests by securing a release from HS in his favor. The evidence supports the district court's conclusion that, had the circumstances been explained to Decker, he would not have consented to the settlement without securing such a release. Since Decker's consent to the settlement depended upon HS' failure to take his interests into account, Decker would have a defense against any action by HS to recover the portion of the settlement attributable to his alleged misconduct. Hartford, standing in the shoes of the subrogor, HS, is subject to the same defense. Great American Insurance Company v. United States, 575 F.2d 1031, 1034 (2d Cir. 1978).
29
Hartford next argues that if the third-party complaint was properly dismissed against Decker, then HS' entire complaint against Hartford should have been dismissed on the ground that HS had impaired Hartford's subrogation rights against Decker. We need not reach this issue at this time. We have remanded the case for a determination whether Hartford had denied liability under the Bond for the claims at issue here. If it is found that Hartford had indeed denied liability, the issue whether HS had impaired Hartford's subrogation rights will be rendered moot. If it is determined that Hartford did not deny liability, the issue whether HS had impaired Hartford's subrogation rights by its actions with respect to Decker or whether Hartford's actions constituted a waiver of its subrogation rights can be determined on a record properly directed to those questions.
V.
30
The parties' remaining contentions are without merit. The district court's finding that $65,000. of the settlement amount was attributable to margin violations for which HS would be liable is supported by ample evidence in the record and is not clearly erroneous. The district court's finding that the action was begun within the contractual twenty-four month period is consistent with the well-established principle that a contract must be construed in the light of the applicable law at the time the contract was executed, see Battaglia v. General Motors Corp., 169 F.2d 254, 258 (2d Cir. 1948) and that any ambiguity in the Bond must be resolved in favor of the insured. E. g., Filor, Bullard & Smyth v. Insurance Company of North America, 605 F.2d 598 (2d Cir. 1978); State Farm Mutual Auto Insurance Company v. Westlake, 35 N.Y.2d 587, 591, 364 N.Y.S.2d 482, 324, N.E.2d 137 (Ct.App.1974).
31
Reversed in part, affirmed in part and remanded for proceedings consistent with this opinion.
*
Morris E. Lasker, United States District Judge for the Southern District of New York, sitting by designation
1
HS Equities, Inc. v. Hartford Accident and Indemnity Company, 493 F.Supp. 451 (S.D.N.Y.1980)
2
HS Equities is the surviving entity of Hayden, Stone Inc. We refer to both entities as "HS"
3
The relevant provisions of the Bond are as follows:
"The losses covered by this Bond are as follows:
FIDELITY
(A) Any loss through any dishonest, fraudulent or criminal act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, including loss of Property through any such act of any of the Employees.
COURT COSTS AND ATTORNEYS FEES
(H)artford will indemnify the Insured against court costs and reasonable attorneys' fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured's liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured under the terms of this bond. Such indemnity shall be in addition to the amount of this bond. In consideration of such indemnity, the Insured shall promptly give notice to (Hartford) of the institution of any such suit or legal proceeding; at request of (Hartford) shall furnish it with copies of all pleadings and other papers therein; and at (Hartford's) election shall permit (Hartford) to conduct the defense of such suit or legal proceeding, in the Insured's name, through attorneys of (Hartford's) own selection.
LOSS NOTICE PROOF
LEGAL PROCEEDINGS
Section 3. The Insured shall give to the Underwriter written notice of any loss under this bond as soon as possible after the Insured shall learn of such loss, and within ninety days after learning of such loss shall file with the Underwriter an itemized proof of claim duly sworn to. The Underwriter shall have thirty days after notice and proof of loss within which to investigate the claim, but where the loss is clear and undisputed, settlement shall be made within forty-eight hours; and this shall apply notwithstanding the loss is made up wholly or in part of securities of which duplicates may be obtained. No action or proceeding shall be brought under this bond in regard to any loss unless begun within twenty-four months after the Insured shall learn of such loss, except that any action or proceeding to recover hereunder on account of any judgment against the Insured in any suit mentioned in the paragraph entitled Court Costs and Attorneys' Fees, or to recover attorney's fees paid in any such suit, shall be begun within twenty-four months from the date upon which the judgment in such suit shall become final, or in case such limitation be void under the law of the place governing the construction hereof, then within the shortest period of limitation permitted by such law."
4
After trial, HS moved for an order amending the findings of fact to provide that only $487.10 should be deducted from the $130,000. settlement it paid on the ground that the margin violations alleged by the Draicchios were attributable to Decker's mismanagement of the account rather than to HS. Hartford moved to increase the amount of the settlement attributable to HS. In a decision dated September 3, 1980, the district court reiterated its finding that $65,000. of the settlement was attributable to margin violations for which HS would have been liable and therefore should be deducted from the amount of the settlement for which Hartford was liable under the Bond. The district court also held that an additional $487.10, representing Decker's remaining interest in a profit sharing plan, should be deducted from HS' recovery and that interest should run on the amount awarded to HS
5
The arguments of both HS and Hartford that Michael misconstrued the applicable New York law are not properly presented to a panel of this court. See Ingram v. Kumar, 585 F.2d 566 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Lee v. Frozen Food Express, Inc., 592 F.2d 271 (5th Cir. 1979)
6
The trial court's decision that Hartford's earlier denial of liability could not be held to apply to customer suits which had not yet been instituted at the time of Hartford's statements was rendered before our opinion in Michael and was therefore without the benefit of our holding that Hartford's general denial of liability for particular claims, coupled with justification for its position, was the legal equivalent of a denial of liability for a particular suit within the scope of the general denial. It is unclear whether the district court's observation at trial that HS' late notice was inconsistent with HS' assertion that it believed Hartford had already denied liability for such suits was intended to constitute a finding that Hartford had not in fact denied liability. If it were so intended, we disagree. HS' belated notice cannot legally or factually serve to estop it from asserting that it had no duty to notify Hartford in the first place because Hartford had waived the prompt notice right by disclaiming liability. HS' motivations in giving notice at a later time are irrelevant to the factual issue whether Hartford had waived notice by denying liability | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1547240/ | 809 A.2d 865 (2002)
355 N.J. Super. 210
Mark BERBERIAN and Emanuel Berberian, Plaintiffs-Appellants,
v.
Diana LYNN, as Guardian of the Incompetent Edmund Gernannt and Edmund Gernannt, Individually and the Estate of Edmund Gernannt, Defendants-Respondents, and
Dr. M.H. Ramay, M.D., Defendant.
Superior Court of New Jersey, Appellate Division.
Argued October 21, 2002.
Decided November 20, 2002.
*866 Michael J. Breslin, Jr., Hackensack, argued the cause for appellants (Waters, McPherson, McNeill, attorneys; Mr. Breslin, of counsel; James J. Seaman, on the briefs).
Gerard P. De Veaux argued the cause for respondent Diana Lynn (De Veaux & Seidman, attorneys; Margaret A. Sherlock, Rutherford, on the brief).
Kevin P. Harrington, North Haledon, argued the cause for respondent Edmund Gernannt (Harrington and Lombardi, attorneys; Mr. Harrington, on the briefs).
Before Judges PETRELLA, LINTNER and BILDER.
The opinion of the court was delivered by PETRELLA, P.J.A.D.
Plaintiffs, Mary Berberian and her husband *867 Emanuel Berberian,[1] filed a complaint against defendants Diana Lynn, Edmund Gernannt, and a then-unknown physician. Amended complaints added the Estate of Gernannt as a defendant after he died, and substituted Dr. M.H. Ramay, M.D., as a defendant for the unknown physician. The complaint alleged that Lynn was negligent in allowing and causing the removal of Gernannt, an adjudicated incompetent, from the psychiatric ward of Bergen Pines County Hospital (Bergen Pines) to the Bergen Pines long term care unit without restraints. Plaintiffs also alleged improper supervision and control and that Lynn breached a contract or fiduciary duty, or both, as Gernannt's guardian. Summary judgment was granted in Lynn's favor, dismissing all claims asserted against her. Summary judgment was later granted to Dr. Ramay, dismissing the complaint against him apparently due to the bar of the workers' compensation statute. The dismissal of Dr. Ramay is not the subject of this appeal.
On the last day of the jury trial against Gernannt, plaintiffs' attorney argued that a $200,000 settlement had been reached, despite his request in a counterproposal for $225,000, and plaintiff sought enforcement of the settlement. Defendant's attorney placed a high low proposal on the record in the presence of plaintiff and her attorney, but this offer was not accepted. The trial judge concluded there was no settlement and charged the jury, which thereafter returned its verdict finding Gernannt was not negligent.
Plaintiffs assert the following claims on these consolidated appeals. In their first appeal (A-4825-00T2) they argue: (1) Lynn was negligent in demanding that Gernannt be removed from the psychiatric unit and placed in the long term care unit of Bergen Pines; and (2) the judge erred in instructing the jury that Gernannt could not be found negligent if he lacked the capacity to appreciate the consequence of his actions. In their second appeal (A-414-01T2) plaintiffs argue that the judge erred in refusing to enforce a claimed settlement between the parties despite a strong public policy favoring settlements and the fact that an oral settlement is enforceable.
Lynn was awarded guardianship of her father, Gernannt, now deceased, on September 22, 1997, when it became apparent that he was no longer mentally competent or able to care for himself and was a danger to himself and others. On October 3, 1997, Gernannt was admitted to Bergen Pines[2] with a diagnosis of Senile Dementia, Alzheimer Type. On October 13, 1997, he was transferred from the Long Term Care Unit (LTCU) to the Psychiatric Unit because he "became increasingly agitated and assaultive towards the staff."
Dr. Ramay, who last treated Gernannt on November 1, 1997, did not expect that there would be any recovery of cognition by the patient. Prior to the November 11, 1997 incident, Dr. Hossain, the Chief of Geriatric Psychiatry at Bergen Pines, treated Gernannt. Both doctors testified at trial that Gernannt suffered from advanced Alzheimer's disease with severe dementia. In addition, Dr. Hossain stated that Gernannt's condition was unlikely to improve and was, in fact, progressive.
*868 On November 5, 1997, Gernannt was returned to the Alzheimer population in the LTCU after receiving medication and treatment. Plaintiff contends that when Lynn was notified that her father was placed in the Psychiatric Unit, she requested his return to the LTCU. A report by Dr. Ramay noted that when Gernannt was treated in the Psychiatric Unit, "[t]he patient's family was contacted. They wanted him in long term care." Although Lynn acknowledged concern that her father was placed in the Psychiatric Unit, she asserts she never directed the hospital doctors to transfer her father from the Psychiatric Unit to the LTCU. At her deposition she stated:
I remember being concerned about my father being in the psychiatric unit because I remembered the movie "Snake Pit" ... [a]nd I asked the doctor was he going to stay there or what the situation was ... [T]he doctor said that it was normal that within a few days time, that he would be transferred. That's what he expected, that within a few days time he would be transferred back to long term care.
Nurse Christina Maita testified that about 75% of the patients in the LTCU were Alzheimer's patients and that a patient would be transferred to the Psychiatric Unit when the patient was at risk of harming himself or others. Maita explained that the decision to transfer to and from the Psychiatric Unit involved collaboration between the doctors, nurses, and interdisciplinary team. According to Maita, during the days prior to the alleged incident, Gernannt was never physically abusive towards Maita or Berberian. She was aware that Gernannt had behavioral problems prior to the date of the incident.
At about 11:00 p.m. on November 11, 1997, Gernannt set off the alarm when he tried to leave the LTCU by the fire door exit. Maita heard the alarm and attempted to stop him. However, Gernannt resisted and pushed her away. She then summoned security. Berberian, the charge nurse for Gernannt, grabbed Gernannt in an attempt to redirect him. According to Maita, Gernannt then pushed Berberian, and she lost her balance and fell as she stepped back.
Berberian contends that when she approached Gernannt, she extended her hand to help him back to his room and he took it, and subsequently pushed her away, causing her to fall backward. As a result of the fall, Berberian fractured a bone in her right leg.
I.
We first address the factual dispute between the attorneys for the parties as to whether there was a settlement. The judge considered the circumstances and the relevant and conflicting statements by the attorneys and ruled:
I cannot enforce a settlement that was never placed on the record, that was never, as far as I recollected, accepted by plaintiff. There were discussions back and forth, it's true. There was a discussion about the [$200,000] number. I don't recollect anyone saying definitively that that would settle the case. That's how come we went to a verdict on the case, and until and unless plaintiff [was] willing to put on the record that the two-hundred was agreed to and defense agreed to pay it, the Court had no capacity to make a better bargain for the plaintiff than she could have made for herself during the proceedings.
Our scope of review of these findings is limited. Here, the judge's findings are supported by substantial credible evidence in the record and we have no basis to disturb them. Rova Farms Resort v. Investors *869 Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974).
Although plaintiffs are correct that settlement agreements are not required to be on the record to be enforceable, Pascarella v. Bruck, 190 N.J.Super. 118, 124, 462 A.2d 186 (App.Div.), certif. denied, 94 N.J. 600, 468 A.2d 233 (1983), there is insufficient basis in the record to establish that a binding settlement was reached. Rather, as the judge found, and the record reveals, the $200,000 figure was never definitively agreed upon between plaintiffs and defendant. Even, assuming arguendo plaintiffs' contentions, they terminated their ability to accept the offer of $200,000 when they proposed a counteroffer of $225,000 on March 30, 2001. Defense counsel rejected the counteroffer and proposed a high low offer. Plaintiffs' attorney later attempted to accept the original $200,000 offer, but defense counsel responded that it was no longer available. Plaintiffs' attorney contends that defense counsel never withdrew the $200,000 offer or imposed a time limit until after the offer was accepted. As defendant correctly argues, however, such withdrawal was not necessary once plaintiffs refused to unconditionally accept the $200,000 offer and instead made a counter-demand of $225,000.
A counteroffer operates as a rejection because it implies that the offeree will not consent to the terms of the original offer and will only enter into the transaction on the terms stated in the counteroffer. Fish v. Schultz, 5 N.J.Super. 403, 405, 69 A.2d 328 (App.Div.1949); 1 Willinston on Contracts § 5.3 (4th ed.1990). A counteroffer terminates the power of acceptance when it relates to the same matter as the original offer and proposes a "substituted bargain differing from that proposed by the original offer." Restatement (Second) of Contracts § 39(2), comment a (1981). Thus, plaintiffs' counteroffer of $225,000 terminated their ability to accept the $200,000 offer. The judge thus correctly concluded that no binding settlement was reached.
II.
We next address the summary judgment granted to Lynn. In considering the summary judgment issue, we apply the same standard of review as the trial court. Pinkowski v. Township of Montclair, 299 N.J.Super. 557, 565, 691 A.2d 837 (App. Div.1997). See R. 4:46-2(c).
The material facts are not disputed. Rather, plaintiffs argue that discovery was cut short by the grant of summary judgment in favor of Lynn and that she should be found negligent for influencing the hospital officials to return Gernannt to the LTCU. As the motion judge correctly concluded, Lynn cannot be held negligent because she was not the proximate cause of plaintiff's injuries. Even assuming that Lynn significantly influenced the hospital's decision to transfer Gernannt to the LTCU, that influence would not be sufficient to impose liability on Lynn for the alleged negligent actions of Gernannt. Therefore, although plaintiffs claim additional discovery is necessary to determine the amount of influence exerted by Lynn on Bergen Pine's decision to transfer Gernannt, such an inquiry would not preclude summary judgment in Lynn's favor.
Before the incident the hospital staff was on notice that Gernannt might become violent. The staff had sufficient time to become familiar with Gernannt's condition and behavior. Indeed, the medical records indicated Gernannt's tendency to become aggressive with staff members. Despite the hospital being on notice of Gernannt's condition, Berberian contends that Lynn could still be liable because she *870 allegedly insisted that her father be returned to the LTCU. Any influence that Lynn's request may have had on the staff at Bergen Pines to transfer her father, however, was not the proximate cause of plaintiff's injury. A similar claim was rejected in Prudential Society, Inc. v. Ray, 207 A.D. 496, 498, 202 N.Y.S. 614 (N.Y.App.Div.), aff'd, 239 N.Y. 600, 147 N.E. 212 (N.Y.1924). A guardian "is not liable for a remote cause, and he is only liable when the injury resulting flows directly from his omission." The incident involved here did not flow directly from any request by Lynn regarding her father's transfer. In addition, any alleged failure to disclose any violent tendencies by her father was not the proximate cause of Berberian's injuries because the hospital already had adequate notice and reports of Gernannt's behavior. Finally, it was within the hospital's discretion whether to move Gernannt from the Psychiatric Unit.[3]
Moreover, courts have been reluctant to impose liability on guardians for the actions taken by their wards, even when the individual is in custody of his or her guardian. See, e.g., Sego v. Mains, 41 Colo.App. 1, 578 P.2d 1069, 1072 (1978). Although New Jersey courts do not appear to have addressed this issue, other jurisdictions have consistently refused to impose liability on guardians in similar situations. In Kaminski v. Town of Fairfield, 216 Conn. 29, 578 A.2d 1048, 1053 (1990), the Connecticut Supreme Court noted two important factors in its determination that custodial parents were not liable to a police officer for injuries inflicted by their son: (1) the plaintiffs disclosed their son's condition when they asked for help; and (2) the defendant was acting in his professional capacity when dealing with the assailant. While some facts in the Kaminski case differ from the instant case, both the Bergen Pines staff and Berberian were aware of Gernannt's propensity for aggressive behavior and Berberian was acting in her professional capacity as his charge nurse at the time of the incident.
As guardian for her father, Lynn entrusted him to an institution that could attend to his special needs and there was nothing more that she could do to protect others from his negligent acts. See Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809, 813 (D.Conn.1997) (having confined their ward to a restricted convalescent home at the time of the incidents, there was "nothing more that her guardians could have done to protect others from defendant's negligent acts"). Because Lynn was not responsible for Gernannt's actions as an institutionalized patient, or for medical staff determinations regarding his placement, Lynn cannot be held liable for any potentially negligent act he committed against a paid hospital employee.
III.
We next address the claim of error in the jury charge. When an appellant raises error in the jury charge, the charge must be read as a whole and the court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973). No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411, 283 A.2d 513 (1971). Under the "harmful error" rule, an error will not be ground for *871 reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2.
The judge gave the following charge on the standard of care for negligence:
Negligence may be the doing of an act which the reasonably prudent person would not have done. Or it may be the failure to do that which a reasonably prudent person would have done under the circumstances then existing.
Negligence is a departure from that standard of care by a reasonably prudent person in this case. It is not meant your average person. Because in this case you have the plaintiff has to be a reasonably prudent nurse. And you have a defendant who has to be a reasonably prudent person with diminished cognitive capacity.
So you have to determine whether each of these parties acted within the realm of what the person with their particular factors was reasonable and prudent in the way they acted, considering one was a nurse, and one was an Alzheimer's patient.
Now, in determining the standard of care that defendant, Edmund Gernannt should have used on November 11th, 1997, you must measure his actions as you would a reasonably prudent person who has Alzheimer's dementia.
This willingness to necessitate your determination from all the testimony that was given from doctors and nurses and lay people as to what level of mental functioning the defendant Gernannt had at the time of this accident.
You must take into consideration the defendant as an impaired person's capacity to understand and avoid the danger to which he was exposing plaintiff Berberian in the actual circumstances of this case.
Defendant has the burden to prove by a preponderance of evidence that defendant, Edmund Gernannt had such deficient mental capacity at the time of the accident that he had no capacity to avoid the danger of pushing the plaintiff, Mary Berberian. And you will take into consideration all of the context of what you heard about the types of information that Mr. Gernannt was able to process at the time that this accident happened.
You have to take into account what you heard about the interactions between plaintiff and defendant preceding and on the day of this accident to determine whether the defendant Gernannt has proven he had no capacity to understand the consequences of his actions. And that has to be proven to you by a preponderance of evidence.
In order to establish negligence here, it is not necessary that it be shown that either party had an evil heart or an intent to do harm to the other. Thus, each party in this case was required to exercise the foresight, the prudence, and the caution which a reasonably prudent person of their particular category would exercise under the same or similar circumstances.
You must determine whether each party, that is the plaintiff and the defendant in this case, has conformed to or departed from the standard of care that I have described to you.
During its deliberations, the jury asked whether it need be shown that Gernannt was aware of the consequence of his actions in order to be found negligent. In response to this jury inquiry, the judge instructed the jury that:
The answer to your question is, no, the plaintiff doesn't have to prove that to you. Without more on the record by the defense side, the plaintiff has shown you that the defendant pushed her.
*872 A person who pushes another person is responsible for the consequences of that act. The defendant has to prove to you that the status of this man's mind was such that he could not appreciate the danger in which he placed another. Not the exact consequences that happened, just that he could not appreciate the danger he placed Mrs. Berberian in by pushing her.
And he hadthe defendant has to prove to you that he had either no capacity to appreciate that danger or he had such diminished capacity to appreciate it that he didn't have any appreciation of the danger to which he placed Mrs. Berberian on November 11th, of 1996. But it's defendant's burden to prove that to you.
If they have proven that to you, then that's correct, that the defendant, Mr. Gernannt couldn't be found negligent. But if they have not proven to you that he lacked the capacity to appreciate the danger he placed Mrs. Berberian in, then he would havehe is negligent. And you would have to say yes, he was negligent as far as pushing Mrs. Berberian.
So you have to find whether defendant proved that the defendant's mind was such that he couldn't appreciate the danger.
Plaintiffs claim that the instruction that Gernannt could not be found negligent if he lacked the capacity to appreciate the consequences of his actions was erroneous. Plaintiffs argue that the standard upon which the negligence of a mentally deficient person is determined should be the reasonable person standard in Model Jury Charge (Civil) § 5.10 Negligence and Ordinary Caregeneral, without regard to his or her mental illness or deficiency. In support of their argument plaintiffs note that this principle is included in the Restatement, (Second) of Torts (1965), that several cases state that mental incompetence does not excuse an individual tortfeasor, and that the Restatement rule was relied upon in Stuyvesant Assoc. v. Doe, 221 N.J.Super. 340, 341, 534 A.2d 448 (Law Div.1987). In pertinent part, the Restatement (Second) of Torts, § 283B (1965) provides:
Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.
This standard, however, does not apply to the circumstances of the case at hand. Stuyvesant did not address an individual committed to a mental institution, and under its care, but rather a defendant-tenant who had been diagnosed as schizophrenic and who received regular injections as treatment to control his behavior. The Law Division Judge noted the cited Restatement of Torts section and concluded that a reasonable person under the same circumstances as defendant would be expected to get the injections as scheduled. Stuyvesant, supra (221 N.J.Super. at 343, 534 A.2d 448). Consequently, the tenant allowed his condition to result in the damages to the premises and warranted his eviction and a judgment for possession. Ibid.
While recognizing the Restatement of Torts principle that mental disability does not generally excuse a person from liability for conduct that does not conform to the standard of a reasonable person under like circumstances, several courts in other jurisdictions have nonetheless considered the mental capacity of an adult with mental disabilities when determining the potential negligence liability of institutionalized Alzheimer's patients. See, e.g., Creasy v. Rusk, 730 N.E.2d 659, 666-667 (Ind.2000) *873 (Alzheimer's patient owed no duty to his nursing assistant to refrain from violent behavior because he did not have the capacity to control his behavior and the relationship between the parties as well as public policy considerations, weigh against imposing liability). As a result, other states have not imposed liability on institutionalized patients for injuries suffered by a paid hospital attendant as a result of a patient's negligence. Colman, supra (968 F.Supp. at 813) (citing Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal. Rptr.2d 713, 716 (1996)); Gould v. American Family Mutual Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282, 283 (1996) (institutionalized individual cannot be liable for injuries caused to caretakers who are employed for financial compensation); Mujica v. Turner 582 So.2d 24, 25 (Fla.Dist.Ct. App.1991) (holding physical therapist could not recover from nursing home patient suffering from Alzheimer's disease who injured her). Cf. Gianni v. County of Bergen, 251 N.J.Super. 486, 598 A.2d 933 (App.Div.1991), certif. denied, 127 N.J. 565, 606 A.2d 375 (1992) (no liability of Bergen Pines County Hospital under Tort Claims Act where one patient injures another).
No New Jersey cases directly address the standard of care that should be applied for an institutionalized Alzheimer's patient in a negligence case involving hospital personnel charged with his care. However, a similar issue was addressed in Cowan v. Doering, 111 N.J. 451, 459-460, 545 A.2d 159 (1988), where a patient being treated for an overdose of sleeping pills in an earlier suicide attempt, jumped from a second story hospital room window in another suicide attempt. The Court adopted a flexible capacity-based standard for the contributory negligence of mentally disturbed plaintiffs which measures the conduct of such a plaintiff in light of his or her mental capacity and is similar to that used for infant plaintiffs. Ibid. In particular, Cowan noted that this standard "recognizes that a mentally disturbed plaintiff is not capable of adhering to a reasonable person's standard of self-care, but at the same time holds that plaintiff responsible for the consequences of conduct that is unreasonable in light of the plaintiff's capacity." Id. at 460, 545 A.2d 159.
We conclude that the analysis in Cowan for mentally disturbed plaintiffs in contributory negligence cases should likewise apply to mentally disturbed defendants in negligence cases,[4] particularly when institutionalized for care for that very condition. Thus, the appropriate capacity-based standard of care for mentally incompetent defendants, such as Gernannt, is that of a reasonable prudent person who has Alzheimer's disease in light of the defendant's capacity. The trial judge appropriately explained to the jury that it must take into account that Gernannt was an Alzheimer's patient with an impaired capacity to understand the consequences of his actions. The judge also explained that Gernannt could not be found negligent if the defense had proven to the jury that Gernannt had such a diminished capacity that he could not appreciate the danger in which he placed his care-giver, Berberian, on the date of the incident.
The jury charge here was consistent with Cowan and decisions in other jurisdictions that have addressed the negligence liability of mentally disturbed individuals, including Alzheimer's patients. In our view, the flexible capacity-based standard is appropriate when considering the potential negligence liability of Alzheimer's patients, such as Gernannt, towards their *874 care-givers, and we conclude such relaxation of the reasonable person standard was appropriate here. Thus, the trial judge properly instructed the jury to consider Gernannt's mental disability when determining his liability, and explained that Gernannt could not be found negligent if the jury determined that he lacked the capacity to understand the consequences of his actions.
Because the jury absolved Gernannt of liability it is not necessary for us to reach defendant's alternative argument that the trial judge should have granted an involuntary dismissal under the circumstances of Berberian's claim based upon Gernannt's incompetency.
Affirmed.
LINTNER, J.A.D. (concurring).
Although I concur with the decision and the result, I add this concurrence because I believe that under the facts of this case the trial judge should have granted Gernannt's motion for involuntary dismissal.
The facts here justify diverting from the widely accepted rule that mentally incompetent individuals are held to an objective reasonable standard of care and are thus responsible for the torts they commit regardless of their capacity to comprehend their actions. Restatement (Second) of Torts § 283B (1965). It is undisputed that at the time of the incident Gernannt was suffering from Alzheimer's, being institutionalized and cared for because of his disease. His Alzheimer's was permanent, progressive and rendered him severely demented. It formed the basis for entry of a prior judgment that he was mentally incompetent, thus unable to care for himself, being a danger to himself and others. There was no issue of fact that Gernannt lacked the capacity to understand the consequences of his actions.
Plaintiff was the charge nurse employed by the hospital to care for Gernannt's behavioral condition, the nature of which was known by the staff. The conduct for which plaintiff seeks to hold Gernannt liable was the reason he was institutionalized and under her care. I do not suggest that a person's mental incompetency standing alone is sufficient to establish a defense to negligence. There are a myriad of different mental illnesses which are very complex and, depending upon the circumstances of each individual case, may or may not require consideration by a jury. There is no need, therefore, to depart from the general rule that mentally disabled persons are responsible for their tortious acts. However, I am equally convinced that the general rule does not apply to the circumstances here. To hold that Gernannt had a duty would be to place too great a burden on him because his dementia and corresponding inability to act reasonably, and even violently, is the very reason for his being institutionalized and under the care of plaintiff. Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282, 283 (1996); see also Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809, 813 (D.Conn.1997); Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713, 716 (1996); Mujica v. Turner, 582 So.2d 24, 25 (Fla.Dist.Ct.App.1991); Creasy v. Rusk, 730 N.E.2d 659, 666-67 (Ind.2000).
This rationale is not unique. It is the same reasoning that gave rise to the fireman rule.
[T]he fireman's business [is] to deal with that very hazard and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the *875 special services for which he is trained and paid.
[Krauth v. Geller, 31 N.J. 270, 273-74, 157 A.2d 129 (1960); see also Berko v. Freda, 93 N.J. 81, 85, 459 A.2d 663 (1983).]
Although the result would be the same, I believe the judge erred in denying Gernannt's motion for involuntary dismissal, R. 4:37-2(b), and thus it would have been unnecessary to have a jury trial.
NOTES
[1] Emanuel Berberian asserted a per quod claim. References to plaintiff or Berberian in this opinion refer to Mary Berberian unless otherwise indicated.
[2] Bergen Pines is a county hospital and thus a public entity. See Gianni v. Bergen Pines County Hospital, 251 N.J.Super. 486, 598 A.2d 933 (App.Div.1991), certif. denied, 127 N.J. 565, 606 A.2d 375 (1992).
[3] Dr. Ramay testified at deposition that a multi-team approach, involving the family doctor, and long term care staff, is used to determine whether to transfer the patient. After considering these factors, the doctor made the final decision regarding the transfer of Gernannt.
[4] What occurred could also be viewed as an intentional act by defendant, but it is questionable that the requisite intent could be established. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/554033/ | 923 F.2d 284
Keith W. ZETTLEMOYER, Appellant,v.Thomas A. FULCOMER, Superintendent, State CorrectionalInstitution at Huntingdon, Pennsylvania andHonorable Leroy S. Zimmerman, AttorneyGeneral of the Commonwealth ofPennsylvania, Appellees.
No. 88-5543.
United States Court of Appeals,Third Circuit.
Argued March 30, 1989.Reargued Oct. 12, 1990.Decided Jan. 16, 1991.Rehearing and Rehearing In BancDenied March 20, 1991.
Thomas B. Schmidt (argued), Pepper, Hamilton & Scheetz, Harrisburg, Pa., for appellant.
Richard A. Lewis, Dist. Atty., Todd B. Narvol, Sr. Deputy Dist. Attorney for Dauphin County (argued), Harrisburg, Pa., for appellees.
Before SLOVITER, GREENBERG, and NYGAARD, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
1
Petitioner Keith W. Zettlemoyer appeals to this court from an order of the United States District Court for the Middle District of Pennsylvania entered May 31, 1988, dismissing his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We have jurisdiction under 28 U.S.C. Sec. 1291. We will affirm the order of the district court dismissing Zettlemoyer's petition.
I. PROCEDURAL AND FACTUAL HISTORY
2
Zettlemoyer murdered Charles DeVetsco on October 13, 1980, one week before DeVetsco was to be a witness for the Commonwealth of Pennsylvania at a trial of several felony charges against Zettlemoyer. Two police officers arrested Zettlemoyer, who was heavily armed, after they heard the shots that killed DeVetsco at a railroad yard in Harrisburg in the early morning hours. The unmistakable inference from the evidence is that Zettlemoyer, who knew that DeVetsco was to be a witness at the ensuing trial, kidnapped and executed him so that he could not testify.
3
At the murder trial in the Dauphin County Court of Common Pleas, Zettlemoyer did not contest that he had killed DeVetsco but presented a defense of "diminished capacity." The jury returned a verdict of guilty of first degree murder and on the same day determined that a death sentence should be imposed under 42 Pa.Cons.Stat.Ann. Sec. 9711 (Purdon 1982 & Supp.1990), the germane portions of which provide:
4
(a) Procedure in jury trials.--
5
(1) After a verdict of murder of the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.
6
(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).
7
(3) After the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death. The court shall then instruct the jury in accordance with subsection (c).
8
....
9
(c) Instructions to the jury.--
10
(1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters:
11
(i) the aggravating circumstances specified in subsection (d) as to which there is some evidence.
12
(ii) the mitigating circumstances specified in subsection (e) as to which there is some evidence.
13
(iii) aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt; mitigating circumstances must be proved by the defendant by a preponderance of the evidence.
14
(iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.
15
....
16
(d) Aggravating circumstances.--Aggravating circumstances shall be limited to the following ...
17
....
18
(5) The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.
19
....
20
(e) Mitigating circumstances.--Mitigating circumstances shall include the following:
21
(1) The defendant has no significant history of prior criminal convictions.
22
(2) The defendant was under the influence of extreme mental or emotional disturbance.
23
(3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
24
(4) The age of the defendant at the time of the crime.
25
(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution ... or acted under the substantial domination of another person.
26
(6) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal acts.
27
(7) The defendant's participation in the homicidal act was relatively minor.
28
(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.
29
42 Pa.Cons.Stat.Ann. Secs. 9711(a)-(e).
30
After the Court of Common Pleas denied Zettlemoyer's post-trial motions, he filed a direct appeal to the Supreme Court of Pennsylvania which affirmed his conviction and sentence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).1 Zettlemoyer then filed a petition seeking a new trial in the Court of Common Pleas under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa.Cons.Stat.Ann. Secs. 9541-9551, but on August 26, 1985, that court denied the petition without a hearing.2 Commonwealth v. Zettlemoyer, 106 Dauphin County Repts. 215 (1985). Zettlemoyer appealed from the denial of the petition to the Superior Court which affirmed on July 2, 1986. Commonwealth v. Zettlemoyer, 359 Pa.Super. 631, 515 A.2d 620 (1986). He then sought leave of the Supreme Court of Pennsylvania to appeal, but that application was denied by order dated December 23, 1986. Commonwealth v. Zettlemoyer, 513 Pa. 34, 518 A.2d 807 (1986). Zettlemoyer then filed a petition for a writ of certiorari in the United States Supreme Court on February 13, 1987, but it, too, was denied on April 6, 1987. Zettlemoyer v. Pennsylvania, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987).
31
On July 17, 1987, Zettlemoyer filed his petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania challenging the constitutionality of the Pennsylvania death penalty statute, alleging errors by the trial court, and asserting that he had had ineffective assistance of trial counsel. In the petition Zettlemoyer set forth that he was arrested while heavily armed in the early morning hours of October 13, 1980, when the police officers heard the gun shots. Zettlemoyer admitted being acquainted with DeVetsco and acknowledged that DeVetsco was scheduled to testify against him in criminal proceedings in Snyder County. Zettlemoyer made no claim in the petition that he had not murdered DeVetsco.
32
Zettlemoyer set forth that the Pennsylvania death penalty statute is unconstitutionally mandatory and vague, and unconstitutionally shifts the risk of nonpersuasion because defendants must prove mitigating circumstances by a preponderance of the evidence. He also urged that his trial counsel was ineffective in failing to present competent psychological testimony on the issue, central to his defense, of diminished capacity, and in failing to present psychological testimony at the sentencing phase. He asserted that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty and thus violated the holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer led to believe that responsibility for determining the appropriateness of the defendant's death rests elsewhere. He further contended that the trial court erred by failing to instruct the jury that if it was unable to agree unanimously that the death penalty should be imposed, it was free to decide by less than a unanimous vote to impose a life sentence under 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1).3
33
The district court dismissed the petition in a memorandum opinion and order. Zettlemoyer v. Fulcomer, No. 87-0993 (M.D.Pa. May 31, 1988).4 It explained that the Pennsylvania death penalty statute is not unconstitutionally mandatory because it "mandates a sentence of death only after a jury acting with channeled discretion finds that aggravating circumstances outweigh mitigating circumstances." Id. at 20 (citing Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985)). The court continued that the statute is not unconstitutionally vague because "[u]nder Pennsylvania law, the Commonwealth has the burden of proving beyond a reasonable doubt every element of the offense in the guilt phase of the trial, as well as proving the aggravating circumstances beyond a reasonable doubt." Zettlemoyer, slip op. at 21. It reasoned that the statute eliminates total arbitrariness and capriciousness and appropriately channels the sentencer's discretion because it "focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed." Id. (quoting Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976)). The court also rejected Zettlemoyer's challenge that the statute impermissibly shifts the risk of nonpersuasion to defendants, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), for the holding that it was proper to place the burden of proving an affirmative defense on the defendant. Zettlemoyer, slip op. at 22.
34
The court rejected Zettlemoyer's argument that his trial counsel was ineffective for not identifying and retaining a psychiatrist or specially-qualified psychologist competent to offer an expert opinion on his ability to form the specific intent to commit first degree murder, as he did not demonstrate prejudice from this omission. Id. at 13 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) (defendant must show counsel's deficient performance prejudiced defense so that it deprived him or her of a fair judicial proceeding with reliable result)). Likewise, the court found that counsel was not ineffective for failing to recall the psychologist who testified during trial at the sentencing phase because Zettlemoyer's father testified at the sentencing hearing, thus reinforcing his diminished capacity defense in the minds of the jury. Zettlemoyer, slip op. at 30.
35
Finally, the court found that the trial court's charge, when taken in its entirety, "properly explained to the jury the role which they were to play in weighing the aggravating and mitigating circumstances." Id. at 32. Additionally, the court found that the entire charge complied with the requirements of 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1) because "the court informed the jury that the only possible way it could return a sentence of death would be if the Commonwealth proved beyond a reasonable doubt, and the jury unanimously agreed, that there was an aggravating circumstance and no mitigating circumstances, or that the aggravating circumstances outweighed any mitigating circumstances." Zettlemoyer, slip op. at 32. The court, therefore, dismissed the petition, stating in its order that "any appeal from this order will be deemed frivolous, lacking in probable cause and not taken in good faith." Id. at 35.
36
Zettlemoyer then appealed to this court on June 29, 1988, and we subsequently issued a certificate of probable cause and scheduled oral argument for March 30, 1989. However, on March 27, 1989, the United States Supreme Court granted certiorari in Blystone v. Pennsylvania, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989), on the question of whether the Pennsylvania death penalty statute is unconstitutional because "it improperly limits the full discretion the sentencer must have in deciding the appropriate penalty for a particular defendant." Accordingly, though we did hear oral argument on March 30, 1989, we deferred decision on the appeal pending disposition of Blystone.
37
On February 28, 1990, the Supreme Court held that the Pennsylvania death penalty statute, notwithstanding its "mandatory" language, satisfies the requirement that a capital-sentencing jury be allowed to consider and to give effect to all relevant mitigating evidence and, therefore, does not violate the Eighth Amendment's proscription against cruel and unusual punishment. Blystone v. Pennsylvania, --- U.S. ----, 110 S.Ct. 1078, 1082, 108 L.Ed.2d 255 (1990). The Court found that the death penalty is not automatically imposed for certain types of murders; rather, "[i]t is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime by the particular defendant, or that there are no such mitigating circumstances." Id. 110 S.Ct. at 1082-83.
38
Following the decision in Blystone, we called for and received additional briefs and heard argument again. In his supplemental brief, Zettlemoyer argues that the Pennsylvania death penalty statute is unconstitutional as applied to him, attempting to distinguish Blystone on the basis that in Blystone the petitioner presented no mitigating circumstances whereas he had done so. Zettlemoyer argues that the mandatory result of the jury's process of weighing aggravating and mitigating circumstances excluded it from making a "unique judgment" about him as a "specific defendant." Additionally, he reiterates the ineffective assistance of counsel and improper jury instruction arguments made to the district court.
II. DISCUSSION
A. Scope of Review
39
Our scope of review is limited as we sit not to retry state cases de novo but rather to examine the proceedings in the state court to determine if there has been a violation of federal constitutional standards.5 Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1 (1972). Accordingly, we do not exercise the supervisory power that we might possess on an appeal from a conviction in the district court. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Where, as here, a district court has denied a petition for habeas corpus without holding an evidentiary hearing, our review consists of a two-step analysis. Smith v. Freeman, 892 F.2d 331, 338 (3d Cir.1989) (citing Toomey v. Clark, 876 F.2d 1433, 1435 (9th Cir.1989)). First, we must determine whether the petitioner has alleged facts that, if proved, would entitle him to relief. Smith, 892 F.2d at 338 (citing Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Toomey, 876 F.2d at 1435). If so, we must then decide whether an evidentiary hearing is necessary to establish the truth of those allegations. Smith, 892 F.2d at 338 (citing Townsend, 372 U.S. at 312-19, 83 S.Ct. at 756-60; Toomey, 876 F.2d at 1435). We therefore consider the facts in this case in the light most favorable to Zettlemoyer. Smith, 892 F.2d at 338 (citing Keller v. Petsock, 853 F.2d 1122, 1128 (3d Cir.1988)). Of course, his contentions implicating the interpretation and application of legal precepts receive plenary review. Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir.1983) (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981)). Furthermore, we freely review the district court's conclusions regarding the competency of Zettlemoyer's trial counsel. Lewis v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir.1990).
B. The Blystone Ruling
40
Zettlemoyer's argument that the Pennsylvania death penalty statute is unconstitutional as applied to him centers on the instruction to the jury that it was required to impose the death penalty if the result of a weighing process tipped in favor of the aggravating circumstance. He contends that the jury's discretion in applying the death penalty was thus unconstitutionally removed and he could not be individually judged.
41
In Blystone, the Supreme Court held that, notwithstanding its "mandatory" language, the Pennsylvania death penalty statute is not unconstitutional on its face because it satisfies the requirement that a capital-sentencing jury be allowed to consider and to give effect to all relevant mitigating evidence and because the death penalty is not automatically imposed for certain types of murders. The Court explained that rather "[i]t is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime by the particular defendant, or that there are no such mitigating circumstances." Blystone v. Pennsylvania, 110 S.Ct. at 1082-83. Additionally, the Court held that the statute was not unconstitutional as applied to Blystone who was convicted of first-degree murder, robbery, criminal conspiracy to commit homicide, and criminal conspiracy to commit robbery. Id. at 1084. The jury which convicted Blystone returned a death penalty verdict after finding, pursuant to Pa.Cons.Stat.Ann. Sec. 9711(d)(6), the aggravating circumstance that Blystone committed a killing while in the perpetration of a felony and further finding that there were no mitigating circumstances.6 110 S.Ct. at 1081.
42
The Court rejected Blystone's argument that where a jury found there were no mitigating circumstances, mandatory imposition of death violated the Eighth Amendment requirement of individualized sentencing since the jury was precluded from considering whether the severity of the aggravating circumstance warranted the death penalty. Id. at 1083. The Court explained that "[t]he presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighed by a jury.... The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence." Id. (emphasis added) (citing Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988)). Finding that the trial court "specifically instructed the jury to consider, as mitigating evidence, any 'matter concerning the character or record of the defendant, or the circumstances of his offense,' " the Court concluded that the statute, as applied, did not violate the Eighth Amendment. 110 S.Ct. at 1083-84. Moreover, the Court concluded that the trial court's examples of mitigating circumstances did not preclude the jury's considering any other mitigating factors. Id. at 1084.
43
Blystone is dispositive on Zettlemoyer's statutory constitutional issue. The trial court here instructed the jury on mitigating circumstances as follows:
44
There are in the law--well, there's an unlimited number. They list eight. They list seven and they say, any other evidence of mitigation concerning the character. Four of them may be applicable to this case, the others are not. They are one, that the defendant has no significant history of prior criminal convictions; two, he was under the influence of extreme mental or emotional distress; the third one, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; four, the age of the defendant at the time of the crime and then this eighth one; any other evidence of mitigation, which would be the fifth one to consider, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.
45
All of the evidence from both sides that you have heard earlier, of course, during the trial in chief, all of that which has any bearing in your judgment upon aggravating or mitigating circumstances as I have mentioned them is important or proper for you to consider.
46
App. at 203-04.
47
The court, therefore, instructed the jury that several mitigating circumstances might apply to Zettlemoyer for this particular crime. The trial court instructed the jury to consider Zettlemoyer's age, mental and emotional status at the time of the crime, and absence of a criminal record. These factors distinguished him from other defendants and provided the individualized consideration required by Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (individualized sentencing required by fundamental respect for humanity underlying Eighth Amendment). Additionally, because the jury retained discretion in assigning weight to these factors and in weighing them against any aggravating circumstances, the statutory plan did not "automatically" impose a sentence of death. See id. (statute that automatically imposes death sentence without particularized consideration of character and record of defendant struck down); Roberts v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 3006-07, 49 L.Ed.2d 974 (1976) (same).
48
The Blystone Court held that a trial court's specific instruction to the jury to consider, as mitigating evidence, any "matter concerning the character or record of the defendant, or the circumstances of his offense," complied with the requirements of the Eighth Amendment. Blystone, 110 S.Ct. at 1083-84. See also Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) (jury must be able to consider and to give effect to any mitigating evidence relevant to defendant's background, character, or circumstances of crime); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) (sentencer must be allowed to consider any aspect of defendant's character or record and any circumstances of the offense as mitigating factors). The trial court here gave this exact instruction. See App. at 203. Additionally, the court instructed the jury to consider all evidence presented from both sides during both the guilt and sentencing phases of trial "which has any bearing in your judgment upon aggravating and mitigating circumstances." Id. at 203-04 (emphasis added). This broad instruction permitted the jury to consider mitigating factors in addition to the character, record, or offense evidence required by Blystone. This unrestricted consideration of mitigating circumstances clearly meets the Eighth Amendment's requirements. See Blystone, 110 S.Ct. at 1083-84; Penry, 109 S.Ct. at 2947; Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (plurality opinion). We, therefore, reject Zettlemoyer's argument that the statute is unconstitutional as applied to him.
C. Competency of Counsel
49
Zettlemoyer argues that his trial counsel was ineffective for not presenting competent psychological testimony on the issue of diminished capacity at the trial and not presenting psychological testimony or affirmative evidence at the sentencing hearing. We will address these contentions seriatim.
1. Guilt Phase
50
During the guilt phase of the trial, Zettlemoyer's counsel presented Dr. Stanley Schneider to testify to his diagnosis of Zettlemoyer's mental condition. Dr. Schneider is a clinical psychologist licensed in Pennsylvania who had been Director of the Department of Psychology at the Harrisburg State Hospital. App. at 114. Dr. Schneider interviewed and tested Zettlemoyer on three separate occasions, interviewed his paternal grandparents, parents, and one sister, and reviewed Zettlemoyer's school and police records. Id. at 126. During his meetings with Zettlemoyer, Dr. Schneider administered seven different psychological tests within three general categories; intellectual functioning,7 personality,8 and "projected tests" which gave Zettlemoyer the opportunity to project his own "unique thoughts, ideas, anxieties, needs, [and] conflicts" in response to certain relatively unstructured stimuli.9 Id. at 128-30. The tests indicated that Zettlemoyer functioned in the average range of intelligence with some deficits in his common sense and practical judgment, particularly as it related to interpersonal relationships. Id. at 131. Zettlemoyer's intelligence was also weak when compared to his age group and the personality test revealed that he apparently distorted his responses to exaggerate his symptoms. Id. at 131-32. Dr. Schneider did not find any evidence of organic or physical involvement or any suggestion of trauma to the brain or central nervous system. Id. at 133. Dr. Schneider testified that the projected tests revealed that Zettlemoyer was not psychotic, but had limited ability to tolerate adversity, and that too much emotional stimulation caused a loss in his judgment. Id. at 134-35. Dr. Schneider concluded that Zettlemoyer was a paranoid personality with schizoid features and that Zettlemoyer had suffered this personality disorder for his entire life. Id. at 137-41.
51
At one point, Dr. Schneider testified that he was:
52
a pampered, doted upon, catered to, in simple terminology spoiled brat who figured out how to get what he wanted, either directly or by manipulating or controlling the situation to get what he wanted his entire life and I believe that faced with the number of stresses that he had to deal with that he could not cope with, and he decompensated [and] ... engaged in a variety of unproductive behaviors.
53
Id. at 143.
54
Zettlemoyer's counsel then asked Dr. Schneider:
55
I specifically want to direct your attention to October the 13th of 1980, to the early morning hours, I want to ask you with a reasonable degree of medical certainty, was the Defendant's mental illness of such an intensity at that time, at the time of the killing, that he was not mentally capable of fully forming the specific intent which is required for a willful deliberate and premeditated act?
56
Id. at 148.
57
The trial court sustained the district attorney's objection to this question and refused to permit Dr. Schneider to answer, stating at sidebar that "assuming all these things are correct, [it] is no legal excuse for a crime." Id. at 149. The court reasoned that, notwithstanding Dr. Schneider's thorough examination of Zettlemoyer's personality, Dr. Schneider could not testify whether, at the time of the killing, Zettlemoyer could form a specific intent to kill because the testimony did not lay a proper foundation for that conclusion. Id. at 151-52.
58
Zettlemoyer does not contend that this ruling was incorrect, as he admits that Dr. Schneider was not "qualified" and "competent to offer the opinion testimony for which he was called as a witness by [his] trial counsel." Brief at 13. Of course, the Supreme Court of Pennsylvania upheld the ruling under state law on the direct appeal. Commonwealth v. Zettlemoyer, 500 Pa. at 27, 454 A.2d at 943.
59
Rather, Zettlemoyer claims that his counsel was ineffective because he did not identify or secure a witness who could have provided competent opinion testimony on the defense of diminished capacity at the guilt phase of the trial. He also contends that trial counsel was ineffective because Dr. Schneider's key testimony was inadmissible and because the counsel produced negative personality testimony, without the ultimate conclusion that such factors reduced his culpability, thereby prejudicing his case. He also claims prejudice from the trial court's instruction to the jury, in which he maintains the court "interjected its negative opinion of the core of [his] defense, suggesting that Dr. Schneider's testimony should be disregarded." Brief at 16.
60
The Supreme Court set forth the criteria for determining whether relief may be granted on the ground of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A petitioner must show (1) that counsel made errors so serious that counsel's representation fell below an objective standard of reasonableness, and (2) that such failure resulted in prejudice so as to deprive the petitioner of a fair trial, that is, a trial whose result is reliable. Id. at 688, 104 S.Ct. at 2064. However,
61
a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function ... is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
62
Id. at 690, 104 S.Ct. at 2066.
63
In order to resolve the ineffectiveness claim, we must consider Zettlemoyer's counsel's conduct within the context of Pennsylvania law regarding the defense of diminished capacity. Pennsylvania recognizes the defense to show that a defendant did not have the capacity to possess the state of mind required by the legislature to commit a particular degree of the crime charged. Commonwealth v. Walzack, 468 Pa. 210, 220-21, 360 A.2d 914, 919-20 (1976).10 Defendants invoking the defense of diminished capacity, however, concede general criminal liability and Zettlemoyer has done this. Id. Evidence of diminished capacity is admissible at the guilt phase of trial and a jury finding diminished capacity may not find the defendant guilty of first degree murder, but it may find the defendant guilty of third degree murder. Pennsylvania case law now establishes that, to prove diminished capacity, only expert testimony on how the mental disorder affected the cognitive functions necessary to form the specific intent is relevant and admissible. Commonwealth v. Terry, 513 Pa. 381, 393, 521 A.2d 398, 404, cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Davis, 331 Pa.Super. 59, 64, 479 A.2d 1077, 1080 (1984) (personality disorders are irrelevant to show diminished capacity). But when Zettlemoyer was tried the law was slightly different, as a finding of diminished capacity depended on whether the defendant had a "conscious intent to kill." Commonwealth v. Sourbeer, 492 Pa. 17, 31-32 n. 2, 422 A.2d 116, 123 n. 2 (1980); Commonwealth v. Brantner, 486 Pa. 518, 523, 406 A.2d 1011, 1014 (1979).
64
Evidence of specific intent to kill may disprove the defense of diminished capacity. See Commonwealth v. Tempest, 496 Pa. 436, 442, 437 A.2d 952, 955 (1981). In Tempest, the Supreme Court of Pennsylvania held that evidence adduced at trial that showed the defendant planned the killing days in advance, considered various means to kill, persisted despite the victim's pleas, and repeated at various times her motive for the killing, sufficed to enable the trier of fact to reject the diminished capacity defense. Id. The defendant presented evidence that she suffered from chronic schizophrenia, acute type. Id. at 439, 437 A.2d at 954. The trial court had initially determined that the defendant was incompetent to stand trial but less than two years later, she was adjudged competent. Id. at 439-40, 437 A.2d at 954. Notwithstanding this evidence, the Supreme Court affirmed her conviction of first degree murder, concluding that the Commonwealth had adduced ample evidence to reject the diminished capacity defense and to prove that she possessed the specific intent to kill. Id. at 442, 437 A.2d at 955.
65
Likewise, in Commonwealth v. Davis, 331 Pa.Super. 59, 65, 479 A.2d 1077, 1080 (1984), the Superior Court upheld the trial court's rejection of the defendant's diminished capacity defense and affirmed his conviction of first degree murder. Id. The defendant had presented evidence that he had experienced a schizophrenic episode at the time of the murder. Id. The Superior Court noted that the trier of fact had evidence of specific intent to kill, including the defendant's shooting the decedent twice at close range, his prior threats to kill her, his threat to cut her throat while holding a knife to her neck, his breaking into her apartment in the early hours possessing a deadly weapon, and his firing shots at her as she fled the apartment. Id. at 64, 479 A.2d at 1080. In light of this evidence, the court concluded that the record showed ample support for the trial court's discrediting the psychological testimony of diminished capacity. Id. at 65, 479 A.2d at 1081.
66
After considering Pennsylvania law and the record here, we conclude that Zettlemoyer is not entitled to relief on his claim that his counsel was ineffective for calling Dr. Schneider, even though his testimony was not admissible on the issue of diminished capacity. The colloquy at sidebar after the Commonwealth's objection to Dr. Schneider's testimony clearly shows that defense counsel was familiar with the diminished capacity defense and its requirements. See App. at 149-50. Counsel referred the court to three diminished capacity cases, Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979), and Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914, in his attempt to persuade the court to permit Dr. Schneider to give his opinion on Zettlemoyer's mental capability to form specific intent to kill. App. at 149-50. It is obvious, therefore, that he had thoroughly researched the defense. The trial court rejected counsel's arguments by distinguishing these precedents on their facts. Id. at 149, 151 (distinguishing Sourbeer, 492 Pa. at 25-26, 422 A.2d at 119-20 (psychiatrist testified that defendant had passive-aggressive personality with antisocial tendencies); Brantner, 486 Pa. at 523, 406 A.2d at 1014 (psychiatrist testified that defendant had schizoid personality and was paranoid); Walzack, 468 Pa. at 215, 360 A.2d at 916 (defendant had undergone lobotomy)). Counsel cannot be deemed ineffective merely because he could not persuade the court to admit Dr. Schneider's opinion. He fully developed Dr. Schneider's testimony but it simply was not sufficient to lay a foundation for the opinion question. Yet there is nothing unusual in an attorney not being able to convince a court that evidence should be admitted.
67
Clearly, Zettlemoyer did have significant personality problems and it was reasonable strategy for counsel to bring them out in an attempt to convince the court to allow Dr. Schneider's testimony. A defense counsel cannot be deemed ineffective just because he is not successful. Finally, on this issue we point out that at the time of Zettlemoyer's trial, Pennsylvania law was in a state of flux regarding diminished capacity and even the Supreme Court of Pennsylvania was having difficulty dealing with the defense. See Commonwealth v. Zettlemoyer, 500 Pa. at 27-31, 454 A.2d at 943-44. Thus, it is not surprising that a defense counsel did as well.
68
In any event, the evidence that Zettlemoyer had the specific intent to kill was overwhelming. Zettlemoyer was very heavily armed when police discovered him at the scene of the murder. See Transcript of Trial, Vol. II, at 383-431. The police testified that they found on Zettlemoyer's person forty-one rounds of .357 federal ammunition; twenty-four in strip packets with more deadly semi-jacketed hollow points, and seventeen loose, and that he was carrying a knife with a six-inch blade and sheath, wore a shoulder holster, two beltkeepers, and an ammunition pouch. Id. at 399, 406, 428, 429, 431. Zettlemoyer carried two handcuff keys and a canister of tear gas and was dressed in dark clothing and black gloves. Id. at 383, 406, 428-29. An inventory search of his van, parked near the site of the murder, revealed two sets of handcuffs; two spent .22 caliber casings; and a .22 caliber pistol with holster and clip. Id. at 452. Just outside the van, police found a .357 live round on the ground. Id. at 459. Zettlemoyer drove his van as far back as possible into the deserted area where the murder occurred, to a point where it could not be seen. Transcript of Trial, Vol. I, at 8, 9; Vol. II, at 388. Surely this irrefutable physical evidence demonstrated that he had extensively prepared for the crime and had a specific intent to kill.
69
But there is more. The victim, DeVetsco, lived and worked in Sunbury, Pennsylvania, approximately one hour's drive from where his body was found. He carried no identification; his license, car, and car keys were at his apartment in Sunbury, suggesting that he was not willingly travelling from Sunbury to the murder scene in Harrisburg. Transcript of Trial, Vol. II, at 513, 514. The jury heard testimony that Zettlemoyer dragged the handcuffed DeVetsco, who already had been shot and was bleeding, from the van to the spot where Zettlemoyer shot him twice more. Transcript of Trial, Vol. I, at 22. In total, DeVetsco suffered two wounds in the back from a .22 caliber weapon and two wounds in the base of the neck, behind his left ear. Transcript of Trial, Vol. II, at 465-66. Zettlemoyer fired these last two shots from approximately two feet away while the victim lay on the ground. Id. at 472, 474. Discharging a deadly weapon aimed at a vital part of the body demonstrates specific intent to kill. See Commonwealth v. Davis, 331 Pa.Super. at 64, 479 A.2d at 1080.
70
The testimony also showed that Zettlemoyer had a motive to commit the murder. One week before the murder, during the jury selection for a trial on the indictment against Zettlemoyer handed down by a Snyder County jury, the list of prospective witnesses which included DeVetsco was read in Zettlemoyer's presence. Transcript of Trial, Vol. II, at 530-32. The trial was scheduled to begin one week after the murder. Id. at 532. There is no escaping the fact that this was a vicious, cold-blooded, premeditated execution-style murder.11
71
In light of this overwhelming evidence demonstrating Zettlemoyer's specific intent to kill DeVetsco, we conclude that Zettlemoyer was not prejudiced by Dr. Schneider's inability to testify to his cognitive functioning at the time of the murder. We cannot conceive that any expert opinion would have led the jury to disregard the compelling uncontroverted evidence of what actually happened and conclude that Zettlemoyer had a diminished capacity, predicated on a lack of a conscious or specific intent to kill. This crime was so carefully executed and reflective of specific planning that, it seems to us, a suggestion that Zettlemoyer had a diminished capacity, as that term is understood under Pennsylvania law, is nothing short of preposterous. Thus, even if counsel had been ineffective in failing to extract expert testimony to support a claim of diminished capacity, which he was not, Zettlemoyer is not entitled to habeas relief because the failure did not prejudice him by depriving him of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. Likewise, Dr. Schneider's testimony regarding Zettlemoyer's personality, which characterized him as, inter alia, a "spoiled brat," paled in comparison to the overwhelming evidence of his specific intent to kill. The testimony, while portraying Zettlemoyer in a less than flattering light, did not undermine the reliability of the result of the trial. There is no escape from the fact that the evidence in this case was overwhelming.
72
We recognize that Zettlemoyer maintains that counsel failed to call some other witness who might have presented testimony crucial to his defense of diminished capacity; however, he neither alleges nor offers evidence that any such testimony was forthcoming or available upon reasonable investigation. A witness cannot be produced out of a hat. Zettlemoyer cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations that some unspecified and speculative testimony might have established his defense. Rather, he must set forth facts to support his contention. See Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir.) (petitioner's vague and general allegations and supporting materials fail to make sufficient showing to justify relief), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987). Having failed to do so, he is not entitled to habeas relief on this claim.12 Furthermore, even if the counsel had produced a second expert witness, that witness would have been confronted with the uncontroverted evidence of Zettlemoyer's actual conduct and would not have been able to explain it away.
2. Sentencing Phase
73
The second aspect of Zettlemoyer's attack on his trial counsel relates to the sentencing phase of the trial. He claims that his counsel was ineffective in that he did not recall Dr. Schneider to testify at that hearing and did not present affirmative evidence during this phase. Rather, counsel called only one witness, Zettlemoyer's father, to testify about his son's mental and emotional health at the time of the murder.
74
We consider counsel's failure to recall Dr. Schneider in the context of Pennsylvania law. In Pennsylvania, a defendant has the burden to show mitigating circumstances by a preponderance of the evidence at the sentencing hearing. 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1)(iii). The Commonwealth stipulated to the existence of two mitigating factors: that Zettlemoyer had no prior criminal convictions under section 9711(e)(1) and that he was 25 years old, an arguably youthful age within section 9711(e)(4). App. at 180.
75
Dr. Schneider was the last defense witness during the guilt phase; the jury heard his testimony less than 24 hours before the sentencing hearing. Transcript of Trial, Vol. II, at 690-745. The Commonwealth put on only a minimal rebuttal case. Id. at 747-70. In fact the trial was quite short as both the guilt and sentencing phases were completed within one week. Dr. Schneider testified that Zettlemoyer was "unable ... to deal with the normal pressures, demands, [and] responsibilities of daily living." App. at 142. He stated that he believed that Zettlemoyer's "reaction over this period of time resulted in, well, what I refer to as a pressure cooker syndrome, pressure mounting up. If you don't have a release valve it will blow and that's where I believe that the emotional disturbance, in addition to the personality disorder, may have resulted in the behavior." Id. He continued that this "pressure cooker effect" worsened in the two weeks before the murder due to the publicity surrounding the robbery for which Zettlemoyer was charged. Id. at 145. This testimony goes to the two mitigating factors of the influence of extreme mental or emotional disturbance pursuant to section 9711(e)(2), and whether Zettlemoyer's capacity to appreciate the criminality of his conduct and to conform his conduct with the law were substantially impaired pursuant to section 9711(e)(3).
76
This testimony was reinforced at the sentencing phase by Zettlemoyer's father who testified that he had spoken with his son in the two weeks before the murder and that he could see the stresses building up in him. App. at 184. He further testified that, based on his observations and conversations with his son at that time, Zettlemoyer's capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law were substantially impaired. Id. at 185. He stated that, since his imprisonment, his son had "shown considerable remorse" and that he had "taken to religion to some extent which is something he never did before." Id. at 184.
77
In his closing argument, counsel specifically asked the jury to consider the testimony on diminished capacity. Id. at 192. Relevant portions of the closing argument include:
78
[T]wo [mitigating circumstances] deal with the mental capacities of the defendant; extreme mental or emotional disturbance or the capacity of the defendant to appreciate the criminality of his conduct.
79
....
80
Now, if you did not believe the defense of diminished capacity then I certainly hope that at least you would consider it in regards to life or death. The District Attorney has agreed to incorporate all that testimony that we presented to you at trial and I want you to consider it.
81
Id. at 191-92.
82
Additionally, the trial court instructed the jury to consider whether Zettlemoyer was under extreme mental or emotional distress and his capacity to appreciate the criminality of his conduct or to conform his conduct to the law, factors which may be mitigating circumstances under section 9711(e)(2) and (3). App. at 203-04. It likewise instructed the jury to consider all evidence presented by both sides during both the guilt and sentencing phases in determining the penalty. Id. at 203-04. See supra at 293.
83
In the circumstances, we see no deficiency in counsel's decision not to recall Dr. Schneider, as the choice plainly was well within the range of a professionally reasonable judgment. Counsel presented evidence to support the relevant mitigating circumstances during the guilt phase of the trial and both counsel and the court asked the jury to consider this evidence in its sentencing decision. We cannot hold that counsel's action in not recalling Dr. Schneider to repeat his testimony at the sentencing phase of this short trial in which the testimony from the guilt phase was then still quite fresh satisfied the Strickland standard of ineffectiveness that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. There is not the slightest doubt that the jury had a very complete psychological picture of Zettlemoyer as an individual.
84
In view of the foregoing, we find the following statement in Zettlemoyer's brief to be inexplicable:
85
Indeed, the testimony of Dr. Schneider at the trial of Mr. Zettlemoyer's guilt or innocence demonstrates that his opinion testimony at sentencing would have been admissible, relevant of Mr. Zettlemoyer's intellectual capacity and emotional situation at the time of the murder, and thus of central importance to the jury's consideration of mitigation.
86
Brief at 18-19.
87
The difficulty with this argument is that inasmuch as the guilt phase testimony was incorporated into the sentencing phase, Dr. Schneider's testimony not only "would have been admissible" at the sentencing phase, it was admitted. Zettlemoyer then continues his argument stating that trial counsel's affirmative case at the sentencing phase consisted only of the evidence of Zettlemoyer's father and that "[n]o use was made of Dr. Schneider." This statement is incomprehensible since the evidence from the guilt phase was incorporated into the sentencing phase. Indeed, in his closing argument at the sentencing phase, Zettlemoyer's counsel told the jury that: "The District Attorney has agreed to incorporate all that testimony that we presented to you at trial and I want you to consider it." Shortly thereafter he asked the jury to consider Zettlemoyer's mental sickness. The attack on trial counsel for making only, in the word used in Zettlemoyer's brief, a "perfunctory" case for Zettlemoyer's life is completely unfounded.
88
Our result is informed by a recent case in which a similar claim regarding the failure to recall a professional witness was rejected. The United States Court of Appeals for the Fourth Circuit recently held that counsel was not ineffective for not recalling, during the sentencing hearing, a psychiatrist who testified during the guilt phase of a trial. Clozza v. Murray, 913 F.2d 1092 (4th Cir.1990). The court explained that counsel had been able to introduce at the guilt phase all the mitigating evidence that could have introduced at the penalty phase. Id. at 1102. During a hearing in the state habeas corpus proceedings, the psychiatrist testified that his testimony at sentencing would not have been different than his testimony at the guilt phase. Id. Additionally, the court of appeals noted that the doctor's testimony, which was based on the premise that the defendant was intoxicated at the time of the offense, was vulnerable to impeachment on cross-examination because defendant testified that he was sober at the time. Id. The court concluded that counsel's decision not to recall the psychiatrist in light of the potential damage of his testimony was a reasonable tactical choice. Id. at 1102-03.
89
We also find that Zettlemoyer's claim that counsel was ineffective for failing to present other affirmative evidence during the sentencing phase is without merit. Counsel presented the stipulations, the testimony of Zettlemoyer's father, and incorporated the earlier testimony into the sentencing hearing. At the guilt phase Zettlemoyer's paternal grandmother and his mother described his conduct as a child and as a young man. In his brief, Zettlemoyer points to no evidence other than that of Dr. Schneider that might have been produced at the sentencing phase. Inasmuch as Dr. Schneider's evidence was before the jury as incorporated by reference, it is thus clear that Zettlemoyer has made no showing that counsel was not competent. He cannot rest on a conclusory allegation that he should have done more. Furthermore, the jury had information in support of a conclusion that four of the mitigating factors enumerated in section 9711(e) were present in this case.13
90
We have not overlooked the fact that the district court did not order an evidentiary hearing on the claim of counsel's ineffectiveness at the sentencing phase. Rather, we find on the record of this case that it would have been improper to have such a hearing. The law on the point is familiar. Where the facts are in dispute in a habeas case, a federal court must hold an evidentiary hearing if the petitioner did not receive a full and fair evidentiary hearing in state court, either at trial or in a collateral proceeding. Townsend v. Sain, 372 U.S. at 312, 83 S.Ct. at 756-57. A district court must hold a hearing if the petitioner has alleged facts that, if proved, would entitle him or her to relief and an evidentiary hearing is necessary to establish the truth of those allegations. Smith v. Freeman, 892 F.2d at 338. However, bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing. Mayberry v. Petsock, 821 F.2d at 185. See also Barry v. United States, 528 F.2d 1094, 1101-02 (7th Cir.) (insufficiently detailed affidavit that did not demonstrate that petitioners had actual proof of allegations is "patently insufficient" to require hearing under 28 U.S.C. Sec. 2255), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976).
91
We, of course, must only determine "the reasonableness of counsel's challenged conduct" and we judge this matter on the basis of an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 690, 104 S.Ct. at 2064, 2066. Here, it is perfectly clear that counsel's conduct was reasonable, because counsel made a complete record in support of a plea for a life sentence by incorporating the record from the guilt phase into the sentencing phase of the case, and supplementing it with Zettlemoyer's father's testimony.
92
We also reiterate that although Zettlemoyer complains that counsel did not produce affirmative evidence during the sentencing hearing, he has failed to specify any evidence that was available to counsel that he did not present during either the guilt phase or the sentencing phase of trial. At oral argument before us, appellate counsel maintained that trial counsel could have brought out the facts of petitioner's childhood and his proclivity to use violence; however, these facts were presented during the guilt phase. Likewise, counsel presented evidence of petitioner's mental and emotional instability during the guilt phase.
93
We understand why an evidentiary hearing on the issue of counsel's competency might be required in a case in which a petitioner could point to specific significant mitigating evidence, available to counsel at the time of the trial, that was not produced at a sentencing phase and was not before the jury from the guilt phase. In such a case, the court might not be able to judge the objective reasonableness of counsel's conduct without the counsel's explanation of the underlying trial strategy. But we do not have that situation, for Zettlemoyer's assertion that other evidence should have been presented is merely a conclusory allegation. Mayberry v. Petsock, 821 F.2d at 185. He has not made a preliminary showing that mitigating facts available to counsel were not produced at the trial. Thus, there is no open factual matter requiring resolution at an evidentiary hearing.
94
We will not require an evidentiary hearing absent identification of some facts that support a contention of ineffectiveness, because to do so will encourage meritless petitions burdening judicial resources. See Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066 ("The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense."). Litigation even in a death case must some day come to a conclusion. We reiterate that a district court must hold a hearing if a petitioner has alleged facts that, if proved, would entitle him or her to relief and an evidentiary hearing is necessary to establish the truth of those allegations. Smith v. Freeman, 892 F.2d at 338. But Zettlemoyer did not allege facts to satisfy this test and thus is not entitled to an evidentiary hearing.14 We refuse to order an evidentiary hearing for the purpose of conducting an inquisition into how the case was tried. The only way on the record before us that we could require an evidentiary hearing on counsel's effectiveness at the sentencing hearing would be to hold that the mere charge of ineffectiveness per se entitles a petitioner to a hearing. That is not the law and we will not so hold. In sum, we conclude that Zettlemoyer has failed to meet his burden to show that he is entitled to habeas relief based on ineffective assistance of counsel.15
95
While we have already explained why we will not order a hearing on the competency of counsel at the sentencing phase, in view of the interest at stake on this appeal it is especially appropriate to comment on the dissent from this aspect of our opinion. The dissent states that Dr. Schneider was testifying on the guilt phase on the diminished capacity defense and not to show mitigating circumstances, and that the jury did not hear his testimony from the perspective of whether Zettlemoyer's life should be spared. But Dr. Schneider completely described Zettlemoyer's mental condition and emotional state prior to the murder in the guilt phase, only hours before the sentencing phase and, though the purpose of that evidence somewhat changed between the phases, no one suggests that Dr. Schneider's evaluation of Zettlemoyer's mental condition and emotional state did. Furthermore, inasmuch as Dr. Schneider testified that Zettlemoyer's "emotional disturbance, in addition to the personality disorder, may have resulted in the behavior," he actually used the statutory term for a mitigating circumstance, "emotional disturbance," in describing the cause of Zettlemoyer's conduct. In the circumstances, it is clear why it was reasonable for counsel not to have the evidence repeated, even though it was originally presented on the diminished capacity defense. Of course, the petition for habeas corpus does not allege that Dr. Schneider withheld evidence at the guilt phase regarding Zettlemoyer's evaluation or his emotional state possibly helpful to Zettlemoyer in the sentencing phase.16
96
The dissent also contends that a hearing should have been held to determine why Zettlemoyer's mother was not recalled at the sentencing phase and to explain why counsel would not have called Zettlemoyer's friends, co-workers, or his former fiancee to support the claim of overwhelming emotional disturbance. It further contends that a hearing should be held so that trial counsel could explain his "complete failure" to present evidence of "catch-all" mitigating circumstances, though it acknowledges that Zettlemoyer points to no "specific significant mitigating evidence" which it agrees is "troubling."
97
But a decade has passed since this murder and Zettlemoyer has never alleged that he was deprived of the testimony which the dissent mentions, and we cannot by speculation supply a basis to remand a matter for a hearing to determine if counsel was incompetent in not producing this evidence when Zettlemoyer does not make a showing or even an allegation that it ever existed. Moreover, he does not assert that his mother should have been recalled. Except for Dr. Schneider, the petition for habeas corpus, which insofar as germane to the issue of competency of counsel at the sentencing phase we have set out in full, see note 14, supra, makes no reference to testimony of specific individuals who should have been presented at the sentencing phase and were not.17
D. The Jury Instructions
98
Zettlemoyer contends that the trial court's instructions to the jury were defective in several respects. First, he asserts that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty, in violation of the holding in the Supreme Court's subsequent decision in Caldwell v. Mississippi, 472 U.S. at 320, 105 S.Ct. at 2633. Second, he urges that the trial court's instruction erroneously suggested that the jury's finding on mitigating circumstances must be unanimous, a charge barred by Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Finally, he contends that the instructions were deficient because they did not include an instruction that, if the jury could not unanimously agree that the death penalty should be imposed, the court would impose a life sentence pursuant to section 9711(c)(1).
1. Teague v. Lane
99
Initially on the instructions point we note that Zettlemoyer must overcome Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality) in order for Caldwell to apply retroactively in this case. In Teague, the Supreme Court held that a determination of whether a decision is to be applied retroactively to cases on collateral review is "properly treated as a threshold question." Id. at 300, 109 S.Ct. at 1069. The Court held that new rules may be applied in habeas corpus proceedings only if they come within one of two narrow exceptions. Id. at 310, 109 S.Ct. at 1075. The first exception "applies to new rules that place an entire category of primary conduct beyond the reach of the criminal law, ... or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense." Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990) (citations omitted). "The second Teague exception applies to new 'watershed rules of criminal procedure' that are necessary to the fundamental fairness of the criminal proceeding." Id. 110 S.Ct. at 2831.
100
In general, a case announces a new rule if it "breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301, 109 S.Ct. at 1070. Put another way, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S.Ct. at 1070 (emphasis in original). That prior decisions "inform or even control or govern analysis of [the] claim' " is insufficient to require retroactive application of the rule. Sawyer, 110 S.Ct. at 2828.
2. Caldwell v. Mississippi
101
We turn first to Zettlemoyer's contention that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty. The trial court instructed the jury as follows:
102
Ladies and Gentlemen, you must now decide what sentence is to be imposed upon the defendant, whether it be death or life imprisonment. In a very proper sense, you are not really making that decision. You are not deciding whether he should be sentenced to death or life imprisonment. That was the law years ago and the Supreme Court of the United States declared such death penalties to be unconstitutional. I won't go into the reason. One of the theories was that it placed discretion on the jury. They could decide whether a particular individual could suffer death or life imprisonment. They have removed that burden from you. That is not what you are to decide. You are to decide whether there are certain aggravating circumstances or mitigating circumstances and depending upon how you find those circumstances, as I will explain to you, your decision follows. It must follow. If you find a certain way, a certain penalty must follow. That is the law.
103
....
104
So you see, it is not really your decision in a sense. You decide, of course, the underlying factors but it is the way you decide those factors that the penalty is imposed. That is the way the Supreme Court and our legislature have felt that they would remove that burden or that discretion from the jury.
105
App. at 200-02 (emphasis added).
106
In Caldwell v. Mississippi, 472 U.S. at 328-29, 105 S.Ct. at 2639-40, the Supreme Court held that the Eighth Amendment prohibits the imposition of a death sentence by a sentencer that has been led by the prosecuting attorney to the false belief that the responsibility for determining whether a capital sentence is to be imposed rests elsewhere. Id. In Caldwell, the assistant district attorney responded in his closing arguments to defense counsel's plea for mercy by stating:
107
Now, they would have you believe that you're going to kill this man and they know--they know that your decision is not the final decision.... Your job is reviewable.... They said 'Thou shalt not kill.' If that applies to him it applies to you, insinuating that your decision is the final decision and that they're going to take Bobby Caldwell out in the front of this courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the [state] Supreme Court.
108
Id. at 325-26, 105 S.Ct. at 2637-38.
109
Notably, the trial court agreed with the prosecutor's statements, stating "I think it is proper that the jury realizes that it is reviewable automatically as the death penalty commands." Id. at 325, 105 S.Ct. at 2638.
110
The Supreme Court vacated the death sentence, explaining that under the Eighth Amendment, it had long recognized that "the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.' " Id. at 329, 105 S.Ct. at 2639. The Court concluded that false information about the "awesome responsibility" to determine the appropriateness of death and suggestion that the sentencing jury may shift its responsibility to an appellate court might produce "substantial unreliability as well as bias in favor of death sentences." Id. at 330, 105 S.Ct. at 2640.
111
If we assume that the holding in Caldwell was violated here, which as we shall later demonstrate it was not, Zettlemoyer nevertheless cannot be given relief because the Supreme Court has held in Sawyer v. Smith, 110 S.Ct. at 2833, that Caldwell is not applicable in cases in which the conviction became final before the Court announced the decision in Caldwell. The Court in Sawyer v. Smith held that Caldwell announced a "new rule" subject in its application to the limitations on retroactivity of Teague and it rejected the petitioner's argument that the case fell within the second Teague exception for a rule "fundamental to the criminal proceeding." Id. 110 S.Ct. at 2827, 2833.
112
The Court initially determined that the Caldwell rule was not " 'dictated by precedent existing at the time defendant's conviction became final,' " because its earlier precedent determining the propriety of a prosecutor's comments relied on a due process clause rather than Eighth Amendment analysis. Id. (discussing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). Additionally, finding that the Caldwell decision relied on Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Lockett v. Ohio, 438 U.S. at 586, 98 S.Ct. at 2954 (plurality), Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality), and Woodson v. North Carolina, 428 U.S. at 280, 96 S.Ct. at 2978, only for "the general proposition that capital sentencing must have guarantees of reliability, and must be carried out by jurors who would view all of the relevant characteristics of the crime and the criminal, and take their task as a serious one," the Court concluded that this level of generality did not suffice to show that Caldwell was an old rule rather than a new rule limited by Teague. Sawyer, 110 S.Ct. at 2828.
113
The Sawyer Court also held that the rule did not fall within Teague's second exception for new "watershed rules of criminal procedure" necessary to the fundamental fairness of the criminal proceeding. Id. 110 S.Ct. at 2833. The Court noted that Teague required that such a rule "must not only improve accuracy, but also 'alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Id. 110 S.Ct. at 2831. The Court noted that, because all Eighth Amendment jurisprudence concerning capital sentencing is directed at enhancing the reliability and accuracy of the proceeding, considering only fairness and accuracy would transform the second exception into a limitless rule. Id. 110 S.Ct. at 2832. The Court determined that the Caldwell rule was not an " 'absolute prerequisite to fundamental fairness' " because its enhancement of the accuracy of capital sentencing was in addition to the due process protection against fundamental unfairness set forth in Donnelly. Id. The Court, therefore, dismissed the petitioner's habeas corpus claim because he sought the benefit of a new rule that did not fall within either of Teague's exceptions. Id. 110 S.Ct. at 2833.
114
Zettlemoyer's conviction became final at the latest on August 23, 1983, when rehearing was denied by the United States Supreme Court on his direct appeal, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452, two years before the Court announced its decision in Caldwell.18 Thus, he cannot rely on Caldwell to challenge his capital sentence in this federal habeas corpus action. Sawyer, 110 S.Ct. at 2833. Furthermore, he cannot avoid Teague on the basis that here, unlike in Caldwell, it was the trial court, rather than the prosecutor, which made the comments said to diminish the jury's sense of responsibility for, prior to Caldwell, precedent would not have dictated a result in conformity with Caldwell regardless of whether the court or the prosecutor made the remark. See Dugger v. Adams, 489 U.S. 401, 410, 109 S.Ct. 1211, 1217, 103 L.Ed.2d 435 (1989).
115
In any event, even if Teague and Sawyer did not bar the application of Caldwell in this case, we would find that there was no Caldwell violation. Caldwell was concerned with the shifting of the responsibility in the mind of the jury from it to the appellate court. Here there was simply no such shifting. All the trial court did was to explain the law and point out that if the jury made certain findings, then "a certain penalty must follow." But that was the exact opposite of reducing the jury's sense of responsibility, because the jury knew that depending upon its conclusion regarding aggravating and mitigating circumstances, Zettlemoyer would or would not receive the death sentence. Thus, it returned its verdict with knowledge of the consequences and had no reason to believe that it had not made the ultimate decision regarding the penalty.
116
There was no suggestion to the jury that the Supreme Court of Pennsylvania or anyone else would have the last word in the case. Furthermore, at the outset of the sentencing phase, the court told the jury that at the end of that phase "you will decide whether the defendant is to be sentenced to death or life imprisonment. Whether you sentence the defendant to death or life imprisonment will depend upon what, if any, aggravating or mitigating circumstances you find are present...." Thus, there is no way that the court's instructions could have diminished the jury's sense of responsibility.
3. Mills v. Maryland
117
We turn next to Zettlemoyer's contention that the trial court's instruction erroneously suggested that the jury's finding on mitigating circumstances must be unanimous and accordingly violated the rule in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).19 In particular, Zettlemoyer contends that the trial court's instruction and the verdict form may have erroneously led the jury to believe that it had to agree unanimously on the existence of a particular mitigating circumstance before considering that mitigating circumstance in its weighing process.
118
In Mills, the Supreme Court vacated the petitioner's sentence of death because it found a substantial probability that reasonable jurors, when receiving the judge's instructions and attempting to complete the verdict form as instructed, may have thought they were precluded from considering any mitigating evidence unless all twelve jurors agreed on the existence of a particular mitigating circumstance. Id. 108 S.Ct. at 1870. Under Maryland's sentencing scheme, if the sentencer finds that any mitigating circumstances had been proved to exist, it then proceeds to decide whether those mitigating circumstances outweigh the aggravating circumstances. Id. 108 S.Ct. at 1865-66.
119
The verdict form in Mills included three separate sections. The preamble to section I stated:
120
Based upon the evidence we unanimously find that each of the following aggravating circumstances which is marked 'yes' has been proven BEYOND A REASONABLE DOUBT and each aggravating circumstance which is marked 'no' has not been proven BEYOND A REASONABLE DOUBT.
121
Id. 108 S.Ct. at 1870 (Appendix to the Opinion of the Court).
122
Section I then set forth ten aggravating circumstances with boxes for the jury to select "yes" or "no." Id. 108 S.Ct. at 1871. Section II of the form stated, in part:
123
Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked 'yes' has been proven to exist by A PREPONDERANCE OF THE EVIDENCE and each mitigating circumstance which is marked 'no' has not been proven by A PREPONDERANCE OF THE EVIDENCE.
124
Id.
125
Section II listed eight mitigating circumstances with boxes marked "yes" or "no." Id. 108 S.Ct. at 1871-72. Section III stated:
126
Based on the evidence we unanimously find that it has been proven by A PREPONDERANCE OF THE EVIDENCE that the mitigating circumstances marked 'yes' in Section II outweigh the aggravating circumstances marked 'yes' in Section I.
127
Id. 108 S.Ct. at 1872 (emphasis added).
128
This statement was likewise followed by boxes for the jury to select "yes" or "no." Id.
129
The Court found that this form and the trial court's instruction suggested that jurors could only consider those mitigating circumstances which they unanimously agreed existed. Id. 108 S.Ct. at 1870. The Court concluded that failure to give consideration to a mitigating circumstance that fewer than all jurors found to exist violated the principle that the sentencer not be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. 108 S.Ct. at 1865 (emphasis in original). See also McKoy v. North Carolina, --- U.S. ----, 110 S.Ct. 1227, 1234, 108 L.Ed.2d 369 (1990) (unanimity requirement on existence of mitigating factors impermissibly limits juror's consideration of mitigating evidence and is, therefore, unconstitutional).
130
Last term, the Supreme Court clarified the legal standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant evidence. The proper standard is "whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, --- U.S. ----, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Court explained that a capital sentencing proceeding is not inconsistent with the Eighth Amendment if the "reasonable likelihood" standard is met because this standard balances the strong policy in favor of accurate determination of the appropriate sentence in a capital case with the "equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation." Id. In Boyde, the Court held that the trial court's instruction that the jury "consider ... [a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime" and its definition of "extenuate" as "to lessen the seriousness of a crime as by giving an excuse" did not prevent the jury from considering evidence about the defendant's background and character as mitigating circumstances. Id. 110 S.Ct. at 1199.
131
In this case, the trial court stated in its instructions during the sentencing phase:
132
The verdict, of course, must be unanimous. Again, if you find unanimously, beyond a reasonable doubt, the aggravating circumstance that I have mentioned, the only one that's applicable, that the victim was a prosecution witness to a felony and it was committed and he was murdered so that he would not testify, that is an aggravating circumstance. If you find that aggravating circumstance and find no mitigating circumstances or if you find that the aggravating circumstance which I mentioned to you outweighs any mitigating circumstance you find, your verdict must be the death penalty. If, on the other hand, you find that the Commonwealth has not proven an aggravating circumstance beyond a reasonable doubt or if they have, that the mitigating circumstances outweight (sic) the aggravating circumstances, then you must bring in a verdict of life imprisonment.
133
....
134
... Under the law, as I said, you are obligated by your oath of office to fix the penalty at death if you unanimously agree and find beyond a reasonable doubt that there is an aggravating circumstances (sic) and either no mitigating circumstance or that the aggravating circumstance outweighs any mitigating circumstances.
135
App. at 204, 207.
136
Additionally, the jury completed the following verdict form:
137
1. We the jury unanimously sentence the defendant to: [X] death __ life imprisonment.
2. (To be used in the sentence if death)
We the jury have found unanimously:
138
__ at least one aggravating circumstance and no mitigating circumstance. The aggravating circumstance is _______.
139
[X] the aggravating circumstance outweighs [the]20 mitigating circumstances. The aggravating circumstance is [the murdering of a prosecution witness to prevent testimony in a felony case.]21
140
Id. at 216.
141
The challenged instructions were not defective. Neither the court nor the verdict sheet stated that the jury must unanimously find the existence of particular mitigating circumstances or that the jury could weigh only those mitigating circumstances which it found unanimously. Thus, Mills is clearly distinguishable. Additionally, the trial court correctly instructed the jury that its verdict must be unanimous. This instruction in no way precluded the jury's consideration of relevant evidence in arriving at that verdict.
142
The verdict form here did not limit the mitigating circumstances the jury could consider. Notably, the language on the verdict form was that:
143
We the jury have found unanimously ... at least one aggravating circumstances and no mitigating circumstances. The aggravating circumstance is....
144
This language requires that the jury's conclusion on the particular aggravating circumstance must be unanimous. The absence of a similar instruction for mitigating circumstances indicates that unanimity is not required. In fact, the lack of specificity in the form's reference to mitigating circumstances cuts against Zettlemoyer's position. Though the jury was obliged to specify the aggravating circumstance it found, it had no such duty with respect to mitigating circumstances, thus suggesting that consideration of mitigating circumstances was broad and unrestricted.
145
The court's instruction that "if you unanimously agree and find beyond a reasonable doubt that there is an aggravating circumstances (sic) and either no mitigating circumstance or that the aggravating circumstance outweighs any mitigating circumstances" indicates only that the jury's ultimate conclusion must be unanimous, not that each interim step in its deliberations be unanimous. That the jury must unanimously agree that the aggravating must outweigh the mitigating is not the same as unanimously agreeing that a mitigating factor exists. There is no support for Zettlemoyer's suggestion that a reasonable jury might construe the foregoing to mean that it must unanimously find mitigating circumstances. Accordingly, Zettlemoyer has failed to show that there is a reasonable likelihood that the jury applied these instructions in a way that precluded its consideration of any relevant mitigating evidence.224. Life Sentence Instruction
146
We next turn to Zettlemoyer's contention that the trial court failed to instruct the jury that, in the event it could not unanimously agree that the death penalty should be imposed, the court would impose a life sentence, as required by 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1). At the outset of our discussion on this point we note that we are perplexed by the contention, as the court expressly told the jury that it would decide whether the penalty would be "death or life imprisonment." App. at 200. Therefore the argument at most goes to the form not the substance of the instructions, as the jury could not have possibly been misled. But we will nevertheless treat the matter as though there had been a section 9711(c)(1) violation.
147
At least one state trial court has interpreted this section to require an instruction on the matter from the trial court. See Commonwealth v. Gabler, Crim.Div. CC 8104539 (C.C.P.Allegheny Oct.1988). Nonetheless, "a state court's misapplication of its own law generally does not raise a constitutional claim cognizable in a federal habeas proceeding." Grace v. Butterworth, 635 F.2d 1, 4 (1st Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981) (citing Beck v. Washington, 369 U.S. 541, 554, 82 S.Ct. 955, 963, 8 L.Ed.2d 98 (1969)). "As stated by the Supreme Court, '[f]ederal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.' " Smith v. Zimmerman, 768 F.2d 69, 71 (3d Cir.1985) (citations omitted).
148
This alleged omission did not raise an error of constitutional dimension. It did not give the jury unbridled discretion nor did it limit the jury's consideration of all mitigating evidence in determining whether death was the appropriate sentence. Blystone v. Pennsylvania, 110 S.Ct. at 1083 (individualized sentencing requirement met by allowing jury to consider all relevant mitigating evidence); Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (death penalty may not be imposed under procedures that create substantial risk it will be inflicted in arbitrary and capricious manner). Inasmuch as the alleged omission raises only issues of state law, we have no authority to grant relief by reason of it.23
E. Exhaustion of State Remedies
149
Although neither party raises the issue of exhaustion of state remedies, our review of the available record reveals that Zettlemoyer may not have pursued certain constitutional claims through the state supreme court level and may have raised slightly different constitutional claims in his state court proceedings. However, inasmuch as exhaustion is a rule of comity and not a jurisdictional requirement, we may decide the merits of an unexhausted claim. Thus, in Granberry v. Greer, the Court indicated that: "Although there is a strong presumption in favor of requiring the prisoner to pursue his available remedies, his failure to do so is not an absolute bar to appellate consideration of his claims." 481 U.S. 129, 131, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987). Because the state did not raise lack of exhaustion in the district court,
150
[t]he State's omission in such a case makes it appropriate for the court of appeals to take a fresh look at the issue. The court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim.
151
Id. at 134, 107 S.Ct. at 1675.
152
The Court set forth the standards for a court of appeals to determine whether strict compliance with the exhaustion doctrine was desirable:
153
If, for example, the case presents an issue on which an unresolved question of fact or of state law might have an important bearing, both comity and judicial efficiency make it appropriate for the court to insist on complete exhaustion to make sure that it may ultimately review the issue on a fully informed basis. On the other hand, if it is perfectly clear that the applicant does not raise even a colorable federal claim, the interests of the petitioner, the warden, the state attorney general, the state courts, and the federal courts will all be well served even if the State fails to raise the exhaustion defense, the district court denies the habeas petition, and the court of appeals affirms the judgment of the district court forthwith.
154
Id. at 134-35, 107 S.Ct. at 1675.
155
In light of our conclusions that the Pennsylvania death penalty statute is not unconstitutional as applied to Zettlemoyer and that his claims of ineffective assistance of counsel and error by the trial court are not meritorious, we conclude that the interests of comity and federalism have been better served by our having addressed the merits of his claims rather than requiring a series of additional state and district court proceedings before doing so. Zettlemoyer's federal claims do not raise questions of unresolved Pennsylvania law; therefore, principles of comity are not compelling here. Furthermore, the Pennsylvania courts have already considered this case at length. Finally, we observe that the proceedings involving Zettlemoyer are a decade old and we recoil from the idea of protracting them for no good reason.
III. CONCLUSION
156
In sum, we find that Zettlemoyer's challenge to the Pennsylvania Death Penalty statute as applied to him is without merit. Likewise, his claims of ineffective assistance of counsel and error by the trial court do not entitle him to relief by writ of habeas corpus. Accordingly, the order of the district court will be affirmed.
157
SLOVITER, Circuit Judge, dissenting.
158
The underlying facts in every death penalty case present a sordid story, and this case is no exception. Zettlemoyer's murder of DeVesco, uncontested at trial and before us, was base. Although Zettlemoyer's habeas counsel makes a valiant effort to challenge the conviction on the ground of ineffective assistance of counsel, I agree with the majority that in the end this argument is not persuasive.
159
Zettlemoyer's trial counsel, a public defender appointed to defend him, apparently conceived the strategy of relying upon one expert witness, Dr. Schneider, to substantiate a defense of diminished capacity. Dr. Schneider was not competent to testify to support such a defense which, under Pennsylvania law, applies to a defendant who does "not possess sufficient mental capacity to form the specific intent required for a conviction of murder of the first degree." Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914, 916 (1976). Instead of presenting a witness who could testify to any possible "mental disorders affecting the cognitive functions necessary to formulate a specific intent," Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344, 1347 (1982), the defense relied on Dr. Schneider who could only testify to Zettlemoyer's personality disorder. Zettlemoyer does not challenge the correctness of the trial court's ruling that such evidence, going to the "irresistible impulse" defense which Pennsylvania does not accept, was inadmissible. I agree with the majority that in the absence of any showing of the availability of evidence to support the diminished capacity defense and in the face of overwhelming evidence that Zettlemoyer had the specific intent to kill, there is simply no basis for the claim of ineffective assistance of counsel at the guilt phase.
160
I part company with the majority, however, over the treatment of the claim of ineffective assistance of counsel at the penalty phase. Zettlemoyer argues that the paltry case presented on his behalf was the product of ineffective assistance of counsel. The majority, without the benefit of any evidence presented at a hearing, either state or federal, has decided that counsel acted reasonably in the sentencing phase. Although, as I suggest hereafter, I believe it is probable that I would reach a contrary conclusion, I am reluctant to draw any conclusion without the usual hearing. Therefore, I believe that the principal question before us is whether the district court had a duty to hold an evidentiary hearing so that this issue could be explored.
161
Counsel for the state cites no capital case in which a defendant who claims ineffective assistance of counsel at the sentencing stage has not been afforded at least one evidentiary hearing on that claim, either as part of the state post-conviction proceeding or in federal court on a habeas petition. Surprisingly, the majority overlooks the singularity of its decision to bypass the usual process by which a trial judge decides whether counsel's performance fell "within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), after an evidentiary hearing at which trial counsel explains the strategy of his or her trial conduct. Instead, without the benefit of such a post hoc explanation the majority undertakes to make the requisite analysis itself, and reaches what for me are two startling conclusions: first, that Zettlemoyer's attack on trial counsel for making a "perfunctory" case for his life "is completely unfounded," Maj. op. at 300, and second, that "it would have been improper" to have had an evidentiary hearing on the claim of counsel's ineffectiveness at the sentencing stage. Maj. op. at 300. I proceed to explore both conclusions, which are central to the disposition of this appeal.
162
The Supreme Court established the general standards to be used by a federal habeas court in deciding whether to grant an evidentiary hearing in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Of particular relevance to this case, a hearing is required if "for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing." Id. at 313, 83 S.Ct. at 757.
163
In United States v. Dawson, 857 F.2d 923 (3d Cir.1988), we outlined the more particularized standard to be used when considering whether a hearing was required on a claim of ineffective assistance of counsel as follows:
164
First, we must determine whether the district court considered as true all appellant's nonfrivolous factual claims. This step requires that we review whether the district court properly found certain allegations frivolous. Second, we must determine whether, on the existing record, those claims that are nonfrivolous conclusively fail to show ineffective assistance of counsel.... If a nonfrivolous claim does not conclusively fail either prong of the Strickland test, then a hearing must be held.
165
Id. at 927-28 (emphasis in original).
166
The district court dealt with this particular claim of Zettlemoyer's in a single paragraph. Although the court rejected it as without merit, it did not state that it regarded the claim as frivolous. Because the majority does not remand for an evidentiary hearing, it apparently views Zettlemoyer's allegations as frivolous or deems that they failed to show ineffective assistance of counsel at the penalty phase. I believe that either conclusion is unsupported by the record before us.
167
The externalities give some indication of the extent of the case made for Zettlemoyer's life. On April 24, 1981, at 11:36 a.m., the jury found Zettlemoyer guilty of first-degree murder. App. at 215. The case proceeded immediately to the penalty phase. There was a sidebar conference at which counsel and the court discussed stipulations as to aggravating and mitigating circumstances, defense counsel presented one witness, Zettlemoyer's father, whose direct testimony takes eight transcript pages, there was cross-examination occupying three pages, the case recessed so that the jury could lunch, counsel presented final arguments to the jury, the court gave the jury its charge, the jury deliberated, and it returned with a death sentence at 5:31 p.m. on the same day.
168
Of course, the fact that Zettlemoyer's fate was decided in the span of six hours is not alone evidence of "perfunctoriness." We must instead examine the substance of the case presented by counsel to the jury in an attempt to convince them that there were mitigating circumstances to outweigh the one aggravating circumstance present, that DeVesco was to have been a witness against Zettlemoyer on a robbery charge.
169
Zettlemoyer argues that Dr. Schneider should have been recalled to testify at the penalty hearing. The majority holds that the failure to do so was not ineffective assistance because Dr. Schneider was the last witness at the trial phase, and the court instructed the jury to consider in the penalty phase all of the evidence from both sides that it heard during the trial in chief. However, the majority overlooks that the focus of Dr. Schneider's testimony at trial was to establish a diminished capacity defense, not to show mitigating circumstances.
170
Dr. Schneider testified that he interviewed Zettlemoyer on three separate occasions for a total of eight hours and conducted seven different tests on him, and that based on these tests, he concluded that Zettlemoyer showed normal intelligence overall but "deficits" in common sense and practical judgment, particularly as they relate to interpersonal relationships. Dr. Schneider testified that Zettlemoyer showed no signs of organic damage to his brain or central nervous system and that he is not psychotic, meaning he does not grossly distort reality, but that "under stress this man will lose control and lose judgment." App. at 133. Dr. Schneider continued, saying that Zettlemoyer "has a limited ability to tolerate adversity, that too much emotional stimulation may precipitate a loss in judgment, perhaps even to a psychotic proportion." App. at 134-35. He described Zettlemoyer as "self centered" and "autistic" and "an individual who has been protected and indulged to the point where he has not developed adequate skills to cope or meet with the normal pressures, demands and responsibilities of everyday living." App. at 135. The overall "diagnostic impression" was of "a schizoid personality with paranoid features." App. at 137. Dr. Schneider explained that schizoid meant a personality that was unusually detached, unemotional, and reclusive, with little social involvement.
171
Dr. Schneider described Zettlemoyer's inability to complete anything successfully as a "pressure cooker syndrome," and that "[i]f you don't have a release valve it will blow and that's where I believe that the emotional disturbance, in addition to the personality disorder, may have resulted in the behavior." App. at 142. Again, "[t]here is sufficient evidence to suggest that he has not met with success in any field of endeavor. If you take that kind of foundation and build upon that a number of stressful situations, a number of powerful factors over which he had no control, then you are going to get a result which can be catastrophic." App. at 144. Dr. Schneider stated that the stressful situations pertinent to Zettlemoyer immediately before October 13, 1980 were the publicity over "the robbery," the embarrassment he brought upon his family, particularly his mother, his debts, and rejection by his girlfriend/fiance. App. at 145.
172
Finally, defense counsel asked Dr. Schneider whether Zettlemoyer was capable of fully forming the specific intent which is required for a willful, deliberate and premeditated act, the state objected, and, after a sidebar conference, the court sustained the state's objection. Thus, Dr. Schneider's testimony on Zettlemoyer's behalf in the guilt phase ended with a discredited whimper, rather than a bang, particularly since it was followed by grueling and effective cross-examination designed to show that Zettlemoyer knew the nature and quality of his act.
173
At sentencing, the state had stipulated to two statutory mitigating factors, the absence of a prior criminal record and Zettlemoyer's age (25). Thus it appears that the entire sentencing phase strategy of defense counsel was to try to establish the additional mitigating factor that "[t]he defendant was under the influence of extreme mental or emotional disturbance." 42 Pa.Cons.Stat.Ann. Sec. 9711(e)(2) (Purdon 1982).
174
In denying an evidentiary hearing on Zettlemoyer's claim of ineffective assistance of counsel at sentencing, the district court held that it was unnecessary to recall Dr. Schneider because "the petitioner's father testified during the sentencing phase about petitioner's mental and emotional health, thus reinforcing in the minds of the jury petitioner's asserted diminished capacity defense." Opinion of May 31, 1988, slip op. at 30 (emphasis added). It is thus evident that the district court failed to recognize that the diminished capacity defense which Dr. Schneider had sought unsuccessfully to establish during the guilt phase, and which itself can be the basis of a mitigating circumstance, see 42 Pa.Cons.Stat.Ann. Sec. 9711(e)(3), is distinct from the mitigating circumstance of "extreme mental or emotional disturbance." Id. Sec. 9711(e)(2). Zettlemoyer makes this distinction in paragraphs 139 through 142 of his petition for habeas corpus, quoted in Maj. op. at 302 n. 14.
175
Although Dr. Schneider's testimony may have contained the evidentiary predicate for an "emotional disturbance" mitigating circumstance, the jury did not hear Dr. Schneider's testimony during the guilt phase from the perspective of whether Zettlemoyer was troubled enough so that his life should be spared, and thus I find it difficult based on what is before us to characterize the defense counsel's decision not to recall Dr. Schneider as a reasonable one.
176
The majority relies on Clozza v. Murray, 913 F.2d 1092 (4th Cir.1990), to support its conclusion that counsel was not ineffective in failing to recall Dr. Schneider. Clozza is inapposite. There the court rejected the claim of ineffective assistance of counsel for failing to recall a psychiatrist who had testified at the guilt phase because the state court had made findings and reached the conclusion that counsel's tactic was reasonable trial strategy. That decision was made only after the state court held an evidentiary hearing on the ineffective assistance of counsel claim in a post-conviction habeas corpus proceeding. During that hearing, the doctor testified that his testimony at sentencing would not have added anything new, and it was revealed that the doctor's testimony had been based on the understanding that the defendant had been drunk at the time of the offense. Because Clozza had testified during the guilt phase that he was sober, the Court of Appeals discussed the strategic dilemma Clozza's counsel would have faced had the psychiatrist been recalled to testify. Id. at 1102.
177
In contrast, no such state court hearing was held in this case, and thus trial counsel has never been called upon to explain his enigmatic decision to rest on Dr. Schneider's testimony given during the guilt phase. I find it significant that in the majority's reiteration of its conclusion that it was reasonable for defense counsel not to recall Dr. Schneider, the majority never once suggests that, as in Clozza, Dr. Schneider's testimony at the sentencing phase could have been harmful to defendant. Recalling Dr. Schneider would have given the defense the opportunity to rehabilitate him in the eyes of the jury. The majority has not and cannot reasonably disagree that such a move would have enabled the defense to emphasize Zettlemoyer's extreme mental and emotional disturbance at the time of the crime. Thereafter, the jury would have proceeded to its deliberations focused on Dr. Schneider's testimony about this statutory mitigating circumstance rather than focused on his earlier testimony that the defendant was unable to form a specific intent to kill, which the jury had already found unpersuasive. I cannot discount the possibility that Dr. Schneider's recall might have tipped the scales in favor of a decision by the jury to spare Zettlemoyer's life.
178
Zettlemoyer also claims that trial counsel should have presented additional evidence at the penalty phase. As I noted previously, the only live testimony during the sentencing phase was that of Zettlemoyer's father, who, in his brief testimony, reiterated his wife's earlier testimony that Zettlemoyer had personality problems when he was a boy and had poor relations with the rest of the family members. He testified that he had one or two discussions with his son during the two weeks before the murder, that Keith Zettlemoyer discussed "all the problems that he was having and how he felt overwhelmed," App. at 184, and that he should have taken responsibility to get psychiatric or psychological help for his son. Zettlemoyer's father also mentioned that his son "has shown considerable remorse" over the crime, that "he's taken to religion to some extent which is something he never did before," id., and that he believed his son was suffering under extreme mental or emotional disturbance.
179
It is not apparent from the record why counsel would have relied solely on the testimony of Zettlemoyer's father. Zettlemoyer's father's testimony shows that he was only peripherally involved with his son and had "only mild" knowledge that his son's fiance had broken off with him, App. at 187, a patently traumatic event. He was obliged to admit that he was only aware of the problems in his son's personal life and his financial problems "[t]o some degree, not to the degree that my wife would have been aware of them but I know he had them." App. at 186. Under these circumstances, it is not difficult to see why the jury would not be overly impressed with the only testimony put before them on the critical issue of life or death sentencing.
180
I cannot understand why counsel would not have recalled Zettlemoyer's mother, since her testimony, like Dr. Schneider's, during the guilt phase was more inclined to the diminished capacity defense, whereas her penalty phase testimony could have emphasized the mitigating circumstance of "extreme mental or emotional disturbance." It is also not evident why counsel would not have called Zettlemoyer's friends, co-workers, or his former fiance to support the claim of overwhelming emotional disturbance. Certainly the absence of such supporting testimony could not have escaped the jury's notice.
181
Even more inexplicable is the complete failure of the defense to attempt to make any kind of case at sentencing to support the catch-all mitigating circumstance, which permits the defense to present and the jury to consider "[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense." 42 Pa.Cons.Stat.Ann. Sec. 9711(e)(8). If this was the result of a defense trial strategy, its logic is opaque and defense counsel should be obliged to provide elucidation.
182
The majority rules that no evidentiary hearing is called for on this issue first, because it believes the petition for habeas corpus does not allege failure to produce other witnesses as a basis for the claim of counsel's ineffectiveness and second, because petitioner has failed to point to specific significant mitigating evidence. The habeas petition does in fact complain of ineffectiveness at the sentencing phase on this basis.1 Although I agree that the failure to point to specific evidence that would have been available is troubling, I do not find it dispositive in this case. The habeas court is free to "direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition." Rule 7(a), Rules Governing Sec. 2254 Cases. Both the state court and the district court considered only the failure to recall Dr. Schneider. Had the district court considered paragraph 143 of the habeas petition and found it insufficiently specific, the rules provide ample opportunity for further elucidation.
183
I do not agree that our decision in Mayberry v. Petsock, 821 F.2d 179 (3d Cir.), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987), compels the denial of an evidentiary hearing at which counsel would be obliged to explain his underlying trial strategy.2 In Mayberry, where we affirmed the district court's denial of a hearing on Mayberry's habeas corpus petition at which he sought to compel discovery from the state on his contention that state officials had obstructed him from pursuing his appeal, we held, and reiterate here, that "bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing." Id. at 185.
184
In this case, we have substantially more. We have before us a plainly unenthusiastic case made on behalf of Zettlemoyer's life. I find it incomprehensible that there were no character witnesses who could testify to some redeeming virtue on behalf of a young man who had no criminal record. Is it possible that there was no clergyman, former employer, teacher, neighbor, or friend who was willing to come forward to show that despite his crime, Zettlemoyer's life is still worth preserving? If so, then counsel should explain that he searched for such testimony, and that it was unavailable, or that there was a reasonable basis not to present any such testimony.
185
Surely even the majority must acknowledge that as appellate judges we have the experience to spot a nonchalant, languid and lackluster defense at sentencing. The question before us is not whether this was the case, but why. Unlike the majority, I will not put an explanation into defense counsel's mouth which he has never given in either testimony or by affidavit filed at any time in any place.
186
Based on what is before us, this does not appear to be a case like Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), where the failure of the attorney to present any mitigating evidence at all at the penalty phase was the result of trial counsel's strategic decision that the witnesses, including the petitioner himself, necessary to present such evidence would ultimately be more damaging than helpful. Nor is this a case like Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987), where the court ruled that an evidentiary hearing by the habeas court was not warranted because it was clear from trial counsel's testimony at the state post-conviction proceedings that he had made a strategic choice not to put on certain witnesses at the penalty phase. If this is a case like Burger or Coleman where counsel made such strategic decisions, then the reasonableness of that conduct can be explored at a hearing, such as the one the district court held in Burger or the state court held in Coleman where the respective counsel testified.
187
On the other hand, it may be that an evidentiary hearing will show, as Zettlemoyer charges, that counsel was dispirited following the jury verdict of guilty to first-degree murder and, as a result, presented what appears to me to be a plainly anemic case. This may be a case such as Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985), where the court ruled, based on evidence presented at the habeas hearing, that trial counsel's strategy to concentrate on winning the guilt phase rather than prepare for the sentencing phase and his failure to seek out and prepare any witnesses who could present character evidence at the most critical stage of the proceeding warranted the grant of a writ of habeas corpus.
188
As the court stated in Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989),
189
[D]efense counsel must make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant's fate to the jury and to focus the attention of the jury on any mitigating factors. Mitigating factors brought out at trial might be emphasized, a coherent plea for mercy might be given, or new evidence in mitigation might be presented. But counsel may not treat the sentencing phase as nothing more than a mere postscript to the trial. While the Strickland threshold of professional competence is admittedly low, the defendant's life hangs in the balance at a capital sentencing hearing. Indeed, in some cases, this may be the stage of the proceedings where counsel can do his or her client the most good.
190
Perhaps the most analogous case to that before us is Wilson v. Butler, 813 F.2d 664, 671-72 (5th Cir.), modified on other grounds, 825 F.2d 879 (5th Cir.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1021 (1988). There, as here, the issue was the effectiveness of trial counsel at the sentencing stage of a state trial culminating in a death sentence. The court noted that while trial counsel may choose not to pursue certain avenues of investigation or strategies, those decisions must be informed ones. Because there was no evidentiary hearing held in the state court, the federal court held that the record was inadequate to establish whether trial counsel "made a considered strategic decision or whether this decision was reasonable." Id. at 672. Therefore, the court held that an evidentiary hearing by the habeas court was necessary.
191
Under Pennsylvania law, sustained by the United States Supreme Court, "the verdict must be a sentence of death ... if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances." 42 Pa.Cons.Stat.Ann. Sec. 9711(c). Given the single aggravating circumstance that the victim was a potential witness, and the two stipulated mitigating circumstances of age and the absence of any prior significant criminal record, there was a clear chance that a forceful, well conceived, and adequately supported case at the penalty phase directed to one or two additional mitigating circumstances would have led the jury to return with a life imprisonment sentence for Zettlemoyer. There has never been any explanation why such a defense was not provided, and thus my confidence in the outcome has been undermined.
192
I believe that our opinion in Dawson required the district court to hold a hearing because Zettlemoyer's claim of ineffectiveness "does not conclusively fail either prong of the Strickland test." 857 F.2d at 928 (emphasis in original). The majority expresses some displeasure because a decade has passed since this murder. The majority has already satisfactorily explained the reason for the passage of time. See Maj. op. at 303. It is, however, ironic that in all this time no court has sought an explanation for the pallid case made for Zettlemoyer's life. When the decision between life and death is as fine as a razor's edge, I cannot agree with the majority that neither society nor Zettlemoyer is entitled to an objective evaluation of that explanation.3
1
The facts of the case are set out at length in the Supreme Court of Pennsylvania opinion
2
PCHA was replaced by the Post Conviction Relief Act, P.L. 336, No. 47 (April 13, 1988)
3
Zettlemoyer raised additional issues which are not before us
4
In a footnote, the court stated that it believed that Zettlemoyer's allegations could be addressed by scrutinizing the state court record; therefore, it was not necessary to have a hearing for the receipt of proof establishing the allegations. Id. at 35 n. 7
5
We exercise plenary review to the extent that we review the rulings of the district court, because that court adjudicated the matter without an evidentiary hearing so that we are not reviewing findings of fact made by that court. See Monachelli v. Warden, SCI, Graterford, 884 F.2d 749, 750 (3d Cir.1989). Thus, we effectively place ourselves in the position of the district court and we therefore describe our scope of review in terms of review of state court proceedings
6
The Court noted that Blystone, after repeated warnings from the trial judge and contrary to the advice of trial counsel, decided not to present any proof of mitigating evidence during his sentencing proceedings. Blystone v. Pennsylvania, 110 S.Ct. at 1083 n. 4. The Court recognized, however, that the trial court specifically instructed the jury that it should consider any mitigating circumstances that Blystone had proved by a preponderance of the evidence, including consideration of any mitigating evidence presented by either side during the guilt phase of the trial. Id
7
Dr. Schneider testified that he administered the Wexler Adult Intelligence test to measure capacity for understanding, recalling, using, and integrating information, and the Bender-Gestalt test to measure intellectual impairment. App. at 129-30
8
Dr. Schneider administered the Minnesota Multiphasic Personality Inventory test, which is a "self-report" personality inventory. App. at 129
9
These tests consisted of the Rorschach ink blot test, the Thematic Apperception test, the Sentence Completion test, and the House Tree Person test. App. at 130
10
By contrast, at the time of Zettlemoyer's trial, Pennsylvania had clearly rejected the defense of "irresistible impulse" as either "a device to escape criminal responsibility for one's acts or to reduce the crime or its degree." Commonwealth v. Walzack, 468 Pa. at 220 n. 16, 360 A.2d at 919 n. 16 (quoting Commonwealth v. Ahearn, 421 Pa. 311, 320, 218 A.2d 561, 566 (1966)). A person acting under an "irresistible impulse" is capable of distinguishing between right and wrong and is fully aware of the nature of his or her act, yet is unable to refrain from acting
11
The jury specifically found that Zettlemoyer murdered DeVetsco to prevent his testimony, a finding which Zettlemoyer does not challenge on this appeal
12
Additionally, as discussed infra, at 300-303, on such bald assertions and conclusory allegations, Zettlemoyer is not entitled to a hearing on the question of whether such testimony was available. Mayberry v. Petsock, 821 F.2d at 185; Barry v. United States, 528 F.2d 1094, 1101-02 (7th Cir.) (insufficiently detailed affidavit that did not demonstrate that petitioners had actual proof of allegations made is "patently insufficient" to require hearing under section 2255), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976)
13
The unfair attack on Zettlemoyer's trial counsel did not stop in his brief on the appeal. At oral argument before us, appellate counsel contended that "[t]here were no prison counselors called as witnesses" and there should have been evidence about his "conduct as a prisoner." Transcript of Oral Argument at 18. In fact, Joseph T. Mullen, a prison counselor at the Dauphin County prison, was called as a witness by Zettlemoyer at the guilt phase of the trial and described Zettlemoyer in prison, indicating that he thought Zettlemoyer was making "a sincere effort of dealing with whatever he thought, whatever he thought he was going through." Transcript of Trial, Vol. II, at 614. Furthermore, Linda B. Hargrove, a counselor at Dauphin County Crisis Intervention, also testified. Id. at 625. She explained how Zettlemoyer's relationship with a woman had ended and described his depression from that and financial problems. Id. at 631. She also described his mental improvement and even the improvement in his appearance while in the prison. Id. at 632-33. This evidence, of course, was incorporated by reference into the sentencing phase. At oral argument before us, Zettlemoyer's counsel said that "the core of our argument" was predicated on "two mitigating factors," Zettlemoyer's "mental or emotional instability" and his conduct during his childhood and with his wife. Transcript at 13-16. There was testimony about these matters before the jury
14
The lack of basis for an evidentiary hearing on the competency of counsel at the sentencing hearing is demonstrated by the petition for a writ of habeas corpus which we set out in full insofar as germane to this point:
(8) Mr. Zettlemoyer's defense counsel was ineffective in the sentencing phase.
137
The Commonwealth stipulated to the existence of two statutory mitigating circumstances:
(a) Mr. Zettlemoyer had no significant history of prior criminal convictions;
(b) Mr. Zettlemoyer was 25 years of age. 42 Pa.C.S. Sec. 9711(e)(1) and (4).
138
Mr. Zettlemoyer's defense counsel then called only one witness, Richard Zettlemoyer, who was asked to present only limited testimony about his son's mental and emotional health, in part by adopting the prior testimony of Mr. Zettlemoyer's mother. (NT Sentencing 14-15; 18)
139
Dr. Schneider was available and competent to offer expert opinion testimony on mitigating circumstances of central importance to Mr. Zettlemoyer's case:
(a) Mr. Zettlemoyer was under the influence of extreme mental or emotional disturbance at the time of the crime; and
(b) Mr. Zettlemoyer had a substantially impaired capacity to appreciate the criminality of his conduct or conform his conduct to the law's requirements.
42
Pa.C.S. Sec. 9711(e)(2) and (3)
140
Additionally, the testimony by Dr. Schneider at the trial of the Mr. Zettlemoyer's guilt or innocence demonstrates that his opinion testimony at sentencing would have been admissible, relevant evidence of the Mr. Zettlemoyer's character, and of central importance to the jury's consideration of mitigation. 42 Pa.C.S. Sec. 9711(e)(8)
141
Mr. Zettlemoyer's defense counsel did not call Dr. Schneider or any other professionally qualified witness to testify respecting the mitigating circumstances of central importance to his case
142
Mr. Zettlemoyer's defense counsel was ineffective in not presenting testimony by Dr. Schneider or another professionally qualified witness respecting the pertinent mitigating circumstances
143
Mr. Zettlemoyer's defense counsel was ineffective in not presenting non-statutory evidence and argument, in support of mitigation, that the imposition of the death penalty in this case (a) would be cruel and inconsistent with the developed standards of civilized life; (b) would serve no demonstrable deterrent purpose; or (c) would be an inappropriate penalty for any other reasons
144
Mr. Zettlemoyer's defense counsel was ineffective in not asking the jury to exercise the discretion they are permitted by the United States constitution to grant mercy
App. at 32-33.
It will be noted that Zettlemoyer set forth no facts requiring a hearing in the foregoing pleading.
15
The situation here should be compared to that in Burger v. Kemp, 483 U.S. 776, 793, 107 S.Ct. 3114, 3125, 97 L.Ed.2d 638 (1987). There, though the petitioner did not obtain relief, at least he presented specific factual evidence in affidavit form to support his claim of ineffective assistance of counsel
16
While the dissent suggests that recalling Dr. Schneider would have given the counsel a chance to rehabilitate him, he did not need to be rehabilitated, as his evidence was not shown to be false or misleading. Indeed, in his summation to the jury at the guilt phase, the district attorney told the jury that "[w]e wholeheartedly agree with everything the psychologist said, but the psychologist can give no indication, cannot say in any way, shape or form that Keith could not form the specific intent to kill, no testimony that he could not form a specific intent to kill."
17
In Zettlemoyer's brief, he does not point to any person, either by name or generically, who should have been produced at the sentencing hearing and was not, except for Dr. Schneider
18
This may be stretching the date a bit, as his appeal may have become final on May 31, 1983, when his petition for certiorari was denied. See Penry v. Lynaugh, 109 S.Ct. at 2944
19
We are focusing on the merits of this issue, as we are aware of no Supreme Court case after Teague which made a Sawyer-type ruling in a Mills situation in a habeas case where the underlying conviction was final before Mills was decided. Mills itself was before the Supreme Court on certiorari from the Maryland Court of Appeals which exercised jurisdiction on a direct appeal from the conviction
20
The form used the word "any" at this point. The jury crossed out "any" and substituted "the"
21
The jury inserted the two X's and wrote the words "the murdering of a prosecution witness to prevent testimony in a felony case."
22
We are mindful that since Zettlemoyer's trial, the Criminal Procedure Rules Committee of the Pennsylvania Supreme Court has adopted a uniform verdict slip for capital sentencing cases, which provides, in part:
IF, AFTER SUFFICIENT DELIBERATION, YOU CANNOT UNANIMOUSLY REACH A SENTENCING VERDICT, DO NOT COMPLETE OR SIGN THIS SLIP, BUT RETURN IT TO THE JUDGE. THE JUDGE WILL DETERMINE IF FURTHER DELIBERATIONS ARE REQUIRED; IF THEY ARE NOT, THE JUDGE WILL SENTENCE THE DEFENDANT TO LIFE IMPRISONMENT.
See Pa.R.Crim.P. 358A (effective July 1, 1989).
However, as the Supreme Court noted in Mills, "we are hesitant to infer too much about the prior verdict form from the [court's] well-meant efforts to remove ambiguity from the State's capital sentencing scheme." Mills, 108 S.Ct. at 1869. Considering the verdict form and the court's instructions as a whole, we find that this amendment to the verdict form was not necessary to prevent a reasonable likelihood that the jury applied these instructions in a way that precluded their consideration of any relevant mitigating evidence.
23
The authority cited for the alleged error of state law is from a three-judge common pleas court sitting in banc with one judge dissenting. We cannot be certain how the Supreme Court of Pennsylvania would view the matter, both substantively and as a matter of retroactive application. Thus, there may well have been no error of state law. Of course, there is now a specific uniform verdict sheet dealing with the matter. See note 22 supra
1
The petition alleges:
143
Mr. Zettlemoyer's defense counsel was ineffective in not presenting non-statutory evidence and argument, in support of mitigation, that the imposition of the death penalty in this case (a) would be cruel and inconsistent with the developed standards of civilized life; (b) would serve no demonstrable deterrent purpose; or (c) would be an inappropriate penalty for any other reasons
App. at 39.
2
In any event, Mayberry, a non-capital case, cannot control our decision with respect to when an evidentiary hearing is appropriate for an attack on the sentencing phase of a capital case because "the qualitative difference of death from all other punishment requires a correspondingly greater degree of scrutiny of the capital sentence determination." California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983)
3
Zettlemoyer's claims based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), also raise disturbing issues. I do not agree with the majority that the trial court's charge does not present a Caldwell violation. The court charged, inter alia,
Ladies and gentlemen, you must now decide what sentence is to be imposed upon the defendant, whether it be death or life imprisonment. In a very proper sense, you are not really making that decision. You are not deciding whether he should be sentenced to death or life imprisonment. That was the law years ago and the Supreme Court of the United States declared such death penalties to be unconstitutional. I won't go into the reason. One of the theories was that it placed discretion on the jury. They could decide whether a particular individual could suffer death or life imprisonment. They have removed that burden from you. That is not what you are to decide. You are to decide whether there are certain aggravating circumstances or mitigating circumstances and depending upon how you find those circumstances, as I will explain to you, your decision follows. It must follow. If you find a certain way, a certain penalty must follow. That is the law. If, for example, as I will explain in a little more detail, you find unanimously beyond a reasonable doubt, that there is an aggravating circumstance and no mitigating circumstances or that the aggravating circumstance outweighs the mitigating circumstances, you must return a verdict of death. So the burden is not really yours.
App. at 200-01 (emphasis added).
Caldwell held that "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others bears an intolerable danger that the jury will in fact choose to minimize the importance of its role." 472 U.S. at 333, 105 S.Ct. at 2642. I believe the charge given in this case may have incorrectly led the jury to believe that their discretion, which is equivalent to their "burden," had been removed and therefore it violated the underlying principle of Caldwell. However, in light of the decisions in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990), limiting the retroactive application of new rules on habeas review, I agree with the majority that this Caldwell violation cannot be the basis for the grant of a writ of habeas corpus.
With respect to Zettlemoyer's claim based on Mills, I, unlike the majority, believe that the jury charge ("if ... you find unanimously beyond a reasonable doubt, that there is an aggravating circumstance and no mitigating circumstances ...", App. at 204) and the verdict slip ("We the jury have found unanimously: at least one aggravating circumstance and no mitigating circumstances ... the aggravating circumstance outweighs any mitigating circumstance," App. at 216) were ambiguous as to whether juror unanimity was required for each mitigating circumstance. Therefore, I believe that the instruction and verdict slip violated the holding in Mills and McKoy v. North Carolina, --- U.S. ----, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). As with the violation of the Caldwell principle, I believe it is likely that the Supreme Court would view Mills as announcing a new rule and thus this claim also is subject to the almost insurmountable barrier on retroactive application announced in Teague. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1547315/ | 809 A.2d 1216 (2002)
Christopher L. SMITH, Appellant,
v.
UNITED STATES, Appellee.
No. 01-CM-480.
District of Columbia Court of Appeals.
Submitted September 26, 2002.
Decided November 7, 2002.
*1218 Frederick J. Brynn, Washington, DC, was on the brief for appellant.
Dorann E. Banks, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Elizabeth Trosman and Denise Cheung, Assistant United States Attorneys, were on the brief, for appellee.
Before WAGNER, Chief Judge, and FARRELL and GLICKMAN, Associate Judges.
WAGNER, Chief Judge:
Appellant, Christopher Smith, was convicted following a bench trial of one count of possession of a controlled substance (cocaine) in violation of D.C.Code § 33-541(d) (1998 Repl.).[1] He argues for reversal on the grounds that the evidence was insufficient to convict him and that the trial court erred in declining to permit him to call his former co-defendant as a witness at trial, *1219 thereby denying him due process and the right to present a defense. We conclude that the evidence was sufficient to support the conviction; however, we reverse and remand for a new trial because the court erred in precluding appellant from calling his former co-defendant as a witness, and the error was not harmless beyond a reasonable doubt.
I.
Factual Background
A. Evidence Presented by the Government
Since appellant's initial argument concerns the sufficiency of the evidence to support the charge, we recount in some detail the facts presented at trial. According to the testimony of Investigator Curtis Prince of the Metropolitan Police Department's Fourth District, on December 28, 2000 at about 7:15 p.m., while in an observation post looking for drug activity, he saw several people standing in front of the Serengeti Club in the 6200 block of Georgia Avenue, Northwest. He recognized appellant, who was wearing "a hat, a tan jacket and ... some dark colored pants or some dark colored jeans." Appellant's jacket was a "parka-style jacket, a heavy coat," according to Investigator Prince. After about fifteen to twenty minutes, a man, later identified as Leroy McNeil, approached appellant and conversed briefly with him. Investigator Prince testified that McNeil walked up to appellant and handed him a small green object that appeared to be currency. Appellant took the money from McNeil and motioned for McNeil to step behind him. Appellant then "reached back towards the right side of his waist and he handed [McNeil] an object from behind." Investigator Prince testified that he could actually see the two "when their hands came together," but he could not identify exactly what the objects were or their specific color. The investigator testified that he saw McNeil "[take] the object and he apparently had dropped them to the ground because after he retrieved the objects, he bent down and picked up two separate objects from off the ground," and he "looked at them and. . . he walked away." Investigator Prince gave a look-out description for McNeil.
Investigator Jasper Jackson testified that within two minutes of receiving the description, he spotted an individual, later identified as McNeil, who matched it exactly, just one block from the location of the reported transaction. Investigator Jackson, who was a part of an arrest team, stopped McNeil. Investigator Prince had informed members of the arrest team by radio that it was likely that the individual would be carrying the two objects that he had received from appellant in his right hand. When the officers approached McNeil, he dropped two small objects that he had been carrying in his right hand. The police recovered the objects, which were clear, ziplock bags containing a "white rock substance," a portion of which field tested positive for cocaine.[2]
According to Investigator Prince's testimony, after he learned that the arrest team had stopped McNeil and that he possessed a quantity of cocaine, Investigator Prince broadcasted a look-out for appellant and had members of the arrest team come by the observation post to get him. Investigator Prince, along with members of the arrest team, tried to locate appellant at the Serengeti Club, but learned that he had left. While outside the club, they saw appellant walking across Georgia Avenue at Rittenhouse Street, and stopped him in the 900 block of Rittenhouse. *1220 Appellant's arrest occurred within 30 minutes and one block of the transaction between appellant and McNeil. In a search incident to appellant's arrest, the officers found $180.00 in cash inside appellant's sock.
B. Defense Evidence
Appellant's version differed. He testified that at around 6:30 p.m. on the evening of December 28, 2000, he was at the Serengeti Club in the 6200 block of Georgia Avenue. He said that he was wearing a "big white coat, a overcoat, and some blue jeans and some tennis shoes," and that one of his friends, "MTRs Mohammed," was wearing a big tan, parka coat like his, blue jeans and tennis shoes. Appellant described Mohammed as 5'8" or 5'9" tall, with hair and facial hair similar to his own that day. Appellant testified that he was outside of the Serengeti Club for about ten minutes waiting for a ride and that after it came, he went around the corner to the gas station. He testified that he went back to the club, but someone in front of the club told him that he could not go inside because the police were in there. Appellant testified that he then went up the street to purchase a beer from the newsstand and that his companion purchased it for him because his money was in his shoe. After purchasing the beer, he and his friend walked across the street, where he saw a female officer who he thought whispered something to Investigator Prince. According to appellant, Investigator Prince then came over to him, called him by name, and arrested him. Appellant testified that he did not know McNeil before he was arrested and that he did not give McNeil anything or receive any money from him that evening.
Appellant also called Investigator Prince who testified that another individual, later identified as MTRs Mohammed, was stopped that night and was also wearing a tan jacket. Investigator Prince explained that he believed that MTRs Mohammed had been acting "as a lookout" and that is why he stopped him. When asked to compare the appearance of appellant and MTRs Mohammed, Investigator Prince stated "Well, other than the fact that they both had on tan coats, they are two different people."
C. Appellant's Request to Call Former Co-Defendant as a Witness
At the conclusion of Investigator Prince's testimony, defense counsel stated that he intended to call as a witness appellant's former co-defendant, Leroy McNeil, who had just entered a plea in his case that day. The court remarked that defense counsel had not indicated that McNeil or Investigator Prince would be called by the defense when the court inquired just before the trial commenced.[3] Defense counsel explained that he had not expected McNeil to plead guilty and be available to testify. However, the court observed that McNeil had entered his plea before it inquired of defense counsel about witnesses. The court explained that it had allowed Investigator Prince to be called because he had already testified for the government. The prosecutor interjected that the government had no objection to appellant calling McNeil. Nevertheless, the trial court ruled that it would not permit appellant to call McNeil. The court explained that the testimony that McNeil was expected to give would contradict the factual proffer to which he agreed *1221 earlier and possibly constitute perjury. The court also mentioned that McNeil had been in the courtroom for most of the government's case. Defense counsel stated, "With that ruling, Your Honor, the defense would rest."
D. The Verdict
In finding appellant guilty of possession of cocaine, the trial court credited the testimony of Investigators Jackson and Prince. It explained further that
given the fact that they apprehended the suspect in close proximity, two minutes or less, in the time that Investigator Prince observed this hand-to-hand transaction, given the fact that Officer Prince advised Officer Jackson that the suspect should have two small items in his right hand, that two small items were recovered in the suspect's right hand, that is sufficient evidence to connect the two small items to the defendant, Mr. Smith.
II.
Discussion
A. Claim of Evidentiary Insufficiency
Appellant argues that the evidence was insufficient to convict him of possession of cocaine. He contends that absent mere speculation, the evidence was insufficient to prove beyond a reasonable doubt that he possessed the cocaine which was found in McNeil's possession. Specifically, he argues that the investigator did not see him give anything to McNeil and could not identify by shape, size or color, the objects that McNeil dropped while allegedly standing behind him.
Our standard of review for claims of evidentiary insufficiency requires that the evidence be viewed in the light most favorable to the government. See Owens v. United States, 688 A.2d 399, 402 (D.C.1996)(citing Blakeney v. United States, 653 A.2d 365, 369 n. 3 (D.C.1995)) (other citation omitted). In applying that standard, we recognize that it is the province of the trier of fact to determine the credibility of the witnesses and to make reasonable inferences from the evidence presented. See Gayden v. United States, 584 A.2d 578, 579 (D.C.1990), cert. denied, 502 U.S. 843, 112 S.Ct. 137, 116 L.Ed.2d 104 (1991) (quoting Frendak v. United States, 408 A.2d 364, 370 (D.C.1979)). "All reasonable inferences must be drawn in favor of the government, and deference must be given to the [trier of fact's] right to determine credibility and weigh evidence." Owens, supra, 688 A.2d at 402-03 (citation omitted). We continue to adhere to the proposition that "`the government is not required to negate every possible inference [of innocence] before an accused may be found guilty of an offense beyond a reasonable doubt.'" Id. at 407 (quoting In re T.J.W., 294 A.2d 174, 176 (D.C.1972)) (citing Banks v. United States, 287 A.2d 85, 87 (D.C.1972)). "`It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction.'" Zanders v. United States, 678 A.2d 556, 563 (D.C.1996) (citing Gayden, 584 A.2d at 580 (quoting Frendak, supra, 408 A.2d at 371)).
To prove the offense charged in this case, possession of a controlled substance, the government is required to prove beyond a reasonable doubt that the accused: (1) possessed a controlled substance (cocaine); and (2) that he did so knowingly and intentionally. See D.C.Code § 33-541(d); Criminal Jury Instructions for the District of Columbia, No. 4.28 (4th ed.1993). Proof of possession requires that the government establish that the accused had actual or constructive *1222 possession of the prohibited item. See Bernard v. United States, 575 A.2d 1191, 1195 (D.C.1990); see also Criminal Jury Instructions for the District of Columbia, No. 3.08 (4th ed.1993). In this case, the government's theory was that appellant had actual possession of the cocaine before giving it to McNeil, who dropped it as the police approached him. "Actual possession has been defined as the ability of a person to knowingly exercise direct physical custody or control over the property in question." United States v. Hubbard, 429 A.2d 1334, 1338 (D.C.), cert denied, 454 U.S. 857, 102 S.Ct. 308, 70 L.Ed.2d 153 (1981). The question is whether the evidence, viewed most favorably to the government, supports this theory.
"Proof of possession can be established by either direct or circumstantial evidence." Hubbard, supra, 429 A.2d at 1338 (citing United States v. Bethea, 143 U.S.App. D.C. 68, 71, 442 F.2d 790, 793 (1971)). In considering the sufficiency of the evidence, we make no distinction between direct and circumstantial evidence, and "[c]ircumstantial evidence is not intrinsically inferior to direct evidence." Bernard, supra, 575 A.2d at 1193 (citations omitted). Viewing the evidence in the light most favorable to the government, as we must, the evidence, both direct and circumstantial, was sufficient to support the charge. See Owens, supra, 688 A.2d at 402. There was evidence that Investigator Prince observed appellant and McNeil making an exchange of money for two small objects in a somewhat surreptitious manner. The investigator saw McNeil drop the objects, pick them up, examine them, and walk away with the items in his right hand, which he reported immediately to Investigator Jackson. Within two minutes, Investigator Jackson saw appellant, just one block away, walking in the same direction as reported, and McNeil was still holding two packets in his right hand, which he dropped as Investigator Jackson approached. The two objects turned out to be ziplock bags of crack cocaine. Crediting the testimony of the two investigators, the trial court inferred from this evidence that the two items which McNeil had were items which he obtained from appellant when they made the hand-to-hand exchange. Given what the investigators observed, the trier of fact could infer reasonably that the two items that McNeil had in his right hand just two minutes after receiving two small items from appellant were the same items, particularly given the surrounding evidence of the furtive exchange and the timeline. It is the factfinder's prerogative to determine credibility and to make reasonable inferences from the facts which have been proven. See Stack v. United States, 519 A.2d 147, 159-60 (D.C.1986) (citing Boyd v. United States, 473 A.2d 828, 832 (D.C.1984)) (other citations omitted). As appellant points out, each piece of evidence in isolation may not be sufficient to support a conviction. However, the evidence must be viewed as a whole, and the chain of facts and circumstances and the reasonable inferences to be drawn therefrom are sufficient to support the verdict.
B. Denial of Right to Call Defense Witness
Appellant argues for reversal on the grounds that the trial court violated his Fifth and Sixth Amendment rights by precluding him from calling as a witness his former co-defendant, McNeil. He contends that McNeil's testimony was central to his defense in that McNeil was in the best position to testify about whether he obtained the crack cocaine from him. He argues that the remaining evidence was weak on the issue, since Investigator Prince did not see the item that McNeil received from appellant and could not describe *1223 the objects McNeil dropped by shape, size or color, and the $180 recovered from him came from his sock.
The accused in a criminal trial has a right to call witnesses on his own behalf. Howard v. United States, 656 A.2d 1106, 1117 (D.C.1995) (citing Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)) (other citation omitted). This right, which is fundamental to our system of justice, is one protected by the due process clause of the Fifth Amendment and the Sixth Amendment right to present witnesses to establish a defense, which includes the right to compulsory process to secure their presence. Id. (citations omitted). This right is not absolute, and the exclusion of evidence is generally a matter of trial court discretion. Id. (citing Johns v. United States, 434 A.2d 463, 473 (D.C.1981)); King v. United States, 550 A.2d 348, 353 (D.C.1988) (citing Ronson v. Comm'r of Corr. of State of N.Y., 604 F.2d 176, 178 (2d. Cir.1979)). For example, the right, "must, for obvious reasons, give way to the proposed witness' privilege against self-incrimination." Id. (citing Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). The failure to assert the right timely may result in the loss of an opportunity to call a witness. See id. However, the waiver of this right is not to be inferred lightly. See id. at 355. (citation omitted). Thus, when exercising its discretion in determining whether to preclude a defense witness' testimony, the trial court must weigh such considerations "`against the constitutional rights of a defendant to present a defense.'" Howard, 656 A.2d at 1117 (quoting Clark v. United States, 639 A.2d 76, 81 (D.C.1993) (citing Bassil v. United States, 517 A.2d 714, 716 (D.C.1986)).
In reviewing a decision by the trial court denying a defendant the right to call a witness, the first inquiry is whether the error amounts to the violation of a constitutional right. Howard, supra, 656 A.2d at 1117-18. If a constitutional error has occurred, reversal is required "unless the government shows it was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)." Id. This means that
Where ... the trial court's evidentiary ruling wholly deprived the defendant of any opportunity to cross examine a witness or present evidence concerning bias or a central issue in the case, we may only affirm if we are convinced that the error was harmless beyond a reasonable doubt, applying the test set forth in Chapman, 386 U.S. [at 24, 87 S.Ct.824].
Howard, 656 A.2d at 1118 (quoting Clark, supra, 639 A.2d at 81). If a non-constitutional error has occurred, it is subject to "reversal under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)" which sets forth a less stringent test for harmless error than Chapman. Id.
In this case, the trial court precluded appellant from calling his former co-defendant, McNeil. McNeil entered a plea of guilty on the day of trial. During the plea proceeding, he agreed to the government's factual proffer, which included that he obtained the drugs from the appellant. When the trial court inquired whether there was any part of the statement with which he did not agree, McNeil responded, "No, I guess." The court pressed him further, asking, whether he "accept[ed] those facts as true facts in your case," and McNeil responded "yes." When defense counsel indicated during the presentation of appellant's case that he intended to call McNeil as a witness, the court responded that he had failed to identify McNeil as a defense witness earlier. Defense counsel *1224 reminded the court that the witness had just become available after the plea. The trial court ruled that McNeil would not be permitted to testify, with the explanation that
[d]efendant McNeil entered a guilty plea. He pled guilty to a specific factual proffer and that factual proffer would be the testimony that he's expected or the question[s] he's expected to be asked and the testimony he's expected to give would be completely contradictory to the factual proffer that he accepted as true in his case and would, in my view, possibly constitute perjured testimony and I'm not going to allow it. In addition, he sa[t] in this courtroom during most of the Government's case.
Thus, the three factors guiding the court's decision were: (1) the timing of the request; (2) the violation of the rule on witnesses; and (3) the prior statement of the proffered witness would be inconsistent with any exculpatory evidence that McNeil could provide. The question is whether these factors are sufficient to weigh against appellant's right to call his former co-defendant in his defense.
The first factor considered by the trial court, the timing of the request, is not one which would weigh against appellant in this case. McNeil did not become available as a witness until the day of trial. Until that time, he could have invoked his Fifth Amendment privilege against self-incrimination. See King, supra, 550 A.2d at 355. Moreover, the defense had not rested its case when McNeil was called, and the government did not object. In King, a case similar to this one, defendant King had rested and requested to reopen her case to call her co-defendant after he announced that he was willing to testify on her behalf, but the trial court precluded it. Id. Under these circumstances, we found that the timing of the request operated in King's favor in the analysis used to determine whether King was denied her right to present a crucial eye-witness. Id. Similarly, in this case, appellant made a request to call McNeil just a short time after he became available, and before he rested his case. Here also, the timing factor weighs in appellant's favor.
The second factor relied upon by the trial court was a violation of the rule on witnesses. Excluding witnesses from the courtroom during the presentation of testimony or precluding them from discussing their testimony with other witnesses prevents improper attempts to influence or tailor the testimony to that of the other witnesses. See Benn v. United States, 801 A.2d 132, 141 (D.C.2002); Brown v. United States, 388 A.2d 451, 456 (D.C.1978) (citations omitted). Since the purpose of this procedure can be served by less severe remedies, violation of the sequestration order alone will not justify exclusion of the witness. Id. (citing Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893)). "Generally, the violation of the court order must be so egregious that it `has somehow so discredited the witness as to render his testimony incredible as a matter of law.'" Id. (citing Taylor v. United States, 388 F.2d 786, 788 (9th Cir.1967)). In this jurisdiction, we have held that "a witness' testimony will be excluded only where the violation of the court order `was with the connivance or knowledge of the party and his counsel.'" Id. (quoting Jett v. Jett, 221 A.2d 925, 927 (D.C.1966)) (other citations omitted)(emphasis in the original). The record fails to show the type of egregious violation of the order which would warrant the exclusion of the witness. When the trial court inquired whether any witnesses were present and asked any witnesses to leave, it does not appear that McNeil knew at that time that he would be called. The record reflects no effort to ascertain whether appellant *1225 or his counsel advised, counseled or otherwise brought about a violation of the court's order. It is not clear how long or during which portions of the testimony McNeil was present in the courtroom. The court indicated only that the witness was there for most of the government's case. The government had no objection, and therefore, likely anticipated no prejudice. Given these circumstances, this factor alone was insufficient to overcome appellant's right to call a witness in his own defense.
The final factor relied upon by the trial court for its decision precluding the witness from testifying is the prior statement he gave which is inconsistent with appellant's innocence. This court has held that a defendant has a right to call a witness in his defense "notwithstanding his apparent vulnerability to cross-examination." King, supra, 550 A.2d at 355-56 (citing United States v. Parker, 136 U.S.App. D.C. 97, 100, 419 F.2d 679, 682 (1969)). A prior inconsistent statement is insufficient to preclude the introduction of a co-defendant's testimony when it becomes available. Id. The prior statement could be used to impeach McNeil if inconsistent with his testimony at trial. Although taken in open court, the statement was not under oath, as his testimony would have been. It was for the factfinder, in this case the court, to assess the witness' credibility based upon his testimony at trial and any impeaching evidence. The factfinder might have believed the trial testimony instead of the blanket assent to the overall proffer, rather than each detail. Instead, without hearing McNeil's testimony, the court determined that it would be incredible in light of his admission at the plea proceeding. This anticipatory assessment of credibility was not a sufficient basis for precluding appellant from calling in his defense the one person who knew for certain from whom he received the drugs.[4] Since all three factors relied upon by the trial court in its decision precluding the witness from testifying weigh in favor of allowing the testimony, we can only conclude that the trial court erred in precluding appellant from calling McNeil as a witness in his defense.
The government argues that the trial court's preclusion of McNeil's testimony, if error, did not affect appellant's substantial rights and was, therefore, harmless under the standard set forth in Kotteakos, supra, 328 U.S. at 757-65, 66 S.Ct. 1239 (error is harmless if we can "say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error"). However, where "the trial court's evidentiary ruling wholly deprive[s] the defendant of any opportunity ... to present evidence," harmlessness is determined applying the Chapman standard, i.e. harmless beyond a reasonable doubt. Clark, supra, 639 A.2d at 81 (citing Chapman, supra, 386 U.S. at 24, 87 S.Ct. 824). Here, the trial court's ruling deprived appellant of any opportunity to call the defense witness. Thus, the Chapman standard *1226 applies. Applying that standard, we conclude that the error was not harmless beyond a reasonable doubt. McNeil was an eyewitness-participant in a criminal offense for which appellant was convicted. He was the only person who could refute the police officer's testimony that appellant gave him drugs.
The government argues in support of its harmless error argument that it called two other witnesses to testify concerning appellant's misidentification defense and that the court, having heard from McNeil during his plea hearing, could evaluate his proposed testimony. First, only one witness called by the government testified that it was appellant, rather than someone else, who made an exchange with McNeil from whom drugs were recovered later. While identification was an issue at trial, also in issue was whether the drugs recovered from McNeil were the same objects that appellant gave to McNeil. Other evidence bearing on this issue was not substantial. Second, as previously stated, knowledge that a proposed witness has made a prior inconsistent statement is not grounds for excluding his testimony at trial. King, supra, 550 A.2d at 355-56 (citation omitted). The appellant had a right to call witnesses on his own behalf, here, the only witness who could provide exculpatory testimony on his behalf. Third, the evidence involved a central issue. Under these circumstances, we cannot say that the erroneous exclusion of McNeil as a witness was harmless beyond a reasonable doubt.
For the foregoing reasons, the judgment appealed from hereby is reversed, and the case is remanded to the trial court for a new trial.
Reversed and Remanded.
NOTES
[1] This section has been recodified as D.C Code § 48-904.01 (2001).
[2] Other evidence at trial established that the substance was in fact cocaine.
[3] Prior to the commencement of the bench trial, the court asked defense counsel whether there were any defense witnesses to which he responded, "Your Honor, at this point, possibly defendant Christopher Smith." The court then asked if there were any witnesses in the courtroom and stated that any witnesses should leave the courtroom.
[4] The trial court did not seek, and there was no clear proffer about what McNeil's testimony would be. In King, supra, there was no clear proffer of what the co-defendant would say if he had been permitted to be called as a witness for the defendant, and this court concluded that it was not a controlling consideration. 550 A.2d at 355. There, as in this case, the trial court did not seek a proffer, and no one referenced the lack of a proffer before the court denied the request to call the co-defendant. See id. Similarly, in this case, although it would be helpful to have such a proffer, we do not view it as controlling to a resolution of the issue. See id. Moreover, in foreclosing the testimony of the witness, the trial court assumed that it would be exculpatory. Therefore, appellant had little incentive to make a proffer. He preserved his claim of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547324/ | 73 F.2d 695 (1934)
UNITED STATES
v.
STEPHENS.
No. 7405.
Circuit Court of Appeals, Ninth Circuit.
November 13, 1934.
*696 J. A. Carver, U. S. Atty., E. H. Casterlin and Frank Griffin, Asst. U. S. Attys., and R. L. Slaughter, Atty., Department of Justice, all of Boise, Idaho, and Wilbur C. Pickett, Sp. Asst. to the Atty. Gen.
E. M. Wolfe, of Twin Falls, Idaho, for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
WILBUR, Circuit Judge.
This is an appeal from a judgment against the government upon a policy of war risk insurance. The assignments of error relate to rulings upon the admissibility of evidence, to the ruling of the court denying appellant's motion for directed verdict, and to the refusal of the court to give an instruction requested by the defendant. The first three assignments relate to the admissibility of the testimony of a physician as to whether or not in the opinion of the witness the veteran was totally and permanently disabled. In view of the importance of the question, we state the entire question, objection, and answer, and include the testimony of the physician, Dr. John R. Morgan, concerning the conditions which he found in his examination, which conditions were included in the hypothetical question by reference:
"I am a graduate of Northwestern University and have practiced over 25 years at Twin Falls in a general practice. I am acquainted with the plaintiff and have treated him. I commenced to treat him in the fall of 1928 when he came to me with trouble in breathing and a bad cough.
"Q. Did you make an examination of him? A. I examined him, his throat, head and nose and found an enormous amount of infection in the throat and nose, which could have predicated the cough. Following that time or around about that time I took Bennie into the room and had him stripped down to his waist and my observations there were of a man that was thin, poor, his spaces above and below the clavicular were very much thickened. His face was very red and synotic also his arms and feet. The respiratory center was rather abrupt. He was very round shouldered and stooped. His breathing was labored. I would have him take a long breath and it would produce a spasm of coughing. It was a hoarse cough and came in spasms very much like a whooping cough. He would almost get out of breath. It was a productive cough and he would raise a lot of sputum with that cough. I have seen, in my estimate in having him cough, he possibly *697 would raise a teacup of sputum at each cleaning. Do you want me to continue with my full physical examination of this man?
"At a later time I think I went farther. I would say I have been his family physician since that time. He has been in my office on and off ever since. I have treated him. I think in the fall of 1930 or 1931 I made a physical examination of the plaintiff.
"Q. What were your findings on that examination? A. The findings of his chest was much like he had when he first come, but in the abdomen particularly when he was coughing, Bennie would wear a truss, and when he would cough it would produce a couple of lumps a lump in each groin. These I interpreted to be a rupture produced by excessive coughing. This sputum he was spitting up was examined and found to be negative for T. B. but had an enormous lot of pus cells and it would indicate that the tissues and cells were being destroyed. There was also some blood in the sputum. There was a lot of râles through the base of his chest and more prominent in the left side; that is they extended higher. There was bronchial breathing and I had some x-ray pictures taken
"Mr. Dawson: Just a minute. Did you take those pictures yourself?
"A. I took him to the laboratory and had him stripped right down and the technician there took the x-rays under my supervision and observation. The x-ray findings verified my physical findings. The bronchial tree and tubes of this man showed up in the x-ray picture about as plain as I have ever seen them show up when we have the stuff in them to take an x-ray picture. They showed up white fibrosis according to my interpretation of the bronchial tree. There were a few of the lymph nodes that were calcareous and showed up in the x-ray.
"Q. Now, Doctor, what effect upon a man's physical well being do these findings indicate? A. To my mind these findings incapacitate this man and put him in the class of total and permanent disability for labor, for work.
"Q. In what way do they affect him how effect that result? A. There are several ways. We know from these findings that the blood stream that carries the blood and nutrition to the body is deprived of carrying it to the body, of carrying oxygen to the body.
"Q. What effect upon a man's ability to act does the failure of the body to get the needed oxygen have? A. Well I would illustrate it like this. If you were placed in a small room and all the oxygen taken out of the room it would be something like that, you couldn't get enough oxygen to keep on breathing with. This man is being starved for want of oxygen. That destroys his vitality, his endurance, his alertness. The breathing would probably be more rapid, more irregular. It would probably be nature calling for more oxygen.
"Q. What in your judgment produces this violent coughing? A. The enormous amount of infection that this man was having in his nose and throat and bronchial tubes and besides that the destruction of those tissues as well as the fibrous formation around the bronchial tree and tubes to the lungs. This patient, the slightest irritation would produce the cough and expectoration. It clears off those waste products and you can secure a little more oxygen.
"Q. In the condition in which you found this plaintiff in 1928 state whether or not he was able to perform continuously any kind of labor? A. In my opinion he was not able to continuously carry on any labor that created any exertion to amount to anything.
"Q. What would you say as to his condition at the present time in that respect? A. I would say he is probably getting worse every year.
"Q. Doctor, you may assume that the plaintiff in this action, Benjamin F. Stephens was born in Indian Territory on or about the 12th day of July, 1881; that he was raised on a farm and never did any substantial amount of work or labor except farm work up to the time he enlisted in the army, Feb. 26, 1918. That in his schooling he advanced as far as the third grade reader and now can scarcely read, neither read nor write. As a young man he entered into his service and enjoyed going to dances and such amusements, enjoyed hunting and never suffered from coughs or colds or throat or lung trouble; that he worked during the farming season of every year from the time he was old enough to work until he entered the service and received the going wages for farm work in the community in which he lived and worked. That he pitched hay and worked around threshing machines, pitching bundles to the machines. At the time he enlisted in the service he weighed 122 pounds, was 5 feet 3½ inches high; that he never suffered pain or weakness in the knees or feet and never had any trouble with his lungs or bronchial tubes. He enlisted February 26, 1918, at Twin Falls, Idaho; that on this *698 date before being inducted into the service, he passed a general physical examination by the government doctor who found head, chest, abdomen, extremities normal; heart normal, nose and throat normal, genito-urinary organs normal; hernia none; hemorrhoids none. Vision right eye 20/20 1; left eye 20/20x; hearing right ear normal; left ear normal; pyorrhea slight; curvature of spine slight, left. Hyperdosis slight both feet. That he went to the Fort Douglas, Utah, from Twin Falls; that while at practice throwing hand grenades he injured his thumb on the right hand which thumb still continues to give him pain; that he was not hospitalized but was marked `quarters' and just laid around; that he remained at Fort Douglas until the last of June when he was sent to Camp Funston and then to a development camp at Fort Riley and from there to Camp Merritt, New Jersey, and thence to Brest, France, and from there to the rest camp where he stayed about a week. From there he was taken to a station back of the front and here he was under shell fire. That he was in Company 353 Ambulance corps as stretcher bearer; that about six o'clock on the morning of October 26, 1918, while he was sleeping in a cave a shell exploded within about five feet of him, a fragment of the shell striking his helmet which rested on his head with such force he thought his head was cut open and that at the same time and by the same shell he was gassed. This gas he inhaled and it also came in contact with his eyes and neck; that he was shortly thereafter taken to base hospital 35 where he was treated; that at this base hospital 35 on October 30, 1918, the hospital record shows: `Gassed in action October 26, 1918. Diagnosis: Gas absorption of deleterious mustard, inhalation and surface contact in action.' Another report on the same day base hospital No. 8, A. E. F. shows: `Surface contact with deleterious gas, eyes and neck'; that for about four weeks he was unable to speak above a whisper and for three weeks he could not see and was confined in the hospital and under treatment from that time until January 5, 1918, when he was taken from the hospital in an ambulance to the transport boat which took him to Fox Hill, England. He was there put again in a hospital for about a week when he was taken in an ambulance to the transport which brought him across to New York where he was conveyed in an ambulance to the train which carried him to Fort Douglas, Utah, where he remained under medical treatment until his discharge from the army May 26, 1919, except for about two weeks just prior to his discharge when he was on a furlough at a friend's near Twin Falls, Mr. John Hollan's; that he returned from this furlough to the same hospital; that he went from the hospital at Fort Douglas at Salt Lake and down on the train to Twin Falls; that at the time of his discharge he was examined by the government doctors and this question was asked, `Have you any reason to believe that at the present time you are suffering from the effects of any wound or injury or disability or that you have any disability or impairment of health whether or not incurred in the military service, in which he declared that the foregoing questions and my answers thereto have been read over to me and that I fully understand the questions and that the replies thereto are true in every respect and are correctly recorded; that he testifies now that he does not remember any examination of that kind taking place at that time; that the medical examination certified `I certify that aside from his own statement I do not know nor have I any reason to believe, that the soldier who made and signed the foregoing declaration has a wound, injury or disease at the present time, whether or not incurred in the military service of the United States; that the examining doctor further certified that the soldier named above was given a thorough physical examination and it was found he was physically and mentally fit with the following exception, mustard gas, eyes and lungs October 26, 1918, Argonne Forest, France. This is the soldier's statement. The wound, injury or disease is not likely to result in death or disability. In my opinion the wound, injury or disease did originate in the line of duty in the military service of the United States. In view of occupation he is no per cent. disabled. Signed William F. Beer, Major. That while he was in the hospital at Fort Douglas the clinical record shows a variation of temperature between morning and night and on various days that would be higher in the morning than afternoon; that on the 27th day of October it shows him in bed with light diet, treated with digitalis and codeine which were given him regularly for several days. X-ray findings under date of January 22, 1923, shows moderate bronchitis with slight beading, right side above fourth rib; apices somewhat shaded. Another x-ray finding under date of February 9, 1924, gives apices shaded, marked thickening and widening of hilus with a fine network of fibrous lines extending to the periphery and occupying the middle portion of the chest with right side more marked, few *699 evidences toward base, angles clear; little calcification. That upon the return of the plaintiff to his home or his friend John Hollan's home in Twin Falls he coughed almost continuously; that he could not sleep and the coughing weakened him so he could not work and it woke him up most every night; that at no time has he been able to sleep on the left side; that his throat and lungs seem to fill up until he coughs or belches; that upon his return from the service he has pains in his knees and feet which continue to the present time; that at the time he entered the service he weighed 122 pounds and that he now weighs 118 pounds; that the coughing became so severe as early as 1919 or 1920 that he ruptured himself; that this rupture has now grown to a double hernia; that he was operated on for this hernia in 1920, when his appendix was removed; that the operation for the hernia was effective for about six months when it broke out again; that he has a good appetite but can eat no foods containing acids; that during the summer, fall and the winter of 1919 he first tried to put up hay but was unable to because the work made him cough and breathe hard. That he did chores around the house; that in the fall of 1919 he picked apples but found the work too heavy for him but he continued to pick and was paid by the box; that in 1920 he tried to mow his lawn but could not; that sometimes he would fall down from exertion; that in 1925 he suffered a severe hemorrhage of the lungs and was taken to the Twin Falls hospital and treated for two weeks; then to the Veterans Hospital at Boise and treated for two weeks; that frequently he spits blood; that he tried to help his brother-in-law in 1924-25 picking apples and was paid by the box but was not able to work steady; that at other apple picking seasons about 1924-25 he has picked apples, also picking by the box; that this work has exhausted him; that the only kind of manual labor that he is now doing or able to do is janitor work which exhausts him; that he frequently feels weakness in the knees and feet, making it difficult for him to stand up; that the sweeping in his janitor work makes him cough so he has to rest at times; that his wife has helped him do his janitor work and wash windows and sweep and dust; that when she does not help, at times he has had assistance from other sources; that climbing stairs exhausts him and at times when he would go to get his pay for service in taking care of the Danceland, on climbing the steps he would be so exhausted that on reaching the top he would sit down and rest before asking for his money, his pay; that a sudden explosion will excite and disturb him; that this so affects him that he stands, has to stop and regain his equilibrium; that since his return from the service he does not care to attend dances or social gatherings and does not care to hunt because of the discharge of the gun; that he goes into a rage on the slightest excuse; that his condition seems to be gradually growing worse as time goes on; that he has received aid from various persons. That a Dr. Hal Bieler, United States Public Health Service on July 13, 1920, reported the following results of a physical examination: `A thin, small man with persistent cough. Eyes, nose, teeth and glands negative. Throat has congested appearance. Lungs show much moisture throughout and at the left base there are loud, moist râles, squeaks and groans. Supraclavicular fossae well marked, impaired resonance over both apices and at right base post. Heart regular, 72, no murmurs, sounds are distinct. Blood pressure S.100.D.70. Abdomen negative. Right inguinal hernia supported by truss. Extremities normal, no edema, urine normal. Sputum negative for T. B.' That on January 22, 1923, Dr. Ensign reported the following findings: Moderate bronchial tree with slight beading; right side up above fourth rib; apex is somewhat shaded. Right hilus broad, left side clear. Angles clear and diaphragm regular. That on February 15, 1920, Dr. Thomas I mean Theodore Schwartz reported the following physical findings: Height 65 inches, weight 120 pounds (this is the normal average weight). Pulse sitting 70; standing 92. Temperature 98.3. Heart normal. Chest Chest full of coarse râles, all the symptoms of chronic bronchitis present. No dullness found on apices. No signs of T. B. Abdomen and extremities normal. Burning sensation referred to left side three inches below nipple. No objective signs. States pain occurs when he is warm, and that causes extra coughing spells.
"In addition to this, consider the findings that you made and which you have placed in the record and assuming the following definition of total and permanent disability to be `Total disability is any impairment of mind or body which makes it impossible for the disabled person to follow continuously any substantially gainful occupation and permanent disability is as follows: Total disability shall be deemed to be permanent whenever it is founded upon conditions which render *700 it reasonably certain that it will continue throughout the life of the person suffering from it.'
"Now will you please state if in your opinion Benjamin F. Stephens was permanently and totally disabled within the meaning of the within the foregoing meaning at the time of his discharge from the army on May 26, 1919?
"Mr. Dawson: Objected to on the ground that the hypothetical question propounded to the witness does not give a full and fair statement of the material facts in this case and according to my notion misstates some facts in that there is no evidence showing that the hernia was caused by his coughing and that there is no evidence in this case that this man fell from exhaustion while working or that he frequently spit blood, or that his work as a janitor exhausted him or that his lungs became filled with dust while working as a janitor. Furthermore the question does not state the work record of the man from 1926 to the present time fully and fairly. Secondly the question propounded to the medical witness asks for his opinion as to the ultimate fact in the case which invades the province of the jury.
"The Court: What would you say as to your statement not being a substantial statement, not including the work record up to the present time?
"Mr. Wolfe: I thought I had it fairly well. I may not have gone far enough into the different jobs he has carried on. I would like to add that to the question.
"The record shows that in 1919 or early 1920 the plaintiff performed janitor work for Mr. Lloyd for which he received $8.00 a month; that he worked in that capacity six or eight months; that about 1926 he shined shoes in the barber shop of Jerry Hunt; that in doing this he occasionally took fits of coughing, sometimes left the room and sometimes sustained himself against anything he might see and sometimes sat down; that since that time, on his return to and from other jobs he worked at he frequently goes into the shop and sits down and sometimes leans over and goes to sleep; that about 1927 he commenced doing janitor work for Mr. Dell, taking care of Danceland where he cleaned out and janitored up the building which is about 125 by 60 feet or something like that; in this work he has been engaged practically all of the time from that date until the spring of 1933, except about a year when he was not so engaged; that in this work he was assisted by his wife until about 1930; that for this service he received $2.00 a night and part of the time $2.50; that sometimes when his wife did not assist him he was assisted by others; that in doing this work he moved around as observed by Mrs. Dell, very slowly, sometimes having severe coughing spells and sometimes this produced active breathing, heavy breathing; that many times in addition to his pay they gave him clothing and other assistance; that from 1928 until 1932 he janitored the office of Charles E. Potter which was a room about half as large as the space occupied by the jury; that for this he received $5.00; that he janitored and took care of Pixton's restaurant managed by Mr. Salmon from 1928 down to the present time; that Mr. Salmon noticed that he frequently coughed very violently and sometimes rested; that he performed janitor work for Mr. Eldredge which consisted of cleaning the stairs and hallway in a building in Twin Falls; and for this he received, or receives now about $8.00 a month; that in taking care of the Pixton place he was assisted by his wife at times. There may be something else that goes in if I could but think of it.
"Mr. Dawson: I believe the record shows that W. J. Lloyd paid him $8.00 a week, not $8.00 a month. I further insist that there be stricken from the question, as there is no evidence to show, that he fell from exhaustion while working or that he frequently spat blood; there is no evidence of his spitting blood frequently; there is evidence he spat blood but not frequently. There is no evidence at all that the work as a janitor exhausted him. I don't recall Mr. Salmon's testimony that he coughed violently and frequently rested while working for him.
"Mr. Wolfe: The falling down may be stricken out, while mowing the lawn that may be stricken out from the record. The rest I think is properly there.
"The Court: Do you think there is any evidence that he became exhausted from janitor work? I do not recall any witness using that term.
"Mr. Wolfe: I think that is a fair interpretation, perhaps not the exact language of Mrs. Dell and Mr. Salmon.
"The Court: No one testified that the coughing caused the recurrence of the hernia.
"Mr. Wolfe: I understood such was the testimony.
"The Court: The coughing?
"Mr. Wolfe: That is my memory.
*701 "The Court: The ruling in regard to expert testimony based upon a hypothetical question which must relate a substantial statement of the evidence is that a fair substantial statement be made of the evidence and given to the witness. I also instruct the jury in these cases that they can consider the testimony of the expert witnesses but if they think it is not based on a fair statement of the testimony they can give it no value whatever. The jury is cautioned in that regard in the instructions of the court. I will overrule the objection.
"Mr. Dawson: I would like an exception.
"The Court: Granted.
"Q. Doctor, do you have in mind the question that you are now asked to answer, the hypothetical question? A. I do, the substance of it, I think.
"Q. Do you understand that that includes your own observations of this man? A. Yes.
"Q. Now tell the jury if in your opinion this man was totally disabled on the 26th of June the 26th day of May, 1919?
"Mr. Dawson: Same objection as given to the previous question.
"The Court: Overruled.
"Mr. Dawson: Exception.
"A. In my opinion I think he was.
"Q. State whether or not in your opinion that total disability was permanent? A. In my opinion
"Mr. Dawson: Same objection.
"The Court: Same ruling.
"Mr. Dawson: Exception.
"The Court: What date, Mr. Wolfe?
"Mr. Wolfe: May 26, 1919.
"Q. Will you answer? A. In my opinion I think his disability was permanent."
The objection to which we address our attention is as follows: "Secondly, the question propounded to the medical witness asks for his opinion as to the ultimate fact in the case which invades the province of the jury."
It has been held in a number of recent cases that the answer to such a hypothetical question invades the province of the jury. U. S. v. Bass (C. C. A. 7) 64 F.(2d) 467, 470; U. S. v. Sauls (C. C. A. 4) 65 F.(2d) 886; Prevette v. U. S. (C. C. A. 4) 68 F.(2d) 112; Harris v. U. S. (C. C. A. 4) 70 F.(2d) 889, 890; Miller v. U. S. (C. C. A. 5) 71 F.(2d) 361; U. S. v. Steadman (C. C. A. 10) 73 F.(2d) 706, decided October 30, 1934.
In U. S. v. Bass, supra, decided April 7, 1933, the Circuit Court of Appeals of the Seventh Circuit considered the question of the admissibility of opinion evidence in answer to such a hypothetical question, and said: "Error is also assigned on the ruling of the trial judge sustaining an objection to questions asked of two physicians for their opinion as to whether or not Bass was totally and permanently disabled. That was the very question to be determined by the jury and the trial judge permitted full inquiry as to the basic facts from which the conclusion was to be drawn."
In U. S. v. Sauls, 65 F.(2d) 886, 887, the Circuit Court of Appeals for the Fourth Circuit passed upon the question as to the admissibility of such evidence in response to a hypothetical question. We quote from that opinion as follows:
"A new trial is asked on the further ground that the court, over the objection of the government, allowed certain witnesses to give their opinions as to the inability of plaintiff to engage continuously in a gainful occupation. The exception to the following question asked the witness Iseley and his answer thereto present the point. The witness was asked the question: `I ask you Mr. Iseley, from your observation of him, whether or not, in your opinion, since you first knew him, in 1923, up to now, he has been able to engage continuously in any gainful occupation?' And he answered: `No, sir, his physical condition was such he could not.'
"We think that this question and answer were clearly objectionable, in that they invaded the province of the jury, and that this objection is valid irrespective of whether the witness be a lay witness or an expert. The ultimate question on the totality of disability was whether plaintiff was able to follow continuously a substantially gainful occupation. What is meant by continuously in the regulations construing a war risk policy is a question of law. See Carter v. U. S. (C. C. A. 4) 49 F.(2d) 221. The same is true as to what is to be deemed a gainful occupation under these regulations. The question permitted the witness to settle these questions of law for himself, and, applying this law to the facts within his knowledge, to try the very question which the jury had been impaneled to try. This should not be permitted. Spokane & I. E. R. Co. v. U. S., 241 U. S. 344, 36 S. Ct. 668, 60 L. Ed. 1037; National Cash Register Co. v. Leland (C. C. A. 1) 94 F. 502; Safety Car Heating & Lighting Co. v. Gould Coupler Co. (C. C. A. 2) 239 F. 861, 865; Castner Electrolytic *702 Alkali Co. v. Davies (C. C. A. 2) 154 F. 938, 942; Standard Fire Extinguisher Co. v. Heltman (C. C. A. 6) 194 F. 400, 401; Smith v. Board of Comm'rs of Lexington, 176 N. C. 466, 97 S. E. 378; Kerner v. So. Ry. Co., 170 N. C. 94, 97, 86 S. E. 998; Deppe v. Atlantic Coast Line R. Co., 154 N. C. 523, 524, 70 S. E. 622; Phifer v. Carolina Cent. R. Co., 122 N. C. 940, 29 S. E. 578; Marks v. Harriet Cotton Mills, 135 N. C. 287, 47 S. E. 432; 22 C. J. 502, and cases there cited."
In Prevette et al. v. United States, 68 F.(2d) 112, 113, supra, decided January 4, 1934, by the Circuit Court of Appeals for the Fourth Circuit, the court said: "Over the objection of the plaintiff, a physician, testifying for the United States, was allowed to express the opinion, in answer to a hypothetical question based on the work record of the insured, that on October 28, 1918, the insured was not totally and permanently disabled. It was error to receive this testimony for the reasons pointed out in our decision in United States v. Sauls, 65 F.(2d) 886."
These decisions were followed by that court in the later case of Harris v. United States, 70 F.(2d) 889, 890, decided May 1, 1934, in which the court said: "As to the other assignment of error relating to the medical testimony, that also is without merit, because had the physician been permitted to answer the question, this would have been tantamount to permitting him to settle matters of law for himself and by applying the same to the facts within his knowledge, to try the very questions that the jury had been impaneled to try. In Prevette v. United States, 68 F.(2d) 112, and United States v. Sauls, 65 F.(2d) 886, this court held that similar testimony should be excluded."
The Circuit Court of Appeals for the Fifth Circuit, in Miller v. U. S., 71 F.(2d) 361, 362, decided June 8, 1934, held that the testimony of the physician that in his opinion the veteran was totally and permanently disabled was insufficient evidence of the fact to take the case to the jury. In view of the fact that this decision calls attention to and is in part based upon the recent decision of the Supreme Court in Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 275, 78 L. Ed. 492, as to what constitutes permanent and total disability within the meaning of the war risk insurance policy, we quote from the opinion in Miller v. U. S., supra, as follows:
"The history of the matter is this: The War Risk Insurance Act of 1917 (40 Stat. 398) provided in separate articles for compensation for death or disability contracted in the line of duty, and for insurance against death or total permanent disability. Total permanent disability was not defined by the act. On March 9, 1918, it was ruled both as to compensation and insurance that any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed to be total disability, and that the disability shall be deemed permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering it. T. D. 20 W. R. The courts generally accepted this as a correct definition of the total permanent disability insured against, but it was said in Lumbra v. United States, 290 U. S. 559, 54 S. Ct. 272, 78 L. Ed. 492, not to be an exact definition of total permanent disability or the sole guide by which that expression is to be construed in term insurances. * * *
"Regulations aside, the evidence did not warrant a finding of total permanent disability. The phrase is to be construed reasonably, and, having regard to the circumstances of each case, without fixed rules or formulæ uniformly governing the construction. Lumbra v. United States, 290 U. S. 551, 558, 54 S. Ct. 272, 78 L. Ed. 492. Such disability as Miller had because of his defective eye and the loss of his right hand was permanent, but it was not total. He was without pain or sickness. He had one good eye and the other was of some use. * * *
"Neither do we think the opinion of his physician that he was totally disabled of any weight. That was the ultimate question to be settled by the trial, and a witness ought not to have been allowed to attempt to decide it. United States v. Sauls (C. C. A.) 65 F.(2d) 886; United States v. Bass (C. C. A.) 64 F.(2d) 467."
These cases are all authority for the proposition that the question objected to in the case at bar called for incompetent evidence because the opinion called for invaded the province of the jury. The decision of the Circuit Court of Appeals for the Seventh Circuit in United States v. Matory, 71 F.(2d) 798, 799, by Circuit Judges Fitzhenry, Evans, and Sparks, was evidently not intended to overrule the decision of the same court in U. S. v. Bass, 64 F.(2d) 467, supra, by Circuit Judges Alschuler and Evans and District Judge Wilkerson, for it is based upon Prevette v. U. S., supra, and U. S. v. Sauls, *703 supra, which are in accord with U. S. v. Bass, supra. The court, in U. S. v. Matory, supra, said: "It was error to permit the medical witnesses of appellee to testify that he was totally and permanently disabled without qualifying them with a knowledge of the meaning of total and permanent disability in a suit upon a war risk insurance policy. Prevette v. United States (C. C. A.) 68 F.(2d) 112, 113; United States v. Sauls (C. C. A.) 65 F.(2d) 886, 887."
The inference from the quoted statement is that, if the question had embraced the proper legal test of permanent and total disability, it would have been a proper question, but this assumption is dictum.
The appellee contends that the decisions for the Fourth and Seventh Circuit Courts of Appeals are erroneous and should not be followed. Before further consideration of that question, we call attention to the fact that the specific question asked in the case at bar has some objectionable features not involved in the above decisions. A hypothetical question which calls upon a witness to determine the credibility of other witnesses or to pass upon conflicts in the testimony invades the province of the jury, whose duty it is to determine where the truth lay in cases of conflicts in the evidence. Dexter v. Hall, 15 Wall. (82 U. S.) 9, 21 L. Ed. 73; Jones on Evidence, vol. 2, § 372; Estate of Gould, 188 Cal. 353, 205 P. 457; 22 C. J. § 807, p. 720. As stated in Jones on Evidence, vol. 2, § 372:
"* * * All questions calling for their [expert] opinion should be so framed as not to call upon them to determine controverted questions of fact or to pass upon a preponderance of testimony. * * * When the question is so framed as to call upon the expert to determine as to which side of the evidence preponderates, or to reconcile conflicting statements, he is in effect asked to decide the merits of the case, which is a duty wholly beyond his province. * * *
Page 913: "Although cases almost without limit might be cited which recognize the principle that an expert cannot be called upon to give an opinion determining the merits of the case or to weigh conflicting evidence, or to judge credibility of the testimony, such witnesses are constantly allowed to state their opinions based upon facts within their own knowledge or facts assumed in hypothetical questions. If the hypothetical question properly presents the fact which the evidence tends to prove, and does not call upon the witness to reconcile conflicting evidence or pass upon the merits of the case, a wide range may be given by the court and a liberal allowance as to its form."
In the foregoing question, the witness was asked to assume that at the time of insured's discharge the medical officer who examined him certified that the insured was physically and mentally fit excepting only the results of exposure to mustard gas on October 26, 1918, and that that disability was not likely "to result in death or disability," and that "in view of his occupation he was not disabled at all." The question called upon the witness to determine whether or not in his opinion at the time of the defendant's discharge on May 26, 1919, he was totally and permanently disabled, and this in the teeth of the medical certificate that at that time he was not disabled at all. In effect, the witness was called upon to determine whether or not at the time of his discharge the certificate of the medical examiner signed at that time did or did not state the true condition. If it stated the true condition, of course he was not then totally and permanently disabled. The witness could not assume the certificate to be true without answering that the veteran was not disabled at the time of his discharge. It is evident, therefore, that in his answer he assumed that the certificate did not state the truth. The certificate referred to had been introduced by the plaintiff, and was entitled to such weight as the jury might assign to it. It is manifest then that the hypothetical question called upon the witness to invade the province of the jury in determining where the truth lay with reference to the condition of the veteran at the time the medical examiner certified that he was under no disability. For this reason alone the objection should have been sustained.
The same objection would apply to the statement of the veteran that he was not disabled when discharged. In this connection it appears from the government records introduced by the plaintiff that on May 23, 1919, he was asked the question, "Have you any reason to believe that at the present time you are suffering from any effects of any wound, injury or disease, or that you have any disability or impairment of health whether or not incurred in the military service," and that the insured answered "No." The fact that this question was asked the insured at the time of his discharge is stated in the hypothetical question above quoted, but the answer "No" to the question given in the medical record is not embodied in the hypothetical question, although no doubt this fact *704 was overlooked by the court, by counsel, and by the jury. We refrain from further discussion of that phase of the matter because of the fact that it appears from the transcript that the hypothetical question did not include the answer of the veteran.
We now pass to a consideration of the general question as to whether or not the submission of the question of permanent and total disability to the witness invaded the province of the jury. The decisions of the Circuit Courts of Appeals for the Fifth and Seventh Circuits held that to permit a medical witness to give an opinion on whether or not the veteran who claims to be totally and permanently disabled is able continuously to engage in an occupation is to permit the witness to decide the very question to be submitted to the jury. That this ruling is correct is made clear by the nature of the question and answer admitted in the case at bar. The question incorporated a definition of total and permanent disability, so that in effect the attorney asking the question instructed the witness as to what constituted total and permanent disability under the law, and submitted to the witness the question as to whether or not under that law the witness was of the opinion upon the facts assumed that the disability of the veteran was total and permanent. Thus the witness was asked to decide the exact question for the jury; that is, the question of total and permanent disability under the law and the facts. The witness received his instructions as to the law from the attorney instead of from the court, and delivered an "opinion" upon the law and the facts instead of a verdict, as in the case of the jury. In addition to determining what constitutes continuous employment, the witness was called upon to determine whether in his opinion the rewards for the labor of the insured have been, or may be expected to be, substantially gainful. This again was a question for the jury and not for an expert medical witness.
There is another phase of the hypothetical question which is objectionable as an invasion of the province of the jury. The witness was called upon to state whether or not the veteran was capable of continuously following any gainful occupation whatever. This leaves to the witness the duty of surveying the whole field of human endeavor to determine whether or not the veteran was capable of engaging in any substantially gainful occupation. The hypothetical question does not ask the witness to confine his answer to any specified occupation, nor does it call the attention of the witness to the requirements of any particular occupation, and hence the hypothetical question is open to the common objection that it does not disclose the facts upon which the answer of the expert is to be based. Raub v. Carpenter, 187 U. S. 159, 161, 23 S. Ct. 72, 47 L. Ed. 119; Wigmore on Evidence, § 681. It leaves the witness, in regard to occupation, to do exactly what each juror is called upon to do; namely, to use his common knowledge as to the requirements of the various occupations and to determine upon such knowledge whether or not the veteran is capable of pursuing any gainful occupation. The jury should have been informed by the witness as to the extent of the physical disability of the veteran and then should have applied to that information its own common knowledge of the affairs of men in reaching a verdict.
"* * * From the very nature of expert testimony it follows that it is admissible only when it relates to a subject matter with which the average experience and common sense of the jury are insufficient to deal." 11 R. C. L. § 19, p. 591, supra.
See, also, Inland & Sea-Board Coasting Co. v. Tolson, 139 U. S. 551, 560, 11 S. Ct. 653, 35 L. Ed. 270. As stated by the Supreme Court of California in Kauffman v. Maier, 94 Cal. 269, 29 P. 481, 484, in connection with the admissibility of the testimony of a machinist as to whether or not a rough revolving shaft was dangerous to workmen in the vicinity: "Such questions are to be determined by the jury themselves, either from their own experience in matters of common observation, or from all the evidence in the case, and cannot be asked of witnesses, even if such witnesses are experts in some particular art or science. Sappenfield v. Main Street, etc., R. R. Co., 91 Cal. 60, 27 P. 590. If the court permits the jury to be influenced by the judgment of such witnesses, it deprives the litigants of their right to have the jury render its verdict upon the facts in the case, and to this extent substitutes the judgment of the expert for what should be the judgment of the jury."
But there is an even more serious objection to the question in this, that the definition of total and permanent disability submitted to the witness is not the legal test of total and permanent disability. In Lumbra v. United States, supra, it is held that this definition is not the sole test of total and permanent disability. Up to the time of the decision of that case by the Supreme Court, it had been assumed in the trial of war risk *705 insurance cases that the administrative definition was the legal definition of total permanent disability. That definition has been incorporated in hypothetical questions and in instructions to the jury in many cases. As pointed out by the Supreme Court, it is not a very satisfactory definition, because, in the case of any illness which is likely to recur from time to time, it could be said that the veteran was not able "continuously" to labor. In view of the importance of the matter, in this and other pending cases, we quote from the decision of the Supreme Court in Lumbra v. United States, supra, as follows:
"The war risk contract unqualifiedly insures against `total permanent disability.' The occasion, source, or cause of petitioner's illness is therefore immaterial. His injuries, exposure, and illness before the lapse of the policy and his condition in subsequent years have significance, if any, only to the extent that they tend to show whether he was in fact totally and permanently disabled during the life of the policy. March 9, 1918, in pursuance of the authorization contained in the War Risk Insurance Act, the director of the Bureau ruled (T. D. 20 W. R.): `Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed * * * to be total disability. Total disability shall be deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.'
"The phrase `total permanent disability' is to be construed reasonably and having regard to the circumstances of each case. As the insurance authorized does not extend to total temporary or partial permanent disability, the tests appropriate for the determination of either need not be ascertained. The various meanings inhering in the phrase make impossible the ascertainment of any fixed rules or formulæ uniformly to govern its construction. That which sometimes results in total disability may cause slight inconvenience under other conditions. Some are able to sustain themselves, without serious loss of productive power, against injury or disease sufficient totally to disable others. It cannot be said that injury or disease sufficient merely to prevent one from again doing some work of the kind he had been accustomed to perform constitutes the disability meant by the act, for such impairment may not lessen or affect his ability to follow other useful, and perchance more lucrative, occupations. Frequently serious physical impairment stimulates to successful effort for the acquisition of productive ability that theretofore remained undeveloped.
"The above-quoted administrative decision is not, and manifestly was not intended to be, an exact definition of total permanent disability or the sole guide by which that expression is to be construed. If read literally, every impairment from time to time compelling interruption of gainful occupation for any period, however brief, would be total disability. And, if such impairment were shown reasonably certain not to become less, it would constitute total permanent disability. Persons in sound health occasionally suffer illness requiring them to remain in bed for a time. It is not inaccurate to describe such illness as `total disability' while it lasts. But clearly it is not right to say that, if they remain sound but reasonably certain throughout life occasionally to have like periods of temporary illness, they are suffering from `total permanent disability.' Such a construction would be unreasonable and contrary to the intention of Congress. `Total disability' does not mean helplessness or complete disability, but it includes more than that which is partial. `Permanent disability' means that which is continuing as opposed to what is temporary. Separate and distinct periods of temporary disability do not constitute that which is permanent. The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life. But manifestly work performed may be such as conclusively to negative total permanent disability at the earlier time.
"It requires no discussion to show that the evidence in respect of petitioner's condition during the life of the policy has no substantial tendency to prove total permanent disability at the time of the lapse. The evidence as to his subsequent condition may be considered only for the purpose of determining his condition while the contract was in force. His conduct following the alleged accrual of his claim reflects his own opinion as to whether he was totally and permanently disabled at the time of the lapse. His own statements to medical men, their diagnoses, his repeated applications to the government for compensation, and his failure earlier to assert any claim, show that for a decade he did not believe that he was totally and permanently disabled when he let his policy lapse May 31, 1919. And in the absence *706 of clear and satisfactory evidence explaining, excusing, or justifying it, petitioner's long delay before bringing suit is to be taken as strong evidence that he was not totally and permanently disabled before the policy lapsed.
"It may be assumed that occasional work for short periods by one generally disabled by impairment of mind or body does not as a matter of law negative total permanent disability. But that is not this case. Petitioner, while claiming to be weak and ill and, contrary to the opinion and diagnoses of examining physicians, that he was really unable to work, did in fact do much work. For long periods amounting in the aggregate to more than five years out of the ten following the lapse of the policy he worked for substantial pay. No witness, lay or expert, testified to matters of fact or expressed opinion tending to support petitioner's claim that he had suffered `total permanent disability' before his policy lapsed. Unless by construction these words are given a meaning far different from that they are ordinarily used and understood to convey, the evidence must be held not sufficient to support a verdict for petitioner. The trial court should have directed a verdict for the United States. Gunning v. Cooley, 281 U. S. 90, 93, 50 S. Ct. 231, 74 L. Ed. 720; Stevens v. The White City, 285 U. S. 195, 204, 52 S. Ct. 347, 76 L. Ed. 699."
It is clear that, if the hypothetical question was otherwise unobjectionable, it was error to permit the witness to state a conclusion or opinion as to the veteran's total and permanent disability upon an erroneous definition of what constitutes total and permanent disability. The decision in the Lumbra Case, supra, makes it clear, if it was doubtful before, that the question of whether the veteran is able to follow a substantially gainful occupation with reasonable continuity is a question for the decision of the jury and not for the decision of a medical witness.
We hold, then, that the objection to the hypothetical question should have been sustained for the following reasons:
(1) It called upon the witness to solve conflicting inferences upon the assumed facts.
(2) It permitted the witness to determine what in his judgment constituted continuous employment.
(3) It permitted the witness to determine what amount of employment or reward for employment was substantially gainful.
(4) It did not limit the question to a single occupation or state the requirements of any occupation, and hence did not state the facts upon which the witness necessarily based his opinion.
(5) The submission to the witness of any definition of total and permanent disability in a question which required the witness to apply that definition to the assumed facts was an invasion of the province of the jury, and consequently not a subject for expert testimony.
(6) It submitted to the witness an erroneous definition of total and permanent disability as a basis for the answer to the question.
Judgment reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587493/ | 120 S.W.3d 611 (2003)
BILL'S PRINTING, INC., and First Security Bank
v.
George F. CARDER III and Sharon L. Carder.
No. CA 02-1147.
Court of Appeals of Arkansas, Division I.
June 18, 2003.
*612 R. Bryan Tilley, appellant.
John Patterson, P.A., Searcy, and Terry J. Lynn, Heber Springs, for appellees.
ROBERT J. GLADWIN, Judge.
Appellees George Carder and Sharon Carder brought suit to set aside a deed of cancellation issued by the Commissioner of State Lands and to quiet title to property they had purchased at a public sale. The Cleburne County Circuit Court held that the Commissioner had acted contrary to law in unilaterally canceling the limited-warranty deed granted to appellees and in ordering that the deed of cancellation be set aside. The trial court also found that appellant Bill's Printing, Inc., was not a bona-fide purchaser of the subject property. Appellants argue on appeal that (1) the trial court erred in setting aside the deed of cancellation and (2) the trial court erred in finding that Bill's Printing was not a bona-fide purchaser for value without notice. We disagree and affirm.
It was stipulated by the parties that C. Patrick Scholes and Laura Scholes owned a lot in Cleburne County that was properly certified delinquent by the Cleburne County Tax Collector to the State of Arkansas on June 30, 1997, for failure of the landowners to pay the taxes due on the land. On August 14, 1997, the Commissioner gave notice by certified mail to the record owners, C. Patrick and Laura Scholes, informing them that the taxes with respect to the subject property were delinquent and that the lands would be sold at a public sale to be conducted on August 26, 1999. It is stipulated that this notice, which was sent to the Scholeses' last known address but was returned unclaimed, satisfied the requirements of Ark. Code Ann. § 26-37-301 (Repl.1997).
The subject property was offered at a public sale by the office of the Commissioner of State Lands on August 26, 1999, and was purchased by appellees George and Sharon Carder. It was also stipulated by the parties that the public sale was conducted in compliance with the applicable law. On August 31, 1999, the Scholeses contacted the Commissioner's office and requested information to redeem the land. The Commissioner's office sent them a petition to redeem that contained all information required by law. The petition contained the information that a petition to redeem was valid for ninety days from the date printed, and that in the event the property was sold, they had thirty days from the date of sale to redeem the property. The petition did not notify them that the property had been sold on August 26, 1999, but listed the property as "subject to sale."
On September 29, 1999, the Commissioner executed a limited-warranty deed conveying the property to appellees, which was duly recorded on October 7, 1999. Evidence was introduced to show that on October 13, 1999, Patrick Scholes had the petition to redeem notarized and mailed it to the Commissioner's office with a check for the total amount needed to redeem the property. Thus, he paid the amount due within the ninety-day time frame allowed on property that has been certified to the State but not yet sold, but not within the thirty-day time frame that is required when the property has already been sold.
The Commissioner's office returned Mr. Scholes's check along with notification that the property had been sold in August and that the thirty-day redemption period had expired. Scholes then contacted the Commissioner's office for review of the sale. *613 Upon review, the Commissioner's office determined that an error had been made in that the office staff had failed to indicate on the petition to redeem that the land had in fact been sold. Although such an indication is not required by law, a representative from the Commissioner's office testified that it was an unwritten office policy to handwrite the date of sale on petitions to redeem land that had already been sold at the time the petition was mailed out. Because this information was not included on the Scholeses' petition, the Commissioner attempted to rectify the situation by executing a deed of cancellation on December 8, 1999, to set aside the limited-warranty deed issued to appellees and, on December 9, 1999, issuing a redemption deed in favor of the Scholeses.
On October 7, 2000, the Scholeses conveyed their interest in the subject property to Bill's Printing, Inc., and this deed was recorded on October 18, 2000. On December 21, 2000, appellees George and Sharon Carder filed a complaint seeking to set aside the deed of cancellation issued by the Commissioner of State Lands and to quiet title to the subject property.
Following a bench trial, the circuit court of Cleburne County found that the sale of the property by the Commissioner was conducted in accordance with the statutory requirements and that no error existed that would justify the cancellation of the limited-warranty deed under the provisions of Ark.Code Ann. § 22-6-102 (Repl. 1996); that because more than thirty days had passed since the sale of the property without redemption as contemplated by the provisions of Ark.Code Ann. § 26-37-203(a) (Repl.1997), the Commissioner acted contrary to law in unilaterally canceling the limited warranty deed granted to the Carders; that the deed of cancellation was therefore set aside, canceled, and held for naught; and that title to the subject property was quieted and confirmed in appellees. The court further found that the Carders' deed, which was filed in the records of Cleburne County, was notice of their interest in the property and that Bill's Printing, having been put on notice of such claim and having not taken any steps to inquire into the Carders' interest in the property, was not a bona-fide purchaser for value without notice.
The facts in this case are not in dispute; it is the trial judge's interpretation of the law that is at issue. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is whether the factual findings of the court are clearly erroneous or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999). However, a trial judge's conclusion of law is given no deference on appeal; manifestly, the trial judge does not have a better opportunity to apply the law than does the appellate court. Carter v. Green, 67 Ark.App. 367, 1 S.W.3d 449 (1999). If the law has been erroneously applied and the appellant has suffered prejudice, the erroneous ruling is reversed. Id.
On appeal, appellants contend that the circuit court erred in setting aside the deed of cancellation and finding that the Commissioner of State Lands acted contrary to the law in unilaterally canceling the limited-warranty deed granted to appellees. Appellants cite several statutory provisions in support of their argument that the Commissioner acted within his authority when he canceled the limited-warranty deed and issued the redemption deed. Arkansas Code Annotated section 22-6-102 addresses the correction of errors growing out of erroneous sales:
(a) The Commissioner of State Lands shall have the power to correct errors that exist or may exist arising from the erroneous sale of lands belonging or formerly belonging to the state.
*614 ...
(e) In all cases where lands have been erroneously confirmed to the state and sold by it, twice sold by commissioners, sold by them when the lands were unconfirmed or misdescribed, in whole or in part, or when the sales are in any way irregular, informal, or incomplete, the Commissioner of State Lands shall issue a certificate or take steps to perfect the entry or to enable the purchasers, their heirs, or assigns to have refunded to them any money which they may have paid on any entry that is void or voidable.
...
(h) The Commissioner of State Lands, on production of proof satisfactory to him, may correct errors and put land in a situation to have deeds thereon made. Ark.Code Ann. § 22-6-102(a),(e), and (h). Appellants also cite Ark.Code Ann. § 26-37-204(b) (Repl.1997), which provides: "The Commissioner of State Lands shall have the authority to set aside any sale. In the event the Commissioner determines that a sale shall be set aside, the purchaser may be entitled to reimbursement of [monies] paid to the Commissioner of State Lands." Appellants' position is that these statutory provisions gave the Commissioner the authority to correct an error made by the State that caused the Scholeses to fail to timely redeem their property.
In Gilley v. Southern Corp., 194 Ark. 1134, 110 S.W.2d 509 (1937), the court noted that a taxpayer who had made an attempt, in good faith, to pay his taxes, or to redeem his land after failure to do so, was not to be defeated in that attempt by the mistake, negligence, or other fault on the part of the public officers in the discharge of their official duties. However, the court went on to hold that there was no error of the clerk where the failure to include on the redemption certificate all of the property involved was as obvious to the owner as it was to the clerk. The court noted that the slightest examination of the redemption certificate would have disclosed the omission of the sixty-acre tract, and held that the clerk should not be charged with this omission as a neglect of his official duty. The court further observed that, except for the omission, there was no mistake in the certificate issued and that, on the contrary, it was a correct and sufficient description of all the land that it described.
Vanderbilt v. Washington, 249 Ark. 1070, 463 S.W.2d 670 (1971), involved the sufficiency of a tender of delinquent taxes to redeem lands from a tax sale. There the tender of delinquent taxes was considered actual performance, but the landowner had actually paid the delinquent taxes and the collector misapplied the amount. In the case now before us, there was no timely attempt by the Scholeses to pay their delinquent taxes.
In Aldridge v. Tyrrell, 301 Ark. 116, 782 S.W.2d 562 (1990), the supreme court again noted that an attempt by an owner, in good faith, to pay his taxes or to redeem his land after failure to do so, may not be defeated by the mistake, negligence, or other fault on the part of public officers in the discharge of their official duties. Tyrrell went to the assessor's office to ensure the change of ownership of two parcels on the tax records. The assessor mistakenly transferred only one of the parcels to reflect the change in ownership. Consequently, Tyrrell thereafter received a tax statement and paid taxes on only one parcel. The parcel that the assessor had mistakenly not transferred was eventually sold at a tax sale. Tyrrell was successful in having the limited-warranty deed that was issued pursuant to the tax sale set aside on the basis of the assessor's mistake in not changing the ownership information *615 on the property. The supreme court held that where Tyrrell had made a good-faith attempt to ensure that the taxes on his property would be correctly billed and paid and where the assessor admitted his office did not change the ownership of the property, Tyrrell's good-faith attempt to pay his property taxes would not be defeated by the assessor's mistake.
In Carter v. Green, 67 Ark.App. 367, 1 S.W.3d 449 (1999), we noted that the Commissioner had the authority to promulgate rules and regulations to further the intent of the Acts governing tax-forfeiture sales in holding that although Arkansas law at the time did not authorize the conveyance of property to unincorporated organizations, the sale was otherwise valid, and that the chancellor was correct in finding that the Commissioner was acting within the scope of his authority to issue correction deeds conveying the property to the trustees of an unincorporated association. In Carter we were again dealing with a mistake made by the Commissioner's office, specifically, naming the church, an unincorporated organization, as grantee instead of naming the trustees of the church as the grantees.
There were no irregularities or errors in the notice mailed to the Scholeses or in the public sale of the property. There was no erroneous action committed by the State that caused the Scholeses to fail to timely redeem their property. The "error" complained of by appellants and relied upon by the Commissioner in setting aside the limited-warranty deed was the omission of certain information that the State was not even required to provide to the Scholeses. The statutory provisions that give the Commissioner authority to correct errors contemplate erroneous, irregular, informal, or incomplete sales. The failure of the Commissioner's office to handwrite, on a petition to redeem, additional information that is not required by law or a promulgated office procedure does not cause an otherwise proper sale to be erroneous, irregular, informal, or incomplete. We agree with the trial court that the sale of the property by the Commissioner of State Lands was conducted in accordance with the requirements of Arkansas law and that no error existed that would justify the cancellation of the limited-warranty deed.
Appellants also argue that the trial court erred in finding that appellant Bill's Printing, Inc., was not a bona-fide purchaser for value, reasoning that Bill's Printing relied in good faith on the deed of cancellation and the redemption deed as having removed any superior claim to the property. We disagree.
Arkansas Code Annotated section 14-15-404 (Repl.1998) addresses the effect of recording instruments affecting title to property:
(a) Every deed, bond, or instrument of writing affecting the title, in law or equity, to any real or personal property, within this state which is, or may be required by law to be acknowledged or proved and recorded shall be constructive notice to all persons from the time the instrument is filed for record in the office of the recorder of the proper county.
(b) No deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, made or executed after December 21, 1846, shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration without actual notice thereof or against any creditor of the person executing such an instrument obtaining a judgment or decree which by law may be a lien upon the real estate unless the deed, bond, or instrument, duly executed and acknowledged or proved as required by law, is filed for record in the office of the clerk and ex *616 officio recorder of the county where the real estate is situated.
In Massey v. Wynne, 302 Ark. 589, 791 S.W.2d 368 (1990), our supreme court noted that recordation of an instrument that affects title to real property is constructive notice of that interest to all persons from the time the instrument is filed, and that a subsequent purchaser will be deemed to have actual notice of a prior interest in the property if he is aware of such facts and circumstances as would put a man of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of those prior interests. Here the Carders' limited-warranty deed was properly recorded and became part of the chain of title, thus putting Bill's Printing on constructive notice of their interest in the property. Additionally, the combined presence of a tax lien, the Carders' deed, a deed of cancellation, and a redemption deed in the chain of title constituted "such facts and circumstances as would put a man of ordinary intelligence and prudence on such inquiry [that], if diligently pursued, would lead to knowledge of his rights." Bowen v. Perryman, 256 Ark. 174, 180, 506 S.W.2d 543, 547 (1974).
The trial court was not clearly erroneous in finding that appellees' limited-warranty deed, which was filed in Cleburne County on October 7, 1999, was notice of their interest in the property and that appellant Bill's Printing, Inc., having been put on notice of such claim and having not taken any steps to inquire into appellees' interest in the property, was not a bona-fide purchaser for value without notice. Accordingly, we affirm.
Affirmed.
ROBBINS and NEAL, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587392/ | 944 So.2d 513 (2006)
Steven Charles ROGERS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D05-2914.
District Court of Appeal of Florida, Fourth District.
December 20, 2006.
*514 Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
POLEN, J.
Appellant, Steven Rogers, appeals the trial court's imposition of a habitual violent felony offender mandatory minimum sentence after finding him to be a prison releasee reoffender. Rogers pleaded no contest to one count of robbery, and the trial court sentenced him to thirty years in prison as a habitual violent felony offender, with a mandatory minimum of fifteen years as a prison releasee reoffender. Rogers filed a 3.800(b)(2) motion below, arguing that his sentences as a habitual violent felony offender and prison releasee reoffender were illegal, due to the State's failure to establish the requisite predicate offenses to classify him as a habitual violent felony offender, and its failure to adequately show the date of his release from prison. After reviewing the facts of the case, we agree. We reverse Rogers's sentence and remand with instructions for the trial court to hold another sentencing hearing and resentence Rogers.
After the entry of Rogers's plea, the trial court conducted a sentencing hearing. At the sentencing hearing, the State introduced evidence from a "Crime and Time" package. Rogers's fingerprints were matched to those on two fingerprint cards for previous crimes. The State also introduced a letter from a parole probation specialist which stated:
I ALSO CERTIFY that [Rogers] was received as a new commitment on 8-9-91 from St. Lucie County for the offense of Robbery with Deadly Weapon, Robbery With Firearm, Grand Theft for a term of eight (8) years. On 1-12-93 [Rogers] went out to court to Madison County. On 1-19-93 [Rogers] returned from court with a new sentence of Grand Theft Third Degree (Motor Vehicle), Grand Theft Third Degree (Firearm) for a term of two (2) years, six (6) months. On 11-21-99 [Rogers] was released by expiration of sentence to Probation Community Control to St. Lucie County.
The trial court took judicial notice of the package. A copy of the judgment from the second crime was introduced into evidence. The State also introduced evidence of a judgment for a violation of probation *515 on the first crime, using this to classify Rogers as a habitual violent felony offender. The trial court sentenced Rogers as detailed above.
After his sentence was handed down, Rogers filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion. In the motion, Rogers argued that one of the judgments put forth by the State was entered after the commission of the crime in the instant case, and did not meet the definition of a predicate offense. Moreover, Rogers argued that the other judgment put forth by the State was for a crime that was not one of the enumerated felonies found in section 775.084(1)(b), Florida Statutes, the statute controlling habitual violent felony offender classification. Rogers also argued that the State had not proven the date of his release from prison with competent substantial evidence.
The State requested a hearing on the matter. The trial court scheduled a hearing on Rogers's motion, but did not rule on the motion within the sixty-day time limit. Therefore, the motion was deemed denied by operation of law. See Fla. R.Crim. P. 3.800(b)(1)(B).
Section 775.084(1)(b), Florida Statutes, is the controlling statute for habitual violent felony offender classification. To be classified as a habitual violent felony offender, a defendant must have a prior conviction and sentence for one of the enumerated crimes listed in the statute, and must have committed the current crime either while serving another prison sentence, or within five years of the date of the prior conviction. § 775.084(1)(b), Fla. Stat. "[T]he State must provide record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last felony conviction." Mitchell v. State, 780 So.2d 282, 283 (Fla. 4th DCA 2001).
After review of the record, we find merit in Rogers's arguments. First, the record indicates that one of the judgments considered in his classification as a habitual violent felony offender was handed down after the commission of the crime in the instant case. While the crime introduced into evidence took place in 1991, the sentence was handed down in 2000, following the commission of the crime in the current case. Therefore, this "prior" conviction does not meet the requirements of section 775.084(1)(b), Florida Statutes. Further, the other conviction introduced at trial was for a crime not enumerated in section 775.084(1)(b), Florida Statutes.
Second, there is a lack of competent record evidence as to the date of Rogers's release from prison. The only evidence that speaks to Rogers's release is a letter from a parole/probation specialist detailing his release date. While letters from certain state officials have been held to be public record sufficient to establish a release date, we find this letter does not meet the standard this court laid out in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). In Yisrael, the State introduced a letter from the Correctional Services Administrator for the Florida Department of Corrections, which detailed Yisrael's date of release and certified that the included seal was the official seal of the Florida Department of Corrections. Id. In this case, however, the letter was from a parole/probation specialist, rather than a Department administrator, and while the letterhead contains the seal of the Florida Department of Corrections, the specialist does not certify that it is the official seal. The State agrees with Rogers's argument on this point and agrees the sentence should be reversed and remanded for resentencing.
*516 We find that the State failed to prove the requisite predicate offenses required, and failed to meet the standard laid out in Yisrael in proving the date of Rogers's last release. We reverse and remand Rogers's sentence for the trial court to conduct a new sentencing hearing.
KLEIN and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587464/ | 33 So.3d 657 (2008)
JONATHAN ERSKIN PITTS
v.
STATE.
No. CR-07-2053.
Court of Criminal Appeals of Alabama.
December 12, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587514/ | 120 S.W.3d 277 (2003)
Evan WALLER, et al., Plaintiffs/Appellants,
v.
YMCA OF GREATER ST. LOUIS and Corey Rogers, Defendants/Respondents.
No. ED 82924.
Missouri Court of Appeals, Eastern District, Division Five.
November 4, 2003.
Evan Waller, Jamarc Waller, Irma Chavis, Sharolynne Y. Wallers, St. Louis, pro se.
Gilbert Newton Beckemeier, Sandbert, Phoenix & Von Gontard, St. Louis, MO, for respondent, YMCA.
Harold L. Whitfield, St. Louis, MO, for respondent, Corey Rogers.
SHERRI B. SULLIVAN, Chief Judge.
On November 27, 2001, the trial court entered a judgment approving a settlement of Plaintiffs' Petition for Damages and Personal Injury. The original plaintiffs on the Petition for Damages were two minors and their mother as next friend. Prior to the trial court entering the judgment on Plaintiffs' Petition for Damages, the court granted Defendants' Motion to Disqualify the mother as next of friend. The trial court then appointed a guardian ad litem for the purpose of prosecuting the claims of the two minor plaintiffs. Subsequently, the two minor plaintiffs petitioned the trial court to appoint their maternal grandmother as next friend. The record *278 does not show that the trial court ruled on this motion.
On November 26, 2002, Appellants filed a Petition for Relief from the November 27, 2001 judgment pursuant to Rule 74.06(b).[1] The plaintiffs on the Petition for Relief were the two minors and their mother. On December 19, 2002, Defendants filed a Memorandum in Opposition to the Petition for Relief, raising, among other issues, that the mother does not have standing to bring the Petition for Relief as she was not a party to the November 27, 2001 judgment.[2] Subsequently, Mother filed a memorandum in opposition to Defendants' memorandum, to which Defendants' filed an Amended Memorandum in Opposition to the Petition for Relief.
On January 9, 2003, the trial court held a hearing on the Petition for Relief, at the end of which the court granted the mother an additional ten days to respond to Defendants' Amended Memorandum in Opposition to the Petition for Relief. After which, the court would "rule in due course." On January 17, 2003, the two minor plaintiffs filed a Motion for Appointment of Next Friend requesting that the trial court appoint their maternal grandmother as their next friend and an Amended Petition for Relief. The record does not show that the trial court ruled on the motion or the petition.
On April 25, 2003, Appellants filed their notice of appeal.[3] In a Jurisdictional Statement attached to the notice of appeal, Appellants stated that "in excess of ninety (90) days has passed since the date of filing of Plaintiffs' Motion and Petition for Relief filed on January 17, 2003 and the Circuit Court Judge has not entered an Order disposing of the issues raised...." Presumably, Appellants believed that the Petition for Relief had been deemed denied pursuant to Rule 81.05(a). Subsequently, we issued an order to show cause why the appeal should not be dismissed without prejudice for lack of an appealable judgment. No response has been filed.
The Petition for Relief is an independent action filed pursuant to Rule 74.06(b) after the underlying judgment became final[4] and upon which the trial court must enter a separate, appealable judgment. See Yanuzzi v. Director of Revenue, 14 S.W.3d 618, 620 (Mo.App. E.D.1999); see also Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 878 (Mo.App. E.D.2001). As such, the Petition for Relief is not deemed denied after 90 days pursuant to Rule 81.05(a). Accordingly, because the Petition for Relief is still pending in the trial court, no judgment has been entered from which an appeal may be taken. The appeal is dismissed without prejudice.
LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J., concur.
NOTES
[1] All rule references are to Mo. R. Civ. P.2003, unless otherwise indicated.
[2] We do not address the standing issue as we dismiss the appeal on other jurisdictional grounds.
[3] We note that Appellants cannot directly appeal from the November 27, 2001 judgment as the time for appealing that judgment has passed. See Rules 81.04, 81.05, and 81.07.
[4] The November 27, 2001 judgment became final thirty days after its entry. See Rule 81.05(a)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2740661/ | Third District Court of Appeal
State of Florida
Opinion filed October 8, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D12-2605
Lower Tribunal No. 12-366-K
________________
The William W. Zeigler Trust, et al.,
Appellants,
vs.
Cofran Sunday Sunshine Cannon, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr.,
Judge.
Horan, Wallace & Higgins and David Paul Horan (Key West), for
appellants.
Stones & Cardenas and Adele V. Stones (Key West), for appellees.
Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
SHEPHERD, Chief Judge.
This is an appeal from a final judgment construing a Deed Granting
Easement over property in Monroe County. The parties stipulated that their cross-
motions for summary judgment “involve exclusively questions of law, [that] no
genuine issue of material fact is involved, and that the issue before the court is the
construction of the . . . Deed Granting Easement.” The trial court ruled in favor of
appellees. However, the parties overlooked the dispositive question: Did a valid
easement exist in the first place? See Winthrop v. Wadsworth, 42 So. 2d 541,
543-44 (Fla. 1949); One Harbor Fin. Ltd. Co. v. Hymes Props., LLC, 884 So. 2d
1039, 1044 (Fla. 5th DCA 2004); Hensel v. Aurilio, 417 So. 2d 1035, 1037 (Fla.
4th DCA 1982); see also 2 William Blackstone, Commentaries *46-47; 20 Fla. Jur.
2d Easements § 1 (2014)
Accordingly, the judgment below is reversed and the cause remanded for
further proceedings as may be required to determine the issue.
2 | 01-03-2023 | 10-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1587406/ | 944 So. 2d 1256 (2007)
Edward S. LIPTON, Appellant,
v.
FIRST UNION NATIONAL BANK, Appellee.
No. 4D06-175.
District Court of Appeal of Florida, Fourth District.
January 3, 2007.
*1257 Andrew T. Lavin of Navon & Lavin, P.A., Fort Lauderdale, for appellant.
John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, and Morris G. Miller and Amy S. Rubin of Ruden, McClosky, Smith, Schuster & Russell, P.A., West Palm Beach, for appellee.
HAZOURI, J.
Edward S. Lipton entered into an equity line of credit contract with First Union National Bank under which he could borrow up to $3,000,000. Less than a month after the closing, the Bank discovered that Lipton and his businesses had been involved in litigation with the Federal Trade Commission (FTC) and, just prior to the closing, a Stipulated Judgment and Order for Permanent Injunction and Other Equitable Relief was entered into by Lipton and his two businesses with the FTC. This judgment, which had not been revealed to the Bank by Lipton, resulted in the Bank's freezing the loan based upon a provision of the loan agreement which permits the Bank to prohibit additional advances if it "reasonably believe[s] [Lipton] will be unable to fulfill the repayment obligations under this Agreement due to a material change in [Lipton's] financial circumstances."
Upon being notified of the Bank's action, Lipton spoke with a Bank employee, Eddie Jackson, who testified that Lipton told him to close the equity line. Lipton testified that when he told Jackson to "close the line," he was speaking facetiously and did not offer to terminate the equity line. The Bank closed the equity line and sent Lipton a letter confirming their conversation and Lipton's instructions to close the equity line of credit.
As a result, Lipton filed a complaint against the Bank alleging it breached the contract by refusing to perform its obligations under it. The Bank asserted numerous affirmative defenses including misrepresentation by Lipton in obtaining the loan which permitted the Bank to suspend the loan and also estoppel due to Lipton's termination of the loan.
After a six-day non-jury trial, the trial court found that Lipton had made a material misrepresentation to the Bank when he did not disclose the FTC litigation prior to the closing. The evidence showed that the FTC litigation severely affected Lipton's income and "it would lead a reasonable person to conclude that there was a serious problem with Mr. Lipton's ability to possibly pay this loan in the future." The trial court concluded that the Bank was within its right to suspend or even cancel the loan at that point. The trial court also found that Lipton had cancelled the loan in his conversation with Jackson and the Bank followed up with a letter of confirmation.
*1258 On appeal, Lipton asserts that the trial court erred as a matter of law by interpreting the loan agreement to allow the Bank to suspend the loan to conduct an investigation. The loan agreement allowed the Bank to suspend the loan if it "reasonably believe[d]" that Lipton would be unable to repay the loan "due to a material change in his financial circumstances." "The interpretation or construction of a contract that is clear and unambiguous is a matter of law that is reviewed de novo." Caulkins Indiantown Citrus Co. v. Nevins Fruit Co., 831 So. 2d 727, 735 (Fla. 4th DCA 2002). With respect to the factual findings, "[a]s an appellate court, it is not our function to reweigh the evidence but, rather, to view the record to determine if it contains competent and substantial evidence to support the conclusions of the trier of fact." GNB, Inc. v. United Danco Batteries, Inc., 627 So. 2d 492, 493 (Fla. 2d DCA 1993). "Upon appellate review, the findings of the trial court are presumed correct." Citibank, N.A. v. Julien J. Studley, Inc., 580 So. 2d 784, 785 (Fla. 3d DCA 1991).
In Habie v. Krischer, 642 So. 2d 138 (Fla. 4th DCA 1994), this court was asked to determine if a statute was unconstitutionally vague in that it uses the phrase, "reasonably believes." This court held: "Where a statute does not specifically define words of common usage, such words must be given their plain and ordinary meaning." Id. at 140. "Further, as a general rule, the question of `reasonable beliefs' is a factual determination which should be left for the jury." Id.
The trial court found as the trier of fact that at the time the Bank suspended the line of credit, it had found out about the FTC litigation against Lipton and his businesses from which the majority of his income was derived. At that point, the Bank could reasonably believe that any effect the litigation might have on Lipton's income would be substantial and materially affect his financial circumstances. There was substantial competent evidence to support the trial court's findings and no error in its conclusion that the Bank had not breached the contract.
Additionally, as a basis for its decision in favor of the Bank, the trial court found that Lipton had terminated the loan agreement. Lipton argues that as a matter of law the terms of the contract required that any termination by him had to be in writing.
In Visible Difference, Inc. v. Velvet Swing, L.L.C., 862 So. 2d 753 (Fla. 4th DCA 2003), this court held:
This court has previously recognized that the doctrine of waiver holds that "a party may waive a covenant of a contract for whose benefit it is inserted." American Ideal Mgmt., Inc. v. Dale Vill., Inc., 567 So. 2d 497 (Fla. 4th DCA 1990) (citing Gilman v. Butzloff, 155 Fla. 888, 22 So. 2d 263 (1945)). American Ideal Management clarified that "the application of waiver necessitates the finding that the covenant sought to be waived was inserted in the contract for the benefit of the party seeking the waiver." Id. at 501. In American Ideal Management, the court reversed the summary judgment order because the issue of whose benefit the provision was included for was a question of fact.
Visible Difference, 862 So.2d at 755. Because the Bank may waive the provision that the termination must be in writing, the trial court could properly find that Lipton's oral termination was effective.
Affirmed.
GROSS, J., and MAASS, ELIZABETH T., Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587455/ | 33 So.3d 1134 (2009)
Mario BROWN, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-02145-COA.
Court of Appeals of Mississippi.
October 6, 2009.
Rehearing Denied February 16, 2010.
Certiorari Denied May 6, 2010.
*1136 George T. Holmes, Jackson, Phillip Broadhead, Oxford, attorneys for appellant.
Office of the Attorney General by Deirdre McCrory, attorney for appellee.
Before MYERS, P.J., ISHEE and MAXWELL, JJ.
MYERS, P.J., for the Court.
¶ 1. Mario Brown was convicted of manslaughter in the Coahoma County Circuit Court for a shooting that resulted in Sean Cole's death. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). Brown appeals his conviction and sentence arguing the trial court committed three errors: (1) the trial court erred in allowing the State's forensic expert to testify about unreliable, inaccurate, and speculative matters; (2) the trial court erred in refusing Brown's self-defense jury instructions; and (3) the trial court erred in failing to grant Brown's motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On September 8, 2006, a fight occurred outside of Nanny's Food and Games Café (Café) in Friar's Point. The altercation began when Clarence Henderson and Corey Dorrough began exchanging words. According to Brown, two more people were with Dorrough during his exchange with Henderson. At some point during this argument, Brown exited the Café, and seeing his friend Henderson in trouble, punched Dorrough. Cole, who was one of the two people with Dorrough, then punched Brown. Brown testified that when he got up from the punch, he began retreating down the street, but Cole, Dorrough, and possibly a third individual began pursuing Brown with beer bottles in their hands. Brown then pulled his pistol to "intimidate" the group into stopping their pursuit; everyone stopped but Cole. Brown testified that he and Cole then began to fight. Brown testified that he attempted to hit Cole with his pistol, and that Cole attempted to take the pistol from Brown. During the scuffle, the pistol discharged three times. After the pistol fired, Cole ran back toward the Café and around to its side, and according to Brown, Cole did not appear to be shot. Brown ran to the other side of the Café. Brown testified that, while standing on the side of the Café, he saw someone running toward him and he fired his pistol three to five times at this person. Brown then fled the scene with Henderson, who dropped him off at an acquaintance's house. Brown testified that he then learned Cole had died; Brown threw his pistol into a sewage lagoon.[1] Brown turned himself in to police the next morning.
¶ 3. Brown and Henderson provided statements to the Mississippi Bureau of Investigation about the events that occurred. *1137 Brown stated in part: "me and [Cole] were scuffling and I tried to hit him with the gun. The gun went off. The gun went off a few more times.... I saw someone running. I thought it was [Cole] and I shot toward him. I think I shot three times." Henderson's statement provided in part that: "[Brown] started shooting. He was shooting wild.... The gun went off several times. It looked like [Brown] was shooting [Cole].... [Brown] walked down the street beside the building, then was looking to where [Dorrough] ran to. I heard four or five more shots."[2]
¶ 4. A Coahoma County grand jury subsequently indicted Brown for murder. At trial, Steve Chancellor, a crime scene analyst with the Mississippi Bureau of Investigation, testified that he recovered two groups of shell casings from the scene. A group of three shell casings were recovered in front of the Café, and a group of four shell casings were recovered on the side of the Café. All the shell casings were fired from a nine-millimeter pistol. Starks Hathcock, a forensic scientist with the Mississippi Crime Laboratory, testified that all of the shell casings recovered at the Café were fired from the same weapon. However, he could not determine if the projectile recovered from Cole was fired from the same weapon as the shell casings recovered. He testified that it would be virtually impossible to match the casing and the projectiles without the weapon.
¶ 5. Dr. Steven Hayne performed the autopsy on Cole and was admitted at trial as an expert in forensic pathology. He testified that Cole received three gunshot wounds: a bullet graze to the left side of the abdomen, a wound to the upper right chest, and a wound to his abdomen. He concluded that Cole suffered massive blood loss, which substantially contributed his death.
¶ 6. At the conclusion of Brown's trial, the jury found him guilty of manslaughter. The trial court sentenced Brown to serve twenty years in the custody of the MDOC. Brown filed a motion for a new trial or, in the alternative, for a JNOV, which was denied by the trial court. Aggrieved, Brown appeals his conviction and sentence.
DISCUSSION
I. WHETHER THE TRIAL COURT ERRED IN ALLOWING PORTIONS OF DR. HAYNE'S TESTIMONY.
¶ 7. Brown alleges that the trial court permitted Dr. Hayne to testify about matters that were unreliable, inaccurate, and speculative. On direct examination, the prosecution asked Dr. Hayne how Cole was positioned when he was shot. Dr. Hayne stated that given the entry point and trajectory of the bullets, Cole was likely ducking and then leaning away when he was shot in the chest and abdomen, respectively. The prosecution then asked Dr. Hayne how far a person could run with the type of injuries Cole received. He responded that a person could run one hundred to two hundred yards before collapsing.
¶ 8. As the State correctly points out, Brown never objected to these statements made by Dr. Hayne. The "[supreme court] has consistently held that the failure to make a contemporaneous objection constitutes waiver of an issue on appeal." Derouen v. State, 994 So.2d 748, 751 (¶ 7) (Miss.2008). "The trial court will not be held in error on a matter that was never presented for its consideration." Bogan v. State, 754 So.2d 1289, 1294 (¶ 19) *1138 (Miss.Ct.App.2000). Having failed to object to the expert testimony, we find that Brown is procedurally barred from raising this issue on appeal.
¶ 9. Notwithstanding the procedural bar, we find the trial court did not err in allowing Dr. Hayne's testimony. "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence," and "reversal is only proper when such a discretion has been abused and a substantial right of a party has been affected." Flaggs v. State, 999 So.2d 393, 401 (¶ 26) (Miss.Ct.App.2008). "However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence." Id.
¶ 10. "The admissibility of expert testimony is evaluated in light of M.R.E. 702, which holds that such testimony may be introduced when it is found to be relevant and reliable." Id. at (¶ 27) (citation omitted). We have stated that such testimony is relevant if it assists the trier of fact in understanding or determining a fact at issue; Flaggs noted:
To meet the requirement of reliability, an expert's testimony must be based on the methods and procedures of science, and not merely on subjective beliefs or unsupported speculation. Rule 702 expressly allows expert testimony regarding non-scientific matters, so long as the witness's knowledge, skill, experience, training, or education qualify him as an expert in a given field, and (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
Id. at 401-02 (¶ 27) (internal citation and quotations omitted).
¶ 11. Dr. Hayne was admitted as an expert witness in forensic pathology without any objection by Brown. "[I]t is the duty of a forensic pathologist to answer two basic questions: what was the cause of death, and what was the manner of death?" Williams v. State, 937 So.2d 35, 42 (¶ 20) (Miss.Ct.App.2006) (citation omitted). "[A] forensic pathologist may testify as to what caused the victim's injuries and what trauma the injuries would produce." Id. (citation omitted). A forensic pathologist may also testify concerning "the victim's wounds, suffering, and the means of infliction if the injury falls within the bounds of his expertise." Id. at 43 (¶ 20) (citation omitted).
¶ 12. As stated above, Dr. Hayne testified that Cole was likely ducking and then leaning away when he was shot. In Bell v. State, 725 So.2d 836, 853 (¶ 50) (Miss.1998), the supreme court concluded that under Rule 702, an expert in forensic pathology could testify about the position of the victim at the time the fatal wounds were received. The Mississippi appellate courts have continued to allow an expert in forensic pathology to testify about the position of the victim's body when he or she was shot. See Boyd v. State, 977 So.2d 329, 333 (¶¶ 8, 31) (Miss.2008) (victim was in a standing position when shot); Turner v. State, 796 So.2d 998, 1001 (¶ 8) (Miss.2001) (victim was down, "essentially on the ground," and "leaning forward" when the shooting occurred); Conway v. State, 915 So.2d 521, 526 (¶ 21) (Miss.Ct.App.2005) (victim was in a seated and upright position when shot).
¶ 13. It is clear from the above cases that, under Rule 702, an expert qualified in forensic pathology can testify about the position of the victim at the time the fatal wounds were inflicted. Therefore, it was not error for the trial court to allow Dr. Hayne, who was tendered as an expert *1139 in forensic pathology, to testify about the position of Cole when he was shot.
¶ 14. Brown also argues that the trial court erred in allowing Dr. Hayne to testify about the distance a person could run after suffering the type injuries Cole received. Dr. Hayne responded that "a person could possibly run the distance of... 100 yards or even 200 yards with a gunshot wound to the heart, a gunshot wound of this caliber to the heart." Brown also failed to object to this assessment; therefore, he is procedurally barred from raising this issue on appeal. Bogan, 754 So.2d at 1294 (¶ 19). Notwithstanding the procedural bar, we will consider his argument that it was erroneous for the trial court to permit such testimony.
¶ 15. "[W]e first note that the use of hypothetical questioning in order to elicit expert testimony is permissible in Mississippi." Williams, 937 So.2d at 42 (¶ 20). Moreover, as stated above, a forensic pathologist may testify about the trauma an injury can produce, about the victim's wounds, and about the victim's suffering. Id. Our courts have permitted a forensic pathologist to testify about the pain and suffering a victim suffered after being attacked because it was a result of the trauma produced by the incident. See Holland v. State, 705 So.2d 307, 341 (¶ 128) (Miss. 1997) ("victim suffered a fatal heart attack as a result of trauma and stress induced by a beating and robbery"); Booker v. State, 5 So.3d 411, 423 (¶ 32) (Miss.Ct.App. 2008) (victim became unconscious sometime before his death, but during the infliction of the injuries, the victim was "very much aware of what was going on, and in great pain.").
¶ 16. We find the response given by Dr. Hayne was a description of the type pain, trauma, and suffering Cole could have experienced after being shot; thus, it was admissible. His testimony revealed that, hypothetically, Cole could have been shot during the scuffle and still would have been capable of running back to the side of the Café.[3] Dr. Hayne's testimony also provided insight into the types of wounds Cole received and how much pain and suffering he would have experienced after being shot and while he was running to the side of the Café. Dr. Hayne's testimony established that Cole's death would not have been instantaneous, but Cole would have lived a few moments before dying.
¶ 17. We find that the trial court did not abuse its discretion in allowing Dr. Hayne's testimony as Dr. Hayne's testimony about the position Cole was in when he was shot and how far Cole could have run after being shot were within the scope of his expertise as an expert in forensic pathology. Accordingly, this issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING BROWN'S SELF-DEFENSE JURY INSTRUCTIONS.
¶ 18. Brown requested that the trial court grant three self-defense jury instructions. Brown argues there was sufficient evidence to support a self-defense jury instruction; Brown was attacked by Cole and two other individuals, retreated from their attack, and was pursued by Cole who was carrying a beer bottle, at which point Brown pulled his pistol in hopes of thwarting their pursuit and then engaged in a scuffle with Cole, which led to the pistol firing three times. However, the trial court refused Brown's self-defense jury instruction on the ground that it had no evidentiary basis.
*1140 ¶ 19. Our standard of review of the giving or refusal of a jury instruction is well established:
Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
Hearn v. State, 3 So.3d 722, 738 (¶ 45) (Miss.2008) (citations omitted).
¶ 20. In Burnside v. State, 882 So.2d 212, 216 (¶ 21) (Miss.2004), the supreme court ruled that there was insufficient evidence to support a self-defense jury instruction on a charge for simple assault on a sheriff's deputy where the defendant denied hitting or striking the deputy. Similarly, in Dorrough v. State, 812 So.2d 1077, 1081 (¶ 19) (Miss.Ct.App.2001), this Court ruled that the defendant was not entitled to a self-defense jury instruction when he denied having a weapon and inflicting injury on an aggravated assault charge.
¶ 21. Turning to the case at bar, Brown denied the shooting. Brown's defense was not one of self-defense; rather, it was that someone else shot Cole. Brown testified that he did not know who pulled the trigger during the scuffle with Cole when the pistol was fired three times. He testified on direct examination that he did not do the second shooting. The trial court was somewhat perplexed by Brown's self-defense jury instruction request. During the jury instruction conference, the trial court asked Brown's counsel, "Is the defendant saying that he did it, he killed the victim[,] but he killed the victim in self-defense?" Brown's counsel responded: "If I recall, when asked that question on cross[-examination] ... his response was that he really don't [sic] know." The trial court again asked Brown's counsel whether Brown wanted to be heard regarding the self-defense jury instruction. To which, Brown's counsel answered, "no," and withdrew his self-defense instruction request. Brown cannot claim on appeal that the trial court erred when he did not allow the trial court to rule on whether to grant or refuse the jury instruction. Austin v. State, 971 So.2d 1286, 1288 (¶ 8) (Miss.Ct.App.2008).
¶ 22. Procedural bar notwithstanding, we find that Brown's argument on appeal that he was entitled to selfdefense instruction because an evidentiary basis existed which showed that even if he did the killing, it was done in necessary self-defense, fails. Our supreme court has upheld the trial court's denial of a self-defense jury instruction in a murder case as having no evidentiary basis when the defendant's defense was that the shooting was unintentional and accidental. Wadford v. State, 385 So.2d 951, 955 (Miss. 1980). The supreme court clarified that "[t]he legal concept of self-defense in a homicide case is based upon justification of a purposeful killing because it was necessary to kill in order to save the killer from imminent danger of suffering death or grave bodily harm at the hands of the person killed" Id. Similar to the defendant in Wadford, Brown never admitted that he shot Cole in a purposeful manner, thus precluding him from being entitled to a self-defense jury instruction.
¶ 23. Accordingly, the trial court did not err in refusing to grant Brown's self-defense jury instruction for a lack of an evidentiary basis. This issue is without merit.
III. WHETHER THE TRIAL COURT ERRED IN DENYING *1141 BROWN'S MOTION FOR A NEW TRIAL OR, IN THE ALTERNATIVE, FOR A JNOV.
¶ 24. Brown argues the trial court erred in not granting his motion for a new trial or, in the alternative, for a JNOV because the State failed to prove the necessary elements of manslaughter. In appealing the trial court's decision to overrule his motion for a new trial, Brown challenges the weight of the evidence, and by appealing its decision to overrule his motion for a JNOV, Brown challenges the legal sufficiency of the evidence. Dear v. State, 960 So.2d 542, 545-46 (¶¶ 13-14) (Miss.Ct.App.2006). We will address each of Brown's contentions separately.
A. Weight of the Evidence
¶ 25. In Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations omitted), the supreme court outlined our standard of review of the weight of the evidence supporting a jury's verdict as follows:
When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the "thirteenth juror," the court simply disagrees with the jury's resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.
¶ 26. Brown bases his argument on the absence of proof that he shot Cole. Brown argues that no evidence proved that he shot Cole, but there is evidence that someone else fired the fatal shot at Cole. Brown points to his and Henderson's version of the events to support his argument. Both of them stated that: Brown was involved in a scuffle with Cole; the gun fired three times during this scuffle; Cole was not bleeding when he ran off from the scuffle with Brown; and Brown did not fire the second round of shots. To support his argument, Brown cites to the rule enunciated in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933), which held that: "where the defendant or the defendant's witnesses are the only eyewitness to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particularly by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge." Brown argues that because the State did not present any witnesses to rebut his and Henderson's account of what happened, their version of the events must be accepted as the truth.
¶ 27. However, the State correctly points out that Brown is procedurally barred from bringing his Weathersby argument because he did not bring it to the trial court's attention and give the trial court the opportunity to make a ruling. Neese v. State, 993 So.2d 837, 843 (¶ 12) (Miss.Ct.App.2008).
¶ 28. Additionally, weighing the evidence in a light most favorable to the verdict, we find the evidence supports Brown's manslaughter conviction. While Brown and Henderson did provide alternative theories at trial of what occurred that night, their statements, when read aloud in *1142 open court, coupled with their testimonies, established that Brown's gun went off three times while he and Cole were in a scuffle, and after Cole ran around the side of the Café, Brown went to the opposite side of the Café and fired three to five more shots in the direction of Cole. In fact, Henderson testified on direct examination that Brown was standing in the road when the second round of shots were fired, but on cross-examination, Henderson, admitted that he was distracted and not watching Brown the entire time after the scuffle. The State's specialist in firearms identification testified that all the casings recovered by the Mississippi Bureau of Investigations from the scene were fired from the same weapon. Since no other type of casings were recovered at the scene, it is only logical to conclude that the shots that killed Cole were some of the six to eight shots fired by Brown. Therefore, we find that the weight of the evidence supports Brown's manslaughter conviction.
B. Legal Sufficiency of the Evidence
¶ 29. In Bush v. State, 895 So.2d at 843 (¶ 16), the supreme court also reiterated our standard of review as to the legal sufficiency of the evidence as follows:
In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." However, this inquiry does not require a court to
"ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is for the appellate court to reverse and render[, i.e. reverse and discharge]. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999).
¶ 30. Similar to his argument above, Brown argues the State's evidence did not prove that he killed Cole, thus failing to meet the essential element of manslaughter that he killed another human being.
¶ 31. As stated above, there is sufficient evidence to sustain a manslaughter conviction. Brown fired three shots while scuffling with Cole and fired three to five more *1143 shots in the direction of Cole while standing on the side of the Café. The State's firearm's specialist testified that only one gun was fired that night at the Café. One of these six to eight shots resulted in the death of Cole. In viewing the evidence in the light most favorable to the State, we find that the evidence presented at trial was sufficient to uphold Brown manslaughter conviction. Accordingly, this issue is without merit.
¶ 32. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.
KING, C.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. LEE, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
NOTES
[1] Brown's pistol was never recovered by the police.
[2] Brown and Henderson both testified that the statements they made to the police were inaccurate. Brown stated his statement omitted portions he related to the police. Henderson testified he lied to police in his statement to get himself out of trouble.
[3] The prosecution did not tailor the question specifically to the victim, Cole; the prosecution phrased it as "a person . . . receiv[ing] these injuries." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587471/ | 944 So.2d 805 (2006)
Howard McCLURE
v.
CITY OF PINEVILLE.
No. 05-1460.
Court of Appeal of Louisiana, Third Circuit.
December 6, 2006.
*806 Daniel E. Broussard, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, Louisiana, for Plaintiff/Appellee, Mary McClure.
Thomas J. Solari, Attorney at Law, Lake Charles, Louisiana, for Defendant/Appellant, City of Pineville.
Randall B. Keiser, Keiser Law Firm, Alexandria, Louisiana, for Defendant/Appellee, Risk Management, Inc.
Gregory E. Bodin, Russell L. Mosely, Taylor, Porter, Brooks & Phillips, Baton Rouge, Louisiana, for Defendant/Appellant, Louisiana Workers' Compensation Corporation.
Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
SULLIVAN, Judge.
This is a workers' compensation claim under the Heart and Lung Act, La.R.S. 33:2581. The claimant's employer appeals the grant of summary judgment in favor of an insurer which provided workers' compensation coverage for a period of time during the claimant's employment. Another workers' compensation insurer appeals the denial of its motion for new trial of the motion for summary judgment, and the insurer granted summary judgment seeks to have the other insurer's answer to appeal dismissed. For the following reasons, we dismiss the appeal of the denial of the motion for new trial and dismiss that insurer's answer to appeal; the summary judgment is affirmed.[1]
Facts
Howard McClure was employed by the City of Pineville (Pineville) fire department for more than forty years. He retired in May 2000. In February 2003, he was diagnosed with lung cancer; he died as a result of the cancer in July 2003. His widow, Mary McClure, seeks death benefits pursuant to the provisions of the Heart and Lung Act, La.R.S. 33:2581.
Pineville had workers' compensation insurance with Louisiana Municipal Risk Management Association (LMRMA) which was administered through Risk Management, Inc. (hereinafter referred to collectively as RMI) for the period January 1, 1987 through December 31, 1998. Louisiana Workers' Compensation Corporation (LWCC) provided Pineville workers' compensation coverage for the period January 1, 1999 through December 31, 2000. Beginning January 1, 2002, Pineville was self-insured; RMI was the administrator of its claims. On January 1, 2003, Pineville had coverage again with LMRMA/RMI.
After Mrs. McClure sought benefits, RMI filed a disputed claim, seeking a declaratory judgment that it was not responsible for the payment of the benefits she sought. Mrs. McClure filed a Reconventional *807 Demand seeking death benefits from RMI and LWCC. She also sued Pineville.
RMI filed a motion for summary judgment, asserting that all claims against it should be dismissed; the motion was granted. LWCC filed a motion for new trial with regard to the grant of summary judgment in favor of RMI. Pineville filed a motion for new trial and a third party demand against RMI. RMI filed an exception of no cause of action as to Pineville's third party demand. The motions for new trial were denied; the exception was granted. Pineville devolutively appealed the grant of summary judgment in favor of RMI, the grant of RMI's exception of no cause of action, and the denial of its motion for a new trial.
LWCC filed a devolutive appeal of the judgment "dated August 24, 2005," the "Judgment denying its Motion for New Trial." LWCC also filed an "Answer to Appeal" in response to the appeal filed by Pineville, seeking reversal of the judgment which granted summary judgment in favor of RMI "to the extent that [it] seeks to declare that coverage . . . rests with [LWCC]." RMI filed a motion to dismiss LWCC's answer. The motion to dismiss was referred to the merits of this appeal. We address the procedural correctness of LWCC's appeal of the denial of its motion for new trial and its answer to Pineville's appeal before addressing the merits of Pineville's appeal.
LWCC's Appeal of the Denial of Its Motion for New Trial
LWCC appealed the WCJ's denial of its motion for new trial but did not appeal the judgment granting RMI's motion for summary judgment. A judgment denying a motion for new trial is an interlocutory order, not a final appealable judgment. Shavers v. Shavers, 350 So.2d 912 (La.App. 3 Cir.1977). Interlocutory judgments are not appealable, unless expressly provided by law. La.Code Civ.P. art. 2083(C). However, in Fuqua v. Gulf Insurance Co., 525 So.2d 190 (La.App. 3 Cir.1988), writ denied, 546 So.2d 1216 (La.1989), this court held that where the appellant's argument on appeal indicated that he intended to appeal the judgment on the merits, not the judgment denying a motion for new trial, the inadvertence of misstating the judgment being appealed did not necessitate dismissal of the appellant's appeal, and "the appeal should be maintained as being taken from the judgment on the merits." Id. at 191-92, (quoting Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La.App. 1 Cir.1984)).
LWCC specified the date of the judgment being appealed, August 24, 2005, and the title of the judgment being appealed, "the Judgment denying the Motion for New Trial." Furthermore, LWCC has not asserted any argument with regard to inadvertence in its appeal of the judgment denying the motion for new trial. LWCC's actions do not indicate that it simply misstated which judgment it was appealing, and we dismiss ex proprio motu its appeal of the August 24, 2005 judgment denying its motion for new trial. See Shavers, 350 So.2d 912.
LWCC's Answer to Pineville's Appeal
RMI filed a motion to dismiss LWCC's answer to Pinveville's appeal, asserting that LWCC did not have the right to file an answer to Pineville's appeal because it is not an appellee with respect to Pineville's appeal of the judgment which granted summary judgment in favor of RMI. LWCC has not responded to the motion to dismiss. Finding merit in RMI's motion, we grant the motion and dismiss LWCC's answer to Pineville's appeal.
Louisiana Code of Civil Procedure article 2087 (emphasis added) provides in part:
*808 B. When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in Paragraph A of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.
La.Code Civ.P. art. 2133 (emphasis added) provides in pertinent part:
A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. . . . The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. . . .
The relationship between LWCC and Pineville determines whether LWCC is an appellee. La.Code Civ.P. art. 2133(A). In Henley v. Sterling Drugs, Inc., 470 So.2d 647 (La.App. 1 Cir.1985), the court held that a party whose interest is aligned with that of the appellant is not an appellee. Referencing the comments to Article 2087, the court noted that pursuant to Article 2133 an appellee can respond to an appellant. In Henley, the plaintiff sued for damages caused by the defendant's defective product. His insurer intervened to collect monies it had paid him. Judgment was rendered in favor of the defendant. The plaintiff appealed; the insurer did not appeal but answered the plaintiff's appeal. The court explained that the plaintiff/appellant was not an appellant in relation to the insurer because the insurer's interest in the litigation was not adverse to reversal of the judgment. The same is true here: LWCC's interest is not adverse to Pineville's interestthey both seek reversal of the summary judgment.
In Borne v. Mike Persia Chevrolet Co., Inc., 396 So.2d 326 (La.App. 4 Cir.), writ denied, 401 So.2d 976 (La.1981), the court explained that an appellee is one against whom an appeal is taken and, therefore, must have an interest that is adverse to reversal of the judgment. See La.Code Civ.P. art. 2133. This explanation makes it clear that LWCC is not an appellee, as judgment was not rendered against it, no appeal was taken against it, and its interest is served by, as opposed to being adverse to, having the judgment reversed. The motion to strike is granted.
Motion for Summary Judgment
A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action." La.Code Civ.P. art. 966(A)(2).
The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party's claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.
*809 Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). "A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of a legal dispute." Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.
In its motion for summary judgment, RMI asserted that there was no genuine issue of material fact that it did not have coverage in effect at the time of Mr. McClure's retirement in May, 2000 and, therefore, it was not obligated for Mrs. McClure's claim for death benefits. RMI claimed that the carrier who had coverage in effect at the time of Mr. McClure's retirement was obligated for payment of the death benefits sought.
Mrs. McClure's claims are based on the Heart and Lung Act, La.R.S. 33:2581, which provides:
Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.
RMI supported its motion with an affidavit by an RMI employee who attested that there was no coverage in effect between LMRMA and Pineville at the time Mr. McClure retired, that there was not coverage when Mr. McClure died, and that "upon information and belief" LWCC had coverage in effect in 1999, 2000, and 2001. RMI also submitted answers to interrogatories by LWCC and Mrs. McClure in support of the motion to establish that neither party asserted that LRMRA provided workers' compensation coverage at the time Mr. McClure retired.
At the hearing on RMI's motion, Pineville introduced an affidavit which detailed its workers' compensation coverage for the period beginning January 1, 1987. The affidavit reflected that Pineville had workers' compensation coverage with RMI for the period January 1, 1987 through December 31, 1998.
RMI argued that it was not responsible for Mrs. McClure's claim for death benefits pursuant to the last injurious exposure rule, as pronounced in Gales v. Gold Bond Building Products, 493 So.2d 611 (La.1986), and Beason v. Red Ball Oxygen Co., 29,894 (La.App. 2 Cir. 10/29/97), 702 So.2d 26. In Gales, the supreme court adopted the last injurious exposure rule, as opposed to apportioning fault among all employers and their insurers whose employment contributed to a workers' compensation claimant's occupational disease, explaining:
The last injurious exposure rule avoids most of the problems of the apportionment [among employers] solution and because of this promotes efficient *810 administration, speedy payment of claims, and, in most instances, provides the highest level of benefits for the claimant. . . . [W]e conclude that, as between the successive employers themselves, the solution of assigning liability according to the last injurious exposure most effectively furthers the principles and goals of workers' compensation laws.
Id. at 617 (citation omitted).
Beason applied the same principle to workers' compensation insurers' liability. The claimant in Beason sought benefits for his occupational disease. He sued his employer and an insurer that provided workers' compensation coverage for a period of time during his employment. He claimed that each insurer which provided workers' compensation coverage during the time of his "injurious exposure" was solidarily liable for his claim. The defendant insurer's policy contained a provision which limited the insurer's liability for occupational disability claims to claims where the claimant's "last exposure" to the condition which caused his disability occurred during the insurer's policy period. The court observed that the insurance contract "constitutes the law between the parties and is enforced as written if the policy terms express the intent of the parties," and held that the insurer sued was not liable for the claim, as the claimant's last performance of repetitive arm, hand, and wrist movements, which contributed to his occupational disease, did not occur during the insurer's policy period. Id. at 28.
The occupational disease provision of the Workers' Compensation Act, La.R.S. 23:1031.1, gave rise to the last injurious exposure rule. See Gales, 493 So.2d 611. The occupational disease provision entitles employees disabled by occupational diseases to compensation as if they were injured in accidents in the course and scope of their employment. La.R.S. 23:1031.1(A).
The WCJ concluded that the language of the Heart and Lung Act rendered evidence of last injurious exposure irrelevant. The WCJ reasoned that, because the Heart and Lung Act does not require a fireman to establish any type of injurious exposure, LWCC knew or should have known when it issued its policies to Pineville that it would be responsible for any workers' compensation claims made under the Heart and Lung Act by firemen who retired during its coverage period.
The Heart and Lung Act confers on firemen "all rights and benefits" afforded a claimant suffering from an occupational disease; however, it does not track the language of the occupational disease provision. La.R.S. 23:1031.1. Section B of the latter provision requires that occupational diseases be "due to causes and conditions characteristic of and peculiar to the . . . employment in which the employee is exposed to such disease." The Heart and Lung Act does not contain such a requirement. Instead, it classifies heart and lung ailments as being "connected with employment." La.R.S. 33:2581. This distinction was noted in Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4 Cir.1975), writ denied, 329 So.2d 760 (La.1976), and led the court to conclude that the jurisprudence interpreting La.R.S. 23:1031.1 is not directly applicable to the Heart and Lung Act.
The Heart and Lung Act significantly simplifies a fireman's burden of proof in an occupational disease claim, especially a fireman who has been employed for more than five years. Requiring firemen to comply with the last injurious exposure rule imposes a burden of proof that the Heart and Lung Act does not, and imposition of such a requirement would hinder its principles and goals. For these reasons, *811 we find no error with the WCJ's interpretation of the Heart and Lung Act, as it pertains to firemen who have been employed by the same employer for more than five years.
We do not believe this holding is in derogation of Beason, which held that policy provisions must be upheld if they "express the intent of the parties." The last exposure provision of LWCC's policy tracks the language of La.R.S. 23:1031.1 and jurisprudence interpreting it. The Heart and Lung Act does not track the language of the La.R.S. 23:1031.1 and, consequently, jurisprudence interpreting it is not necessarily pertinent to application of the Heart and Lung Act. See Vincent, 326 So.2d 401. Undoubtedly, Pineville intended to purchase a policy which would satisfy all workers' compensation claims asserted against it. The Heart and Lung Act does not require evidence of injurious exposure; therefore, it is reasonable to conclude that Pineville did not intend to purchase a policy which required such evidence.
Disposition
The judgment of the WCJ is affirmed. All costs associated with filings made by Pineville and RMI's responses to those filings are assessed to Pineville. All costs associated with filings made by LWCC and RMI's responses to those filings are assessed to LWCC.
APPEAL OF DENIAL OF MOTION FOR NEW TRIAL DISMISSED; MOTION TO DISMISS ANSWER TO APPEAL GRANTED; SUMMARY JUDGMENT AFFIRMED.
NOTES
[1] A trial on the merits was held after summary judgment was granted in favor of RMI. Appeals pertinent to the judgment on the merits are the subject of a separate appeal. See McClure v. City of Pineville, 06-279 (La.App. 3 Cir. 12/6/06), 944 So.2d 795, 2006 WL 3498300. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587526/ | 944 So.2d 1197 (2006)
C.W., the father, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
No. 3D06-143.
District Court of Appeal of Florida, Third District.
December 20, 2006.
*1198 Marc Anthony Douthit, Miami, for appellant.
Karla Perkins, Miami, Department of Children and Family Services, for appellee.
Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
SUAREZ, J.
C.W. (the "father") appeals the order adjudicating his daughter (the "child") dependent. We reverse.
The father argues that the adjudication of dependency must be reversed because there is no competent substantial evidence that the child is at substantial risk of imminent harm. We agree.
The father and mother[1] lived with the father's ten-year-old niece and the child, their own infant daughter. The niece was removed from the home when the police discovered that the mother subjected her to severe corporal punishment which left scars on her body. The Department of Children and Family Services ("DCF") initially left the child at issue with the parents because there was no evidence that she had been abused. After an adjudicatory hearing, the court found that the father had failed to protect his niece from severe physical abuse at his wife's hands. The court found that the child was at substantial risk of imminent abuse due to the father's failure to protect the niece from the wife's excessive corporal punishments and declared the child dependent. This appeal by the father followed.
A child who is "dependent" is one who has been abused, abandoned, or neglected, or who is found by a court "[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians." § 39.01(14)(f), Fla. Stat. (2006). Children who have not been abused may still be found to be at substantial risk of imminent abuse and declared dependant by a court due to abuse inflicted upon a sibling. See In re M.F., 770 So.2d 1189, 1194 (Fla.2000). However, for the court to make such a finding, the evidence must demonstrate a *1199 nexus between the abuse of one sibling and the prospective abuse to another sibling:
Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.
G.R. v. Dep't of Children & Family Servs., 937 So.2d 1257, 1262-63 (Fla. 2d DCA 2006); see, e.g., O.S. v. Dep't of Children & Families, 821 So.2d 1145 (Fla. 4th DCA 2002).[2]
In the instant case, there is no evidence in the record to establish the required nexus between the father's failure to protect his niece from the mother's abuse, and a substantial risk of imminent harm to the child. DCF presented no evidence that the father suffered from any mental or emotional condition, drug addiction, or any other mental or emotional problem which would make it highly probable that in the future he would abuse or neglect the child. The father was not accused of directly abusing his niece, and there was no allegation that either parent had abused the child. Although there was some evidence that the father eventually found out that the mother had hit the niece, he was never accused of inappropriately disciplining her himself. Such evidence, without the required nexus, is simply too tenuous and speculative to support an adjudication of dependency based on prospective abuse. See C.M. v. Dep't of Children & Family Servs., 844 So.2d 765 (Fla. 2d DCA 2003) (insufficient nexus between evidence that father physically abused his stepchildren, and prospective abuse of his natural children, where there was no evidence that the father had a psychological or substance abuse problem that would cause him to act uncontrollably, and he had never harmed his biological children); J.B.P.F. v. Dep't of Children & Families, 837 So.2d 1108 (Fla. 4th DCA 2003) (insufficient nexus between evidence that mother and her boyfriend handcuffed older son and poured a bottle of hot sauce in his mouth, and risk of prospective abuse of younger daughter with no discipline problems); D.H. v. Dep't of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000) (insufficient nexus between father's single act of kicking stepdaughter in the head, and imminent abuse of natural daughter); Eddy v. Dep't of Children & Family Servs., 704 So.2d 734 (Fla. 5th DCA 1998) (insufficient nexus between father's prior sexual abuse of his nephews, and prospective sexual abuse of his natural female child).
The adjudication of dependency as to the father is therefore reversed.
Reversed.
NOTES
[1] The mother is not a party to this appeal.
[2] A trial court's adjudication of dependency is affirmed on review if it applies the correct law and its factual findings are supported by competent substantial evidence. G.R., 937 So.2d at 1260. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587542/ | 944 So.2d 79 (2006)
Timothy L. FULKS, Appellant
v.
STATE of Mississippi, Appellee.
No. 2004-KA-01673-COA.
Court of Appeals of Mississippi.
May 2, 2006.
Rehearing Denied September 12, 2006.
Certiorari Denied December 7, 2006.
*81 Mark Andrew Cliett, West Point, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
MYERS, P.J., for the Court.
¶ 1. Timothy L. Fulks was found guilty of transfer of a controlled substance in the Circuit Court of Clay County. Fulks was sentenced as a habitual offender which imposed a sentence of sixty years not to be reduced, suspended or eligible for probation or parole, in the custody of the Mississippi Department of Corrections, in accordance with Miss.Code Ann. § 41-29-147(Rev. 2004). Fulks was also fined two million dollars. Aggrieved by the ruling of the trial court, Fulks appeals raising the following five issues:
I. WHETHER OR NOT THE VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE SUBSTANTIVE EVIDENCE PRODUCED AT TRIAL.
II. WHETHER OR NOT THE COURT ERRED IN ALLOWING THE SUBSTANCE ALLEGED TO BE CRACK COCAINE TO BE ENTERED INTO EVIDENCE WITHOUT THE PROPER CHAIN OF CUSTODY HAVING BEEN ESTABLISHED.
III. WHETHER OR NOT THE REPRESENTATION OF FULKS BY HIS ATTORNEY OF RECORD AT THE TRIAL OF THIS MATTER WAS INEFFECTIVE.
IV. WHETHER OR NOT THE SENTENCE IMPOSED BY THE TRIAL COURT OF SIXTY YEARS WITHOUT THE POSSIBILITY OF PAROLE IS UNCONSTITUTIONALLY DISPROPORTIONATE AND EXCESSIVE IN VIEW OF FULKS' CONVICTION FOR SALE OF A SINGLE ROCK OF COCAINE.
V. WHETHER OR NOT THE CUMULATIVE EFFECT OF THE ERRORS AT TRIAL DENIED THIS DEFENDANT A FUNDAMENTALLY FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.
FACTS
¶ 2. Roosevelt Purnell, a confidential informant working with the Mississippi Bureau of Narcotics, was wired with a video camera when he purchased crack cocaine from Fulks on July 10, 2002. Fulks was *82 indicted for the sale of a controlled substance. During the first trial, Purnell testified against Fulks. Fulks's attorney was allowed to cross-examine Purnell thoroughly. Fulks's first trial resulted in a mistrial as a result of a hung jury. Before the second trial began, Purnell died; therefore, he was unavailable to testify. Purnell's testimony from the first trial's transcript was read into evidence during the second trial. The second trial in July of 2004 resulted in Fulks being found guilty of the sale of a controlled substance and being sentenced as a habitual offender to serve sixty years in the custody of the Mississippi Department of Corrections and to pay two million dollars in fines.
I. WHETHER OR NOT THE VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE SUBSTANTIVE EVIDENCE PRODUCED AT TRIAL.
¶ 3. Fulks argues that his guilty verdict was contrary to the evidence produced at trial. Fulks asserts that his entire case turned upon the credibility of the confidential informant, Roosevelt Purnell. Fulks argues that Purnell's testimony from the previous trial should not have been allowed into evidence, because Fulks was not able to cross-examine Purnell and the jury was unable to observe Purnell's demeanor.
¶ 4. When evaluating a motion for new trial we view the evidence in the light most favorable to the verdict and will only grant a new trial in exceptional cases where the evidence preponderates heavily against the verdict. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The verdict will stand unless by allowing this would sanction an unconstitutional injustice. Id. Fulks's assertion is essentially regarding the admittance of Purnell's testimony into evidence. Therefore, the trial judge possesses a great deal of discretion as to the relevancy and admissibility of evidence. Farmer v. State, 770 So.2d 953, 958 (¶ 14) (Miss.2000). This Court will not reverse the judge's ruling unless he abuses his discretion so as to be prejudicial to the accused. Id.
¶ 5. Rule 804(a)(4) of the Mississippi Rules of Evidence permits hearsay into evidence when the declarant is unavailable because of death. Rule 804(b)(1) goes further to state that former testimony of the unavailable witness may be read into evidence when that witness had been previously cross-examined. The prosecution has the burden of demonstrating that the witness is unavailable. Ohio v. Roberts, 448 U.S. 56, 74-74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The State presented Shane Lamkin from the Mississippi Bureau of Narcotics to testify regarding the death of Purnell. The United States Supreme Court articulated a two-prong test in determining the admissibility of an unavailable witness; first, the prosecution must establish the declarant as unavailable, and second, once the first is established the statement must be accompanied by "idicia of reliablility." Id. at 65, 100 S.Ct. 2531. (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972)). Purnell testified during the first trial where he was thoroughly cross-examined by Fulks's attorney. When the transcript of prior testimony of an unavailable witness reflects extensive cross-examination, the former testimony is admitted. De La Beckwith v. State, 707 So.2d 547, 604 (¶ 233) (Miss.1997). The judge did not abuse his discretion in allowing this evidence under this hearsay exception.
II. WHETHER OR NOT THE COURT ERRED IN ALLOWING THE SUBSTANCE ALLEGED TO BE CRACK COCAINE TO BE ENTERED *83 INTO EVIDENCE WITHOUT THE PROPER CHAIN OF CUSTODY HAVING BEEN ESTABLISHED.
¶ 6. Fulks argues that the trial court erred in allowing the crack cocaine to be admitted into evidence, because Purnell was not there to testify to the chain of custody. However, Purnell's testimony from the previous trial was read into evidence, and Fulks was allowed to fully cross-examine him.
¶ 7. The standard of review of admission of evidence is abuse of discretion. Robinson v. State, 758 So.2d 480, 488 (¶ 31) (Miss.Ct.App.2000). The judge is empowered to determine which evidence is admissible and unless his discretion is abused and has a prejudicial effect on the accused, then the ruling of the lower court is affirmed. Francis v. State, 791 So.2d 904, 907 (¶ 7) (Miss.Ct.App.2001).
¶ 8. The proper test to determine whether or not there has been a showing of the proper chain of custody of the evidence is whether there is a reasonable inference of likely tampering with the evidence. Williams v. State, 794 So.2d 181, 184 (¶ 10) (Miss.2001). The State must satisfy the trial court that there is no reasonable inference of tampering with evidence, but this state's law has never required the proponent of the evidence to produce every handler in order to prove chain of custody. Butler v. State, 592 So.2d 983, 985 (Miss.1991). However, Fulks has the burden of producing evidence that the chain of custody has been broken. Hemphill v. State, 566 So.2d 207, 208 (Miss.1990). Fulks asserts that since Purnell is not present to testify then the chain of custody is not satisfied, but Purnell's testimony from the first trial was read into evidence along with the cross-examination by Fulks's attorney. Fulks has failed to prove a break in the chain of custody in this case, which requires more than mere possibilities. Spann v. State, 771 So.2d 883, 894 (¶ 26) (Miss.2000).
III. WHETHER OR NOT THE REPRESENTATION OF FULKS BY HIS ATTORNEY OF RECORD AT THE TRIAL OF THIS MATTER WAS INEFFECTIVE.
¶ 9. In order to prove ineffective assistance of counsel, Fulks must prove by a preponderance of the evidence that (1) counsel's performance was defective, and (2) the defect was so prejudicial that it prevented Fulks from receiving a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). The proper standard that is required to show prejudice requires Fulks to prove that there is a reasonable probability that, but for counsel's errors, the trial court's result would have been different. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. In order to successfully claim ineffective assistance of counsel, the defendant must meet the two-pronged test set forth in Strickland. Id. at 687, 104 S.Ct. 2052. The Strickland test requires a showing of (1) a deficiency of counsel's performance (2) sufficient to constitute prejudice to the defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The burden is on Fulks to prove both prongs of the test. Id.
¶ 10. Fulks argues that his attorney failing to renew his motion for directed verdict at the close of all the evidence resulted in ineffective assistance of counsel. However, it was not ineffective assistance of counsel for Fulks's attorney to fail to move the trial court for a directed verdict at the close of all the evidence, because Fulks's attorney did file a post-trial motion for JNOV or, in the alternative, for a new trial. Simon v. State, 857 So.2d 668, 689 (¶ 56) (Miss.2003).
*84 ¶ 11. Fulks has failed to meet the two-prong test set out in Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Fulks has the burden of proof for the first prong and "there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Id. at 689, 104 S.Ct. 2052. Fulks still has the burden of proof under the second prong even if counsel's conduct is "professionally unreasonable," and the judgment still stands "if the error had no effect on the judgment." Id. at 691, 104 S.Ct. 2052. Fulks has not met this heavy burden by showing any evidence that results in a deficiency in counsel's performance and that is sufficient to prejudice the defense. Id. Fulks was entitled to a fair trial, not a perfect one, nor was he entitled to a constitutionally errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). This issue is without merit.
¶ 12. Although we find Fulks's issue regarding ineffective assistance of counsel to be meritless, we are mindful of the Mississippi Supreme Court's ruling in Read v. State. 430 So.2d 832, 841 (Miss.1983). This procedure requires us to do the following:
[C]onduct a thorough review of the record to see whether a determination can be made from the record that counsel's performance was constitutionally substandard. "Assuming that the Court is unable to conclude from the record that defendant's trial counsel was constitutionally ineffective," the court is directed to consider any other issues raised in the appeal and, assuming no reversible error is found among them, to affirm "without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction relief proceedings."
Wash v. State, 807 So.2d 452, 461 (¶ 34) (Miss.Ct.App.2001) (quoting Read, 430 So.2d at 841). We have also held in this regard:
We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999). If the issue is not examined because of the state of the record, and assuming the conviction is affirmed, the defendant may raise the ineffective assistance of counsel issue in post-conviction relief proceedings. Read, 430 So.2d at 841.
Pittman v. State, 836 So.2d 779, 787 (¶ 39) (Miss.Ct.App.2002).
Since the record was not clear in order to determine whether Fulks's counsel was deficient, this issue is affirmed without prejudice so that Fulks may pursue this matter under the post-conviction relief statute.
IV. WHETHER OR NOT THE SENTENCE IMPOSED BY THE TRIAL COURT OF SIXTY YEARS WITHOUT THE POSSIBILITY OF PAROLE IS UNCONSTITUTIONALLY DISPROPORTIONATE AND EXCESSIVE IN VIEW OF FULKS' CONVICTION FOR SALE OF A SINGLE ROCK OF COCAINE.
¶ 13. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Nichols v. State, 826 So.2d 1288, 1290 (¶ 10) (Miss.2002). A sentence that does not exceed the maximum term set by statute cannot be disturbed upon appeal. Fleming v. State, 604 So.2d 280, 302 (Miss.1992).
*85 ¶ 14. Fulks made no objection to his sentence in the trial court, and objections to sentence cannot be made initially on appeal. Peterson v. State, 740 So.2d 940, 950 (¶ 30) (Miss.Ct.App.1999). Since Fulks did not object to his sentence as being unconstitutional in the trial court, he is procedurally barred from raising this allegation on appeal. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988); Billiot v. State, 454 So.2d 445, 455 (Miss.1984); Taylor v. State, 452 So.2d 441, 450 (Miss.1984).
¶ 15. Regardless of the procedural bar, Fulks was sentenced under Mississippi Code Annotated § 41-29-139(b)(1) (Rev. 2005) which states:
In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of marihuana, and except a first offender as defined in section 41-29-149(e) who violates subsection (a) of this section with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana, such person may upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00) or both.
¶ 16. Cocaine is a Schedule II controlled substance under Mississippi Code Annotated. § 41-29-115(a). Fulks had two previous felonies, one for burglary of a building and the other for the sale of cocaine. Therefore, Fulks was sentenced as a habitual offender in accordance with Mississippi Code Annotated § 41-29-147 and § 99-19-81. Therefore, the trial court sentenced Fulks to sixty years to serve in the custody of the Mississippi Department of Corrections and a two million dollar fine.
¶ 17. The supreme court has held that a sentence which does not exceed statutory limits is not cruel or unusual punishment. Baker v. State, 394 So.2d 1376, 1378 (Miss.1981). In Stromas v. State, the Mississippi Supreme Court has ruled that "[d]rug offenses are very serious and the public has expressed grave concern with the drug problem. The legislature has responded in kind with stiff penalties for drug offenders. It is the legislatures prerogative and not this Court's to set the length of sentences." Stromas v. State, 618 So.2d 116, 123 (Miss.1993).
¶ 18. When the trial judge imposes a sentence within the statutory guideline, the sentence will generally be upheld and will not be thought to invoke the Eighth Amendment right against cruel and unusual punishment. Peterson v. State, 740 So.2d 940, 950 (¶ 31) (Miss.Ct.App.1999).
V. WHETHER OR NOT THE CUMULATIVE EFFECT OF THE ERRORS AT TRIAL DENIED THIS DEFENDANT A FUNDAMENTALLY FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.
¶ 19. Fulks argues cumulative errors by the trial court denied him a fair trial. We have found no errors occurred in this case. Where there is no error as to any part, there can be no reversible error as a whole. See McFee v. State, 511 So.2d 130, 136 (Miss.1987).
¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF SIXTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF TWO MILLION DOLLARS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.
*86 KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736554/ | 519 So. 2d 146 (1988)
Richard SIDER
v.
ROBIN TEMPORARY SERVICE, et al.
No. 88-C-0156.
Supreme Court of Louisiana.
February 12, 1988.
*147 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587589/ | 783 N.W.2d 571 (2010)
In the Matter of QWEST'S PERFORMANCE ASSURANCE PLAN.
In the Matter of Qwest's Wholesale Quality Standards.
No. A09-1493.
Court of Appeals of Minnesota.
June 8, 2010.
*573 Karen Finstad Hammel, Assistant Attorney General, St. Paul, MN, for relator Minnesota Department of Commerce.
Jeanne M. Cochran, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Public Utilities Commission.
Considered and decided by SCHELLHAS, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
OPINION
SCHELLHAS, Judge.
Relator Minnesota Department of Commerce challenges respondent Minnesota Public Utilities Commission's decision regarding the disposition of the balance remaining in the Tier 2 Special Fund under Qwest's Performance Assurance Plan. Relator argues that respondent's decision to distribute the money to K-12 schools in the form of telecommunications grants contravenes Minn.Stat. § 16A.151, which relator argues requires respondent to deposit the balance of money into the state's general fund. We affirm.
FACTS
The issues in this appeal stem from the relationship between Qwest and competitive local exchange carriers (CLECs) in Minnesota. Congress provided a framework for this relationship in the Telecommunications Act of 1996, 47 U.S.C. §§ 151-615b (2006) (the 1996 Act or the Act). The supreme court has explained the Act as follows:
Congress passed the 1996 Act in an effort to foster competition in telecommunications markets, including local telephone markets. Until the 1996 Act was passed, states had the power to grant exclusive franchises to incumbent carriers, thereby creating a monopoly in each local telephone service area. The Act ended the long-standing state-sanctioned monopolies and fundamentally restructured local telecommunications markets. The Act's purpose is to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." Telecommunications Act of 1996, Pub.L. No. 104-104, purpose statement, 110 Stat. 56, 56 (1996). Because of the high cost of building a new telecommunications network infrastructure, the Act requires incumbent carriers, who own the existing infrastructure, to enter into agreements with CLECs that allow the CLECs to interconnect with the incumbents' existing networks and to purchase or lease telecommunications services and facilities at wholesale rates for resale to the CLECs' customers. 47 U.S.C. § 251(c)(2) (2000).
In re Qwest's Wholesale Serv. Quality Standards, 702 N.W.2d 246, 248-49 (Minn. 2005) (Qwest's WSQ Standards).
The Act also provides that any Bell operating company, including Qwest as successor to U.S. West Communications Co., is barred from providing interLATA (long-distance) service originating from the regions in which it is the incumbent carrier without the approval of the Federal Communications Commission (FCC). 47 U.S.C. §§ 153(4), (21), 271(a), (b); Qwest's WSQ Standards, 702 N.W.2d at 249. In order to approve such an application, the FCC must find that "the requested authorization is consistent with the public interest, convenience, and necessity," and that the Bell operating company is offering access and interconnection to its network for CLECs, including compliance with a 14-point "competitive checklist." 47 U.S.C. *574 § 271(c), (d)(3). In evaluating section-271 applications, the FCC relies on Performance Assurance Plans (PAPs), which are developed collaboratively by the Bell operating companies, CLECs, and state regulatory bodies such as respondent, "to ensure the nondiscriminatory provision of wholesale local exchange services." Qwest's WSQ Standards, 702 N.W.2d at 249. While the FCC does not require a mechanism such as a PAP as a condition of section-271 approval, it "strongly encourages" such mechanisms, which are "probative evidence" that the applicant "will continue to meet its section 271 obligations and that its entry would be consistent with the public interest." In re Application by Bell Atl. N.Y. for Authorization under Section 271 of the Commc'ns Act to Provide In-region, InterLATA Serv. in the State of N.Y., 15 F.C.C.R. 3953, 4164-65 (1999) (Bell Atl. N.Y.).
The Act requires the FCC to consult with the communications regulatory commission of the state that is the subject of a section 271 application to verify that the Bell operating company is meeting the prerequisites for approval. 47 U.S.C. § 271(d)(2)(B). Though U.S. West, as predecessor to Qwest, had not yet applied to the FCC to enter the long-distance market, on October 31, 1996, respondent initiated a proceeding to "develop the record it will need to discharge its responsibilities under § 271." Respondent ordered Qwest to file its proposed PAP with respondent for consideration in relation to respondent's section 271-compliance review. Qwest did so, and respondent considered Qwest's PAP as well as two other proposed PAPs before approving a PAP for Minnesota (the MPAP) on July 29, 2002. Qwest filed its application to provide long-distance service with the FCC on March 28, 2003, and the FCC approved the application on June 25, 2003, in reliance on the MPAP, among other things. In re Application by Qwest Commc'ns Int'l., Inc., for Authorization to Provide In-Region, InterLATA Servs. in Minn., 18 F.C.C.R. 13323, 13360 (2003) (stating that "the PAP that will be in place in Minnesota provides assurance that the local market will remain open after Qwest receives section 271 authorization in this state").
The MPAP helps to foster competition by requiring Qwest to maintain a certain level of parity between the quality of service it provides to its competitors and the quality of service it provides for its own retail operations. The MPAP coexists with the Wholesale Service Quality (WSQ) rules, which provide fixed performance goals with which Qwest must comply, rather than the "parity standard" provided by the MPAP. CLECs may opt into the MPAP, rather than the WSQ standards, when making an interconnection agreement with Qwest. The MPAP provides that "[i]n electing the MPAP, CLEC shall surrender any rights to remedies under [the WSQ] rules (in that regard, this MPAP shall constitute an `agreement of the parties' to opt out of those rules)." By its own terms, the MPAP is a voluntary agreement between Qwest and a contracting CLEC that elects to include the MPAP in its interconnection agreement.
When Qwest fails to provide wholesale service that meets the relevant standards to a competitor that has adopted the MPAP into its interconnection agreement, the MPAP provides self-executing remedies by directing Qwest to make two types of payments. Tier 1 payments go directly to the CLEC that is harmed by Qwest's noncompliance. Tier 2 payments go into the Tier 2 Special Fund, which is used for administration of the MPAP including paying a technical advisor or consultant, audits of Qwest's performance measurement and reporting, and other administrative expenses. Even if a particular CLEC *575 does not opt into the MPAP, "Qwest shall be responsible for making payments to the Tier 2 Special Fund ... for the wholesale performance provided to that CLEC." The MPAP provides that respondent shall determine how to use any balance remaining in the Tier 2 Special Fund after paying for administration. The MPAP requires that the uses selected by respondent "be competitively neutral efforts in the telecommunications field that do not benefit Qwest directly."
The MPAP provides a dispute-resolution process under which disputes are initially heard by an administrative-law judge (ALJ) to be paid from the Tier 2 Special Fund, with a right to appeal to respondent, followed by an appeal "to federal court under the standard in the Federal Arbitration Act."
The MPAP vests respondent with authority to make modifications to its terms after a review process on a semiannual basis. Any disputed issues that arise in the process of such a review are subject to "a proceeding" if "applicable and appropriate." But the MPAP also states that "[n]othing in this MPAP precludes [respondent] from modifying the MPAP based upon its independent state law authority, subject to judicial challenge."
On February 14, 2008, respondent issued an order requesting comments on the disposition of the balance of money in the Tier 2 Special Fund. Qwest suggested that respondent distribute the balance "for telecommunications purposes to K-12 educational institutions throughout the state via a grant process." According to Qwest, the Tier 2 Special Fund contained "upwards of $2 million dollars ... that could be used to benefit students throughout the state." Relator opposed Qwest's suggestion, arguing that Minn.Stat. § 16A.151 required that the balance of money be deposited in the state general fund. After requesting and considering further legal analysis and comment on the issue, on April 21, 2009, respondent issued an order authorizing disposition of the funds consistent with Qwest's suggestion. Respondent denied relator's petition for reconsideration, and this appeal follows.
ISSUES
I. Did respondent err by concluding that Minn.Stat. § 16A.151 did not require that the balance of the Tier 2 Special Fund be deposited in the state general fund?
II. Was respondent's decision a departure from its precedent and, if so, was its departure arbitrary and capricious?
ANALYSIS
Relator argues for reversal of respondent's decision to authorize the distribution of the balance of money in the Tier 2 Special Fund to K-12 schools through a grant program. On review of a decision of the Minnesota Public Utilities Commission, this court may affirm the decision; remand the case for further proceedings; or reverse or modify the decision if the substantial rights of the relator may have been prejudiced because the commission's findings, inferences, conclusion, or decision are, among other things, in excess of the commission's statutory authority, affected by error of law, or arbitrary and capricious. Minn.Stat. §§ 14.69, 216B.52, subd. 1 (2008).
I. Minn.Stat. § 16A.151
Relator argues that under Minn. Stat. § 16A.151, the balance of money in the Tier 2 Special Fund must be deposited in the state's general fund. Resolution of this issue turns on the meaning of the words in the statute, which presents a question of law that we review de novo. *576 St. Otto's Home v. Minn. Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989).
Section 16A.151 provides that "[m]oney recovered by a state official in litigation or in settlement of a matter that could have resulted in litigation is state money and must be deposited in the general fund." Minn.Stat. § 16A.151, subd. 1(c). For the purposes of section 16A.151, "`litigation' includes civil, criminal, and administrative actions; ... `money recovered' includes actual damages, punitive or exemplary damages, statutory damages, and civil and criminal penalties; and ... `state official' means the attorney general, another constitutional officer, an agency, or an agency employee, acting in official capacity." Id., subd. 3. An exception applies when "a state official litigates or settles a matter on behalf of specific injured persons or entities," in which case the official may distribute the money to those specific injured persons or entities. Id., subd. 2(a).
In its decision, respondent concluded that section 16A.151 did not apply because "the MPAP's Tier 2 Special Fund did not result from litigation by state officials, or the settlement of such litigation." Respondent noted that "the MPAP arose in the context of Qwest's anticipated § 271 petition to the FCC," that Qwest's decision to file the MPAP was voluntary, and that respondent's role was merely to provide comments to the FCC with respect to Qwest's application. The order states, "Because the MPAP did not arise from any legal duty owed to the state, the proceeds of the Tier 2 Special Fund could not have resulted from litigation for breach of such a duty, or in settlement of such litigation."
Relator first argues that respondent's decision was incorrect because the MPAP has already been the subject of litigation within section 16A.151's definition and has the potential to be the subject of future litigation. Relator notes that respondent initiated a proceeding to establish WSQ standards in 2000, and that proceeding included consideration of Qwest's proposed PAP, which Qwest wanted respondent to adopt as the state's permanent WSQ plan. Relator argues that "[t]here remains the potential for future litigation challenging any MPUC decision that makes modifications to the plan," and that "since the MPAP both is an alternative to the WSQ standards and an agreement which the MPUC has stated that it has the authority to modify, there is potential for additional litigation of the MPAP."
Relator also argues that resolution of the MPAP proceeding, with modifications agreed to by Qwest, constitutes a "settlement" because it was "a negotiated resolution to ensure performance." Relator notes that in Qwest's WSQ Standards, 702 N.W.2d at 262, the supreme court held that respondent lacks authority to impose self-executing remedies. Relator argues that had Qwest refused to voluntarily include self-executing remedies as part of the MPAP, respondent might have refused to endorse the plan, on which Qwest appears to have been counting for its section 271 application. Relator further argues that if the MPAP had been adopted without the self-executing remedies, the state would have had to enforce compliance with the plan through a district court action under Minn.Stat. § 237.461, subd. 1 (2008), which provides an enforcement mechanism for "rules and orders" made under respondent's statutory authority. According to relator, Qwest's agreement to the self-executing remedies was in effect a settlement avoiding the risk of respondent refusing to endorse the MPAP in support of Qwest's section 271 application, and avoiding district-court litigation to enforce the MPAP once approved.
*577 We agree with relator that the proceedings to finalize an MPAP and prepare a record for respondent's section 271 comments to the FCC constitute an "administrative action," and therefore "litigation," within the meaning of section 16A.151. But the money deposited into the Tier 2 Special Fund was neither recovered in that litigation nor recovered "in settlement of a matter that could have resulted in litigation," because the MPAP was not a "settlement" within the meaning of section 16A.151.
A settlement is "[a]n agreement ending a dispute or lawsuit." Black's Law Dictionary 1496 (9th ed. 2009). The MPAP in this case was not created or adopted to resolve a dispute or lawsuit. Variations were suggested by Qwest and CLECs, and a final version was adopted, after comment and modification, by respondent. But the MPAP was not adopted by respondent to resolve any dispute between Qwest and the CLECsit was intended to support Qwest's section 271 application to the FCC to enter the long-distance market. In fact, Qwest made clear in its submissions to respondent that it was not subjecting itself to the terms of the MPAP until its section 271 application was approved. And Qwest's agreement to the MPAP did not preempt any litigationQwest was free to submit its application to the FCC with a PAP different than that approved by respondent, or with no PAP at all. In a submission to respondent, Qwest stated:
The FCC has never required Bell Operating Company ("BOC") applicants to demonstrate that they are subject to performance monitoring and enforcement mechanisms as a condition of section 271 approval. However, where a BOC has voluntarily provided a [PAP], the FCC has stated that these mechanisms would constitute "probative evidence" that the BOC will continue to meet its section 271 obligations and that its entry would be consistent with the public interest.
Qwest's inclusion of a PAP approved by respondent may have strengthened its section 271 application, but Qwest was not required to include one. See Bell Atl. N.Y., 15 F.C.C.R. at 4164-65 (stating that while the FCC does not require a mechanism such as a PAP as a condition of section 271 approval, it "strongly encourages" such mechanisms, which are "probative evidence" that the applicant "will continue to meet its section 271 obligations and that its entry would be consistent with the public interest").
Relator in effect argues that the MPAP was an agreement ending the "dispute or lawsuit" that was the Minnesota Public Utilities Commission proceeding that existed solely to prepare respondent to submit comments to the FCC in support of Qwest's section 271 application. But this is no more a "settlement" than is a final set of contract terms following protracted negotiations between two parties to a business transaction. In such a circumstance, the transaction could later result in a dispute that the parties litigate or settle. Similarly here, the MPAP provides a framework for dispute resolution. If Qwest and respondent disagreed as to Qwest's obligation in a particular circumstance to pay money into the Tier 2 Special Fund, and that disagreement were resolved by litigation or settlement, section 16A.151 might require that the money recovered after such litigation or settlement be deposited in the general fund (though that issue is not before us today). But money deposited voluntarily by Qwest, under the self-executing remedies by which it agreed to abide in its application to the FCC and its interconnection agreements with CLECs, is not money recovered in settlement or litigation, but merely by *578 Qwest's compliance with the terms of its own agreements.
Because we conclude that the money in the Tier 2 Special Fund is not "[m]oney recovered ... in litigation or in settlement of a matter that could have resulted in litigation," section 16A.151 does not require that the money be deposited in the general fund.
II. Departure from Precedent
Relator also argues that respondent's decision was arbitrary and capricious because respondent departed from its own precedent. "An administrative agency concerned with furtherance of the public interest is not bound to rigid adherence to precedent." In re Review of the 2005 Annual Automatic Adjustment of Charges for All Elec. & Gas Utils., 768 N.W.2d 112, 120 (Minn.2009) (2005 Review) (quotation omitted). But an agency may not "abandon its own precedent without reason or explanation." Id. (quotation omitted). "[A]n agency must generally conform to its prior norms and decisions or, to the extent that it departs from its prior norms and decisions, the agency must set forth a reasoned analysis for the departure that is not arbitrary and capricious." Id. A decision is arbitrary and capricious if the agency:
(a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency's expertise.
Id. at 118 (quotation omitted).
Relator argues that respondent's decision was arbitrary and capricious because it did not set forth a reasoned analysis for its departure from its prior application of section 16A.151 in two cases: In re Application for Approval of the Merger of Northern States Power Co. and New Century Energies, Inc., MPUC Docket No. E, G-002/PA-99-1031 (May 26, 2005 order) (NSP Merger), and In re Qwest Corp.'s Alternative Form of Regulation (AFOR) Plan, MPUC Docket No. P-421/AR-97-1544, 2006 WL 1005129 (Oct. 23, 2003 order; Aug. 4, 2005 order; Jan. 20, 2006 order) (Qwest's AFOR Plan).
NSP Merger involved the disposition of $100,000 in penalty money owed by Northern States Power Co. (NSP) under a stipulated agreement between NSP and the Attorney General's Office (OAG) that was made a condition of the Minnesota Public Utilities Commission's approval of NSP's merger. Among other things, the agreement addressed service-quality issues. NSP acknowledged that it had not met the service-quality standard that would allow it to avoid payment of the $100,000 penalty and sought the commission's guidance as to the disposition of the money. The OAG also filed comments. NSP and the OAG agreed that, although section 16A.151 applied, the exception in subdivision 2(a) also applied, which provides that if a state official litigates or settles on behalf of specific injured persons, money may be distributed to those specific injured persons rather than to the general fund. No one argued that section 16A.151 might not apply. The commission agreed with the parties, directing distribution of the penalty money to the affected customers under section 16A.151, subdivision 2(a).
NSP Merger is distinguishable from the case now before us. In NSP Merger, the stipulated agreement was a "settlement" between the OAG and NSP within the meaning of section 16A.151. The agreement was a condition of the commission's approval of the merger, which "was approved because, among other things, it contained assurances that the merged *579 company's customers would receive service at a particular standard and that the merged company would incur financial consequences for failure to meet those standards." The agreement was part of the settlement of the administrative litigation commenced by NSP to gain commission approval of its merger and distribution of the $100,000 penalty owed to its customers.
Here, the MPAP was not a settlement of litigation. The MPAP in this case was created prior to Qwest's section 271 application to the FCC to provide assurances to the FCC that Qwest would continue to comply with its obligations under the 1996 Act after its application was approved. Because NSP Merger does not constitute on-point precedent in this case, respondent did not arbitrarily and capriciously depart from existing precedent simply because it did not explain why it was not following NSP Merger.
The case of Qwest's AFOR Plan involved the disposition of penalty payments made by Qwest (or its predecessor U.S. West) under an alternative-form-of-regulation (AFOR) plan adopted by the commission and Qwest. The AFOR plan required Qwest to make stipulated payments when it failed to meet specified retail service-quality standards. On October 23, 2003, the commission ordered that section 16A.151 required that the money be deposited in the general fund because particular injured parties could not be readily located or identified. On August 4, 2005, the commission reversed course, stating that section 16A.151 did not apply because "[t]he funds in question were not recovered from litigation or settlement, but are the result of a plan arising from statutorily-defined regulatory process of negotiation that involved U.S. West, the Department [of Commerce] and various other parties, under the Commission's supervision." On January 20, 2006, the commission stated that its August 4, 2005 ruling "was premature." But the commission retained its position that section 16A.151 did not apply to the money because the AFOR plan became effective in 1999, prior to section 16A.151's 2001 adoption, and the legislature had not expressed a clear intent that the section should be retroactively applied.
Relator argues that the October 23, 2003 order in Qwest's AFOR Plan is precedent that respondent should have followed in this case, but that the contrary August 4, 2005 order is not precedent because it was abrogated by the January 20, 2006 order. Respondent counters that, in light of the January 20, 2006 order, neither of the previous orders is precedential. We agree with respondent. In Qwest's AFOR Plan, any precedent on the issue of section 16A.151's application to funds recovered under Qwest's AFOR plan is found in the commission's January 20, 2006 order, which states that "[i]t is not necessary to determine whether § 16A.151 governs AFOR service quality plans in general because it is clear that § 16A.151 does not apply to this AFOR in particular," because the AFOR plan predates the statute. The commission's January 20, 2006 order overrules the October 23, 2003 order that section 16A.151 applies, as well as the August 4, 2005 order that the section does not apply. Because the October 23, 2003 order in Qwest's AFOR Plan does not constitute on-point precedent in this case, respondent did not arbitrarily and capriciously depart from existing precedent simply because it did not explain why it was not following Qwest's AFOR Plan.
But even if respondent's decision in this case were a departure from its prior norms and decisions applying section 16A.151and we conclude that it was notrespondent was required only to set forth a reasoned analysis for the departure *580 that was not arbitrary and capricious. See 2005 Review, 768 N.W.2d at 120. The issue addressed by respondent in this casewhether section 16A.151 requires respondent to deposit the balance of tier-2 money in the general fundwas a purely legal issue involving the interpretation of the words in a statute. See St. Otto's Home, 437 N.W.2d at 39-40. Respondent explained its decision and provided legal analysis in its order. Moreover, relator has failed to show how, in its decision and analysis, respondent relied on factors not intended by the legislature, failed to consider an important aspect of the problem, or offered an explanation running counter to the evidence or that was implausible. More importantly, as discussed above, respondent reached the correct legal conclusion in this case. Therefore, even if respondent's decision in this case departed from its precedent, we would not reverse.
DECISION
The balance of money in the Tier 2 Special Fund was not money recovered in litigation or in settlement of a matter that could have resulted in litigation. Respondent therefore correctly determined that Minn.Stat. § 16A.151 did not require that the money be deposited in the state's general fund.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547361/ | 15 F.2d 303 (1926)
PEAKE et al.
v.
LINCOLN NAT. LIFE INS. CO.
No. 7330.
Circuit Court of Appeals, Eighth Circuit.
October 22, 1926.
Benjamin M. Powers, of Kansas City, Mo. (Francis M. Hayward and Clarence L. Hogin, both of Kansas City, Mo., on the brief), for appellants.
William C. Michaels, of Kansas City, Mo. (Henry I. Eager, of Kansas City, Mo., D. B. Ninde and F. B. Shoaff, both of Ft. Wayne, Ind., and Haff, Meservey, Michaels, Blackmar & Newkirk, of Kansas City, Mo., on the brief), for appellee.
Before LEWIS, Circuit Judge, and TRIEBER and KENNAMER, District Judges.
LEWIS, Circuit Judge.
The Lincoln National Life Insurance Company, an Indiana corporation, appellee here, brought this suit in the court below on October 23, 1924, against Annie K. Peake and Benefit Building & Loan Association, a Missouri corporation. The bill alleges that on July 5, 1923, George L. Peake made an application in writing to plaintiff for a $7,000 policy of life insurance in favor of his wife as beneficiary; that the applicant made certain false and untrue statements in his application in answer to questions therein contained, and thus concealed from plaintiff his excessive use of intoxicating liquors and the fact that he had taken treatment on account of such excessive use and that he had consulted physicians about his mental derangement and nervousness and that he had been discharged by his employer on account of his use to excess of alcoholic stimulants; that he further concealed the fact that in the preceding spring he had been a patient in a sanitarium and there treated for alcoholism and mental trouble and nervousness; that the questions propounded to applicant in said application made direct inquiry of him whether he had used alcoholic stimulants to excess and he answered in the negative; that the matters inquired about were material to the risk and the applicant willfully and fraudulently made untrue answers thereto; that plaintiff, believing said questions had been truly answered relied thereon and was induced thereby to issue its policy on the life of said George L. Peake, dated July 5, 1923, and the same was delivered to him on August 3, 1923, at which time he paid the first *304 annual premium therefor, and thus by fraud and deceit of the said Peake plaintiff was induced to issue its said policy; that the insured committed suicide on July 20, 1924; that Benefit Building & Loan Association claims some interest in the policy and the right of possession thereof, the extent thereof being unknown to plaintiff; that the policy is in the hands of one or the other of the defendants and that if the same remains in their hands plaintiff is liable to be vexed with one or more suits based on the policy at some remote time after the period of contest mentioned in the policy has expired; that prior to the bringing of suit plaintiff tendered to each of the defendants the premium that had been paid on the policy with lawful interest thereon and the same was refused. Plaintiff asked that the policy be brought into court and that it be canceled. On the next day, October 24, Mrs. Peake, beneficiary named in the policy and one of the appellants here, brought an action in the State court of Missouri against the insurer to recover the amount named in the policy, she having theretofore made proof of death. The insurer at once removed that case to the Federal court, in which it had filed its bill, and it filed its answer there to Mrs. Peake's complaint, setting up in defense the same facts that were stated in the bill. It also filed its supplemental bill in its equity suit, in which it alleged that Mrs. Peake had brought an action at law against the insurer in the State court after the defendants in the equity suit had been served with subpnas issued therein, that it had caused the action at law to be removed to the Federal court and it was then pending in the same court in which the equity suit was pending; it alleged that the Benefit Building & Loan Association had never filed any disclaimer of interest or ownership of the policy but on the contrary it had served notice on the insurer prior to the bringing of the equity suit that it had become assignee of the policy and was then making claim that it was entitled to the proceeds thereof, either as equitable or legal assignee or owner thereof, that the Building & Loan Association had not brought an action on the policy and it was alleged to be the belief of plaintiff that it was the purpose of the Building & Loan Association to delay the assertion in court of its claim to the policy and await bringing any action thereon until after the two years' contestable period named in the policy should have expired, which would deprive the plaintiff in such a suit from setting up the defense of fraud and deceit of the insured in obtaining the policy. And it was prayed that the court enjoin Annie K. Peake from prosecuting her action at law and enjoin both defendants from bringing any other action or actions on the policy. On hearing the injunction prayed for was issued and the two defendants below joined in taking this appeal. They have not answered the bill and supplemental bill.
At the hearing on application for the injunction a written assignment by Annie K. Peake of all her interest in the policy to the Benefit Building & Loan Association, of date August 1, 1923, was produced, also there was produced a letter dated April 15, 1924, from the Building & Loan Association, addressed to the insurer's general agent, which enclosed the assignment. On receipt of this letter, and the assignment of Annie K. Peake enclosed therein, the insurer's agent sent to the Building & Loan Association a form of assignment of the policy used by the company, for the signatures and acknowledgment of both George L. Peake and Annie K. Peake thereto. George L. Peake came to his death three months thereafter. The general agent at Kansas City to whom the assignment was sent by the Building & Loan Association retained it until after the death of George L. Peake, when he sent it to the company's home office at Indianapolis. The Building & Loan Association retained the form of assignment used by the company sent to it by the general agent. It does not appear whether that form was ever signed by either George L. or Annie K. Peake, or both of them.
Appellants contend that (1) Mrs. Peake's claim is a legal demand and appellee could make its defense of fraud and deceit to that action as a legal defense, and thus had a remedy at law, Insurance Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501; (2) the insurer's claimed equitable right and remedy are fully set up in the answer to Mrs. Peake's action, filed within the two years' time named in the incontestable clause of the policy, and those rights can be adjudicated in that action, hence there was no occasion to enjoin the prosecution of that action, U. P. Ry. Co. v. Syas, 246 F. 561, 158 Cow. C. A. 531; and (3) the insurer notified counsel for appellants in writing within two years after issuance of the policy that it denied liability thereon, which, under the ruling in Insurance Co. v. Hurni Packing Co. (C. C. A.) 280 F. 18, saved its rights under the incontestable clause of the policy as against any action that might be brought by the Building & Loan Association. That clause reads thus:
*305 "This policy is free of conditions as to occupation, residence, travel or military or naval service except as provided in the suicide and aviation clause herein, and shall be incontestable after two years from date of issue."
A further and fourth contention, apparently made in behalf of both appellants, is based on the claimed assignment of the policy. The clause in the policy in that respect reads:
"No assignment of this policy shall be binding on the company until it be filed with the company at its home office. The company, by receiving or filing any assignment does not assume any responsibility as to the validity or sufficiency thereof. Any claim made under an assignment shall be subject to proof of interest and extent thereof."
The general agent of insurer, when it received Mrs. Peake's assignment from the Building & Loan Association, held it and sent back the insurer's form of assignment for signature by the insured and the beneficiary, and the assignment signed by Mrs. Peake was not forwarded to the insurer until after the insured's death. It is said the insurer never recognized the assignment, and it seems to be argued that these facts show there was no valid assignment to the Building & Loan Association.
If Mrs. Peake had brought her action before the equity suit had been instituted, and if it were established that she and the insurer were the only parties interested in the subject, the first two propositions contended for might be conceded as sound. But that was not the situation presented by the bill and its supplement, and we are not called on to determine the rights of the parties as to procedure under those conditions. The bill made the Building & Loan Association defendant with Mrs. Peake, for the reasons therein stated. It alleged that the Association claimed some right and interest in the policy, that insurer was liable to be vexed with suits to be brought by Mrs. Peake and by the Building & Loan Association, each asserting ownership of the contract, and that the Association was at liberty to delay instituting its action until the contestable period named in the policy should expire, thus precluding the defense of fraud and deceit. The proof showed that Mrs. Peake had executed a written assignment of her interest in the policy to the Association, and it does not disclaim having an interest. It was thus made to appear on the face of the bill, not only that the policy was obtained by fraud and deceit but also that the insurer was open to vexatious litigation by two claimants of the policy, and that as to one of them it stood the chance by waiting of having its only defense barred by the terms of the policy. The insurer thus sought an adjudication of its claimed equitable right to a decree directing a surrender and cancellation of the policy. On the facts and circumstances stated we think it clear the insurer had no remedy at law for the relief sought, nor would it be fully protected by pleading its equitable rights in Mrs. Peake's case. The facts in Jefferson Standard Life Ins. Co. v. Keeton (C. C. A.) 292 F. 53, were so like the facts here that the two cases cannot be distinguished on principle, eliminating all allegations with reference to the Building & Loan Association and its interest. No assignment of the policy had been made in that case. There the bill in equity was brought first. The lower court denied injunction against the prosecution of the law action on the policy and this was held to be error. The Fifth Circuit, in Jefferson Standard Life Ins. Co. v. McIntyre, 294 F. 886, held that the insurer had a right to maintain a suit in equity to cancel a policy containing an incontestable clause such as we have here, on allegations that its issuance had been procured by false statements as to the health of the insured. It was alleged in the bill that defendants were threatening to sue at law on the policy after the contest period would expire. The Fourth Circuit, in Jones v. Insurance Co., 11 F.(2d) 69, followed the rule which it had announced in the Keeton Case. Story's Eq. Jur. (13th Ed.) § 935, says that a court of equity will exercise its jurisdiction as a protective or preventive remedy and cancel the contract, if the facts so require, to prevent its being vexatiously or injuriously used against the complaining party. No possible injury or detriment can come to Mrs. Peake by staying her action until the equity suit is first disposed of, which will be tried without a jury, as the equitable defense to her law action also would be tried without a jury. U. P. R. Co. v. Syas, supra; Liberty Oil Co. v. Condon Bank, 260 U.S. 235, 43 S. Ct. 118, 67 L. Ed. 232. She is being denied no right by the order complained of. If the plaintiff fails in the equity suit and she is adjudged to be the full owner of the policy, she will be entitled to a judgment in the law action, as we are now advised.
We cannot agree with counsel's contention about the assignment, and that it appears that the Building & Loan Association has no interest. The policy is a chose in action and passes by assignment. Sheldon v. Sill, 8 How. 441, 449, 12 L. Ed. 1147; Life Ins. Co. v. Armstrong, 117 U.S. 591, 6 S. Ct. 877, 29 *306 L. Ed. 997; 32 Cyc. 670. Mrs. Peake assigned her interest in the policy, and that assignment was delivered to the Building & Loan Association, which transmitted it to the company. The policy itself recognizes in terms the right to assign it, and does not restrict that right to the use of a particular form. The form of assignment which the insurer desired to be used was a matter of precaution in its interest and the interest of others in it. The Association has made no denial that would bind it against claiming under that assignment, and the insurer is entitled to an adjudication that will bind both it and Mrs. Peake as to ownership, in order to prevent vexatious litigation and the chance of being held in double liability on the one obligation. Too much is claimed from what is said in Insurance Co. v. Hurni Packing Co., supra. Taken literally it supports appellants' contention, but the sentence relied on was used as a concession. And then, arguing from the concession as a premise, it was shown that the letter denying liability in that case was not sent to the beneficiary within the time limited by the two years' incontestable clause. That was the only purpose the sentence served. It is dictum when used for another purpose. It cannot be doubted that the great weight of authority is to the effect that a contest intended by such a clause is a contest initiated by an appropriate proceeding in court within the time limited. Life Insurance Co. v. Pickering (C. C. A.) 293 F. 496; Life Insurance Co. v. McIntyre, supra; Scharlach v. Insurance Co. (C. C. A.) 9 F.(2d) 317; Chun Ngit Ngan v. Insurance Co. (C. C. A.) 9 F. (2d) 340; Insurance Co. v. Cranford, 161 Ark. 602, 257 S.W. 66, 31 A. L. R. 93; Priest v. Insurance Co., 119 Kan. 23, 237 P. 938, 41 A. L. R. 1100. Many cases in the State courts are referred to in those that have been cited. But granting, for the sake of argument, that the Hurni Packing Co. Case supports appellants' contention that written notice denying liability is a contest within the meaning of the incontestable clause, nevertheless the equitable right presented by the bill on that subject is not thereby met; because the Building & Loan Association would be free to institute an action on the policy in a jurisdiction where the rule supported by the great majority of decisions prevails. It might go into either State or Federal court at Indianapolis, and it does not appear that in either of those jurisdictions a mere denial of liability constitutes a contest.
For the reasons stated the decree appealed from is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/312175/ | 480 F.2d 1261
In the Matter of TEXAS CONSUMER FINANCE CORPORATION, Debtor.FIRST SOUTHWEST CORPORATION et al., Appellants,v.TEXAS CONSUMER FINANCE CORPORATION, Appellee.
No. 72-2663.
United States Court of Appeals,Fifth Circuit.
June 22, 1973.
Bill F. Bogle, Fort Worth, Tex., for appellants.
Atwood McDonald, Fort Worth, Tex., for appellee.
Before COLEMAN, MORGAN and RONEY, Circuit Judges.
RONEY, Circuit Judge:
1
Does a Bankruptcy Court have jurisdiction in a Chapter XI proceeding to order the surrender for cancellation of the outstanding preferred stock of the bankrupt corporation? We answer this question in the negative and reverse the order of the District Court.
2
In this proceeding under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. Sec. 701 et seq., Texas Consumer Finance Corporation, a Texas corporation, is the Debtor. The subject securities, 800 outstanding shares of preferred stock in Texas Consumer, are owned by First Southwest Corporation, an Oklahoma corporation, and John W. Grissom and Charles R. Grissom, as Trustees of First Southwest's Employees Savings and Stock Plan Funds A and B. The Plan of Arrangement, funded by Colonial Commercial Corporation and approved by the Bankruptcy Court, had as a condition precedent to its effectiveness the provision that all shares of Texas Consumer preferred stock be submitted for cancellation. Although consummation of the Plan was conditioned upon such cancellation, the Plan did not require the owners to turn in such preferred shares.
3
Subsequently, after a hearing pursuant to a show cause order, the Referee entered an order requiring First Southwest and the Trustees to surrender their preferred stock for cancellation. The District Court affirmed the Referee's order.
4
The controlling question presented by this appeal is whether the Referee had jurisdiction to enter the order. Although our review of the record indicates that the Referee might have had sufficient reasons for granting the relief set forth in the order, that order cannot stand if he did not have jurisdiction over the preferred shares and the preferred shareholders.
5
A brief review of the facts will show why the Referee sought control over the preferred shareholders.
6
John R. Grissom, a member of the Creditors Committee which recommended the Plan of Arrangement, was president of First Southwest, which owned 641 shares of Texas Consumer's preferred stock, and, with his brother, was a Trustee of First Southwest's Employees Funds, which owned 159 shares. He was also president of Lincoln Bank, an unsecured creditor of Texas Consumer with a note for $75,000. Although Grissom initially cast an affirmative vote in committee for the Plan, he later changed his vote at that meeting and subsequently maintained the position that the Creditors Committee was not the proper forum for discussion of the preferred stock.
7
Lincoln Bank accepted the Plan, but First Southwest and the Trustees refused to surrender their preferred shares. Grissom then offered Colonial, which was to fund the Plan, a "package" deal by which the Lincoln claim would be satisfied in full and the preferred shares would be surrendered for payment of $155,000.
8
Compliance with Grissom's proposal would have resulted, the Referee found, in Lincoln's receiving 100 percent of its claim while other creditors would have received only 56 percent of their claims and in First Southwest's and the Trustees' receiving 100 percent of the stated redemption price for their shares, which would have been
9
valueless in the event of an adjudication in bankruptcy and only worth twenty percent of redemption value in the event they had been surrendered for cancellation.
10
The Referee's finding that Grissom's conduct was "inequitable, unconscionable, or illegal" rested on several particulars, including
11
(1) his active participation in the Creditors Committee's formulation of the Plan and subsequent refusal to comply;
12
(2) his failure to disclose to the Committee that First Southwest and the Trustees would not deliver their preferred shares for cancellation;
13
(3) his non-disclosure to the Court of his conflict of interest as a member of the Creditors Committee;
14
(4) his failure to disclose his change of vote to fellow Committee members;
15
(5) his failure to disclose his "package" during consideration of the Plan and his later insistence on its sale for $155,000 in apparent violation of 18 U.S.C.A. Sec. 152;
16
(6) the fraud and breach of fiduciary duty occasioned by these failures to disclose. Woods v. City Nat'l Bank & Trust Co. of Chicago, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941).
17
Having found that "Grissom's wrongful conduct has tainted all the entities associated with him," the Referee concluded that First Southwest, the Trustees, and Lincoln "can and will be forced to do equity."
18
Grissom's conduct, the Referee concluded, "shock[ed] the conscience of the Court":
19
Grissom intended to withhold his Preferred shares from redemption unless he and his companies were paid in full for all their claims. He decided to "hold out" and "hold up." He made no disclosure of his decision until after acceptance and confirmation of the Plan. In fact he took all steps possible to conceal his true intention from the other members of the Creditors Committee and the Court.
20
Because of this conduct, consequently, the Referee ordered the surrender of the preferred shares for cancellation. The basis of liability was an implied agreement made by the preferred shareholders through Grissom that the preferred shares would be submitted for cancellation in order to obtain approval of the Plan. The Referee found that Grisson was estopped to deny the agreement and also imposed on Lincoln's claim certain conditions not in question on this appeal. The District Court adopted the Referee's findings of fact and conclusions of law and accepted his reasoning to justify the Court's authority to order this remedy.
21
Although the Trustee in Bankruptcy might prevail in a plenary action on the implied agreement found by the Referee, the merits of which we have not considered, the claim cannot be asserted in summary proceedings against the shareholders unless the Referee had jurisdiction to administer the preferred shares.
22
We find that the Referee confused his equitable powers to deal with matters and persons properly before him with his statutory jurisdiction. He asserted the equitable character of Bankruptcy Courts, see Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966); Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); DeMet v. Harralson, 399 F.2d 35 (5th Cir. 1968); Spach v. Bryant, 309 F.2d 886 (5th Cir. 1962), and, relying on these authorities, noted that "[t]he Court's equitable powers are based as the circumstances of the case require, and their application demonstrates considerable ingenuity by the higher courts." For example,
23
In Pepper v. Litton, supra, and DeMet v. Harralson, supra, inequitable conduct by corporate officers and directors who were also creditors brought about a subordination of their claims to full payment of the other creditors. In Bank of Marin v. England, supra, "equitable principles" led to a recasting of Section 70(d)(5) of the Bankruptcy Act in the face of its plain language and clear legislative history. In Local Loan v. Hunt, supra, "equitable principles" led the Court to affirm an injunction by the Bankruptcy Court of a State Court action to enforce a pre-bankruptcy assignment of wages which had been held by the Illinois Supreme Court to be an undischargeable lien
24
______
25
* * *
26
The Bankruptcy Court is guided by equitable doctrines and principles, but only insofar as they are consistent with the Bankruptcy Act. See American United Mutual Life Ins. Co. v. City of Avon Park, Florida, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91 (1940); S.E.C. v. United States Realty Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940); Taubel-Scott-Kitzmiller Co., Inc. v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770 (1923); In Re Ross Sand & Gravel Inc., 289 F.2d 311 (6th Cir. 1961); Evarts v. Elroy Gin Corp., 204 F.2d 712 (9th Cir. 1953). The equity jurisdiction conferred by the Act merely empowers the Referee to employ the principles of equity in the exercise of his statutory jurisdiction. Jurisdiction of the Bankruptcy Court is framed by statute according to the particular proceeding involved under the Bankruptcy Act, and the Bankruptcy Court's exercise of its equitable powers must be strictly confined within the prescribed limits of the Bankruptcy Act.
27
Chapter XI, comprising the section of the Bankruptcy Act pertinent to the case at bar, is a statutory variation of the common law composition of creditors for relief to unsecured creditors only. The provisions of an arrangement permitted under Chapter XI include those
28
modifying or altering the rights of unsecured creditors generally or of some class of them, upon any terms and for any consideration.
29
11 U.S.C.A. Sec. 756. Under Chapter XI, the Bankruptcy Court's jurisdiction is limited to the "debtor and his property, wherever located." 11 U.S.C.A. Sec. 711. No provision of the Act permits an arrangement proposed under Chapter XI to deal with the rights of secured creditors or with the rights of stockholders. See 9 Collier on Bankruptcy, p 8.01 at 155 (14th ed. 1940).
30
Although Chapter X is designed to provide detailed safeguards for investors' interests, Chapter XI provides "merely a rudimentary system of creditor control designed for the corporation which has only trade and commercial creditors." S.E.C. v. United States Realty Co., supra, 310 U.S. at 437, 60 S.Ct. 1044. Thus, a Chapter X reorganization plan may affect the securities of the debtor corporation, but only the rights of the debtor's unsecured creditors may be arranged under Chapter XI. The status of the debtor's securities may not be altered. See S.E.C. v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965); S.E.C. v. United States Realty Co., supra; see also 8 Collier on Bankruptcy, supra, at p 2.07, et seq.
31
The background and interrelationship of Chapter X and Chapter XI have been reviewed by the Supreme Court in S.E.C. v. American Trailer Sales, supra;
32
As part of the same Act in which Chapter X was enacted Congress also, in 1938, enacted Chapter XI. . . . The contrast between the provisions of Chapter X, carefully designed to protect the creditor and stockholder interests involved, and the summary provisions of Chapter XI is quite marked . . . [While Chapter X affords judicial control over the entire proceedings and expert, impartial administrative assistance in corporate reorganization,] the entire Chapter XI proceeding, for all practical purposes is in the hands of the debtor, subject only to the requisite consent of a majority in number and amount of unsecured creditors, Sec. 362, and the ultimate finding by the court that the plan is, inter alia, "for the best interests of the creditors." Sec. 366.
33
379 U.S. at 605-606, 85 S.Ct. at 520; see General Stores Corp. v. Shlensky, 350 U.S. 462, 76 S.Ct. 516, 100 L.Ed. 550 (1956); S.E.C. v. United States Realty Co., supra. The purpose of Chapter XI, therefore, is merely to provide "a quick and economical means of facilitating simple compositions among general creditors who have been deemed by Congress to need only the minimal disinterested protection provided by the Chapter." 379 U.S. at 606-607, 85 S.Ct. at 520. Since the Bankruptcy Court, in Chapter XI proceedings, has jurisdiction of only the debtor and his property and the corporate debtor has no property interest in the shares of its stock owned by its stockholders, the Court has no jurisdiction to order or restrain disposal of their stock. See S.E.C. v. American Trailer Rentals Co., supra; S.E.C. v. United States Realty Co., supra; In Re Journal-News Corp., 193 F.2d 492 (2nd Cir. 1953).
34
First Southwest and the Trustees were stockholders, not creditors of Texas Consumer, and the Bankruptcy Act does not confer on the Bankruptcy Court jurisdiction of such parties. The summary procedure which is the main thrust of Chapter XI requires that the debtor and unsecured creditors themselves, without the delay and expense involved in protracted Chapter X proceedings, insure continuation of the business under a self-determined arrangement. The cases relied upon by the Referee sustained the equitable power of the Court as directed against creditors of the Bankrupt, not stockholders.
35
The Referee's jurisdictional claim also rested on his finding that First Southwest and the Trustees, by filing claims under the Plan, consented to jurisdiction of them as creditors. This conclusion is erroneous for two reasons.
36
First, First Southwest and the Trustees withdrew their claims as they were entitled to do as a matter of right. Scholl Mfg. Co. v. Rodgers, 51 F.2d 971 (8th Cir. 1931).
37
Second, although some cases hold that summary jurisdiction may be conferred by consent, see, e. g., Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); In Re Behring and Behring, 445 F.2d 1096 (5th Cir. 1971), the consent issue there concerns whether the Court should proceed summarily rather than by plenary proceedings. It is the mode of procedure that is the subject of consent. Jurisdiction of subject matter must be established before this question may even be raised, and it cannot be conferred by consent, agreement, or other conduct of the parties. See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939); Harllee v. City of Gulfport, 120 F.2d 41 (5th Cir. 1941).
38
Finding that the Bankruptcy Court, albeit an equity court, has no jurisdiction of stockholders in Chapter XI proceedings, it is unnecessary for us to consider the merits of the District Court's conclusion that First Southwest and Trustees were guilty of inequitable conduct.
39
Reversed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3032087/ | 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
SEDRAK SARGSYAN, No. 07-70914
Petitioner, Agency No. A098-510-670
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.
Sedrak Sargsyan, a native and citizen of Armenia, petitions pro se for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the adverse
credibility finding for substantial evidence. See Rivera v. Mukasey, 508 F.3d
1271, 1274 (9th Cir. 2007). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility
determination, see Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001),
specifically the agency’s findings that Sargsyan’s testimony was inconsistent with
his asylum application regarding physical abuse during custody and whether he
had contact with anyone during custody, see Li v. Ashcroft, 378 F.3d 959, 964 (9th
Cir. 2004). Accordingly, Sargsyan’s asylum and withholding of removal claims
fail.
Substantial evidence supports the agency’s determination that Sargsyan is
not entitled to CAT relief because he failed to demonstrate that it is more likely
than not that he will be tortured upon return to Armenia. See Malhi v. INS, 336
F.3d 989, 993 (9th Cir. 2003).
We cannot review the additional evidence Sargysan submitted here because
it is not part of the administrative record. See 8 U.S.C. § 1252(b)(4).
PETITION FOR REVIEW DENIED.
2 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3070791/ | NUMBER 13-15-00142-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
HERMELINDA PENA, Appellant,
v.
TAX CLERK WASHINGTON, Appellee.
____________________________________________________________
On “DWC Benefit Award”
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez, and Longoria
Memorandum Opinion Per Curiam
Appellant, Hermelinda Pena, attemped to perfect an appeal of a “DWC Benefit
Award.” Upon review of the documents before the Court, it appeared that there was no
final, appealable judgment. On March 30, 2015, the Clerk of this Court notified appellant
of this defect so that steps could be taken to correct the defect, if it could be done. See
TEX. R. APP. P. 37.1, 42.3. Appellant was advised that, if the defect was not corrected
within ten days from the date of receipt of the notice, the appeal would be dismissed for
want of jurisdiction. Appellant failed to respond to the Court’s notice.
In terms of appellate jurisdiction, appellate courts only have jurisdiction to review
final judgments and certain interlocutory orders identified by statute. Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The Court, having considered the
documents on file and appellant's failure to correct the defect in this matter, is of the
opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the
appeal is DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a),(c).
PER CURIAM
Delivered and filed the
28th day of May, 2015.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/731215/ | 102 F.3d 583
322 U.S.App.D.C. 185, 114 Ed. Law Rep. 1026,5 Communications Reg. (P&F) 1053
STATE OF OREGON, Appellant,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Appellees.University Foundation, California State University at Chico,Intervenor.
No. 96-1059.
United States Court of Appeals,District of Columbia Circuit.
Argued Nov. 8, 1996.Decided Dec. 20, 1996.
Appeal of an Order of the Federal Communications Commission.
Howard M. Liberman, Washington, DC, argued the cause for appellant, with whom Gerald Stevens-Kittner was on the brief.
Gregory M. Christopher, Counsel, Federal Communications Commission, Washington, DC, argued the cause for appellees, with whom William E. Kennard, General Counsel, and Daniel M. Armstrong, Associate General Counsel, were on the brief. Roberta L. Cook, Counsel, entered an appearance.
Stanley S. Neustadt and Wayne Coy, Jr., Washington, DC, were on the brief for intervenor University Foundation, California State University at Chico.
Before: WALD, GINSBURG, and TATEL, Circuit Judges.
GINSBURG, Circuit Judge:
1
The State of Oregon, acting through the State Board of Higher Education for the benefit of Southern Oregon State College, appeals a decision of the Federal Communications Commission rejecting as untimely its application for a new noncommercial FM license and denying its application for a waiver of the cut-off rules for competing applications. Because the Commission did not provide clear notice of the cut-off date for competing applications, we reverse the order of [322 U.S.App.D.C. 186] the FCC and remand this matter to the Commission.
I. Background
2
In Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), the Supreme Court held that the FCC must conduct a comparative hearing whenever there are before it mutually exclusive applications for a broadcast license. The FCC has promulgated various regulations governing the processing of such applications and establishing certain filing deadlines. "The purpose of these rules is to attract all competitive applications for a particular [license] within a fixed and reasonably short time frame, allowing the Commission to satisfy its Ashbacker obligations with a single, fairly prompt comparative hearing." McElroy Electronics Corp. v. FCC, 86 F.3d 248, 253 (D.C.Cir.1996).
3
The licensing process for a new noncommercial FM station begins when the Commission receives the first application therefor. If the Commission accepts an application for filing, then the agency must issue a public notice (known as the "A" cut-off list) naming the applicant(s) accepted for filing and announcing a date not less than 30 days after the publication of the notice by which all mutually exclusive applications and petitions seeking to deny the listed application(s) must be filed. 47 C.F.R. § 73.3573(e). Any competing applications filed before the "A" list cut-off date are noted in a "B" cut-off list. The "B" cut-off list contains the deadline for the filing of all petitions to deny "B" list application(s). Id. When the "B" cut-off deadline has passed, the "A" and "B" list applications are set down for a single comparative hearing.
4
In this case, the process got underway in June 1988 when the University Foundation, California State University at Chico submitted to the FCC an application for a noncommercial FM radio station in Redding, California. On November 29, 1989 the FCC sent the Foundation a letter indicating that its application was deficient because it lacked certain engineering information. The letter stated: "Further action on the subject application will be withheld for a period of 30 days from the date of this letter to give you an opportunity to cure these deficiencies." The Commission duly sent Oregon a copy of this letter. On December 6, 1989 the FCC released an "A" cut-off list setting January 10, 1990 as the cut-off date for applications competing with that of the Foundation. On December 28, 1989 the Foundation submitted the engineering information the FCC had requested in its letter of November 29. On the same day, the Commission released another "A" cut-off list setting February 1, 1990 as the deadline for applications competing with that of the Foundation.
5
On January 2, 1990 the Foundation sent a letter to the FCC asking that its application be deleted from the cut-off list issued on December 28, 1989. The Foundation did not send a copy of this letter to Oregon, in apparent violation of the Commission's regulations governing ex parte communications. See 47 C.F.R. §§ 1.1202(b); 1.1208(a). On January 12 the Commission issued an erratum stating that the Foundation's application "was listed inadvertently on [the "A" list], released December 28, 1989 and is hereby deleted."
6
Although it was aware of the January 10 cut-off date in the "A" list published on December 6, Oregon did not file its own application for the Redding station until January 29, 1990. The State asserts that it believed the Commission had published the December 6 list in error because only one week earlier, in the November 29 deficiency letter to the Foundation, the agency had indicated that it would not act upon the Foundation's application for 30 days. Nonetheless, Oregon claims, after the February 1 cut-off date was published it made diligent efforts to determine which cut-off date was valid. The State continued to monitor Commission notices; consulted the Commission's Facility/Application Information Report, which indicated that the February 1 deadline applied; attempted to contact Commission staff directly but was unsuccessful because of the holiday season; and received assurances from the FCC staff indirectly, via Senator Packwood's office, that the Commission would accept applications until February 1.
7
[322 U.S.App.D.C. 187] On January 15, 1990 Oregon sent a letter to the Secretary of the Commission expressing its concern that by issuing the erratum of January 12 deleting the Foundation's application from the December 28 "A" list, the agency intended to adhere to January 10 as the cut-off date. The State explained that it was in the process of preparing a competing application to be filed on or before February 1, which it believed to be the applicable cut-off date.
8
Oregon went on to submit its application on January 29, together with a request for a waiver. On June 21 the Chief of the Audio Services Division, Mass Media Bureau, rejected the State's request for a waiver and returned the application as untimely filed. Oregon then filed an Application for Review by the Commission, in which it argued that the staff exercising delegated authority had acted arbitrarily and capriciously in denying its application as untimely.
9
The Commission denied review, noting that Oregon had "actual knowledge" that the Foundation's application was pending before the agency yet "for reasons known only to Oregon" did not submit its own application until after the Foundation's application was accepted for filing. The Commission rejected the State's argument that it had reasonably relied upon the FAIR Report, that it had reasonably believed the November 29 deficiency letter precluded the Commission from placing the Foundation's application upon an "A" list in less than 30 days, and that it could have filed its application by January 10 if only it had been served with a copy of the Foundation's January 2 letter to the Commission, as required by the agency's rules for ex parte communications. The FCC opined that this case was analogous to Florida Institute of Technology v. FCC, 952 F.2d 549 (D.C.Cir.1992), in which we held that the FCC had provided adequate notice even though it had issued two inconsistent "A" lists.
10
The Commission also denied the State's request for a waiver. The Commission held that this case did not present "extraordinary circumstances" and that the State had not exercised reasonable diligence or demonstrated that its delay in filing was due to a circumstance beyond its control. The Commission subsequently denied the State's motion for reconsideration (over a single dissenting vote), adding that Oregon should not have been confused about the true cut-off date because, under the FCC's regulations, "the December 28 cut-off notice was without legal effect," and "[i]t is a well-settled rule that an agency's failure to follow its own regulations is fatal to the deviant action," quoting Florida Institute, 952 F.2d at 553. Oregon then appealed to this court.
II. Analysis
11
Oregon makes two arguments on appeal. The first is that, because the Commission failed to provide adequate notice of the cut-off date, it was arbitrary and capricious to deny the State's application as untimely filed. The second is that it was arbitrary and capricious for the FCC to deny the State's application for a waiver of the cut-off rule. Because we conclude that the Commission's rejection of Oregon's application as untimely was arbitrary and capricious, we will not address whether the FCC should have granted the petitioner's waiver request.
12
The FCC enforces its cut-off rules strictly in order to provide a prompt comparative hearing and to ensure that applicants are treated fairly and consistently. Id at 550. We have approved the FCC's policy of strict enforcement but only "so long as 'the quid pro quo ... is explicit notice of all applicability requirements.' " Id. (quoting Salzer v. FCC, 778 F.2d 869, 875 (D.C.Cir.1985)). As we have explained before, "The dismissal of an application is a sufficiently grave sanction to trigger [the] duty to provide clear notice." Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3 (D.C.Cir.1987). Accordingly, we have held that the FCC acts arbitrarily and capriciously "when it reject[s] an application as untimely based on an ambiguous cut-off provision, not clarified by FCC interpretations, if the applicant made a reasonable effort to comply." Florida Institute, 952 F.2d at 550.
13
Oregon argues that the FCC acted arbitrarily and capriciously in rejecting its application because the agency failed to give [322 U.S.App.D.C. 188] prospective applicants for the Redding station clear notice of the cut-off date for competing applications. Oregon claims that it reasonably believed that the second "A" list was correct because the Commission's letter of November 29 had indicated that the agency would take no action on the Foundation's application for 30 days; the FAIR Report stated that the cut-off date was indeed February 1; and the second "A" list was issued before the first-announced cut-off date--all of which suggests that the Commission was covering an invalid premature notice with a valid one.
14
The Commission, relying upon our subsequent decision in Florida Institute, responds that the duplicative cut-off list could not have created any ambiguity. The Commission contends that because the first "A" list was never retracted, the second "A" list could have no legal effect and therefore could not have misled Oregon.
15
The Commission's reliance upon Florida Institute is misplaced. In that case one applicant filed its application after the FCC had issued an "A" list and before the cut-off date for mutually exclusive applications. Under the applicable regulations, the Commission should then have issued a "B" list including this second application and a cut-off date for petitions to deny, but it failed to do so. Two years after it had issued the first "A" list, the Commission mistakenly issued a new "A" list containing the second application and announcing a new cut-off date. The Florida Institute of Technology filed its own mutually exclusive application before the cut-off date, but the FCC rejected the application as untimely. The Institute argued that its application was timely because the second "A" list supplanted the first with a new cut-off date, thereby beginning the filing process anew. We rejected this argument, saying: "The new 'A' cut-off date could not supplant the earlier one because the September 1986 notice was without legal effect: '[i]t is a well-settled rule that an agency's failure to follow its own regulations is fatal to the deviant action.' " Id. at 553 (quoting Way of Life Television Network, Inc. v. FCC, 593 F.2d 1356, 1359 (D.C.Cir.1979)).
16
The facts here are significantly different. In Florida Institute, the second "A" list was published not before but long after the original cut-off date. The Institute did not and could not argue that the FCC failed to give clear and adequate notice of the filing deadline; indeed, the Institute could have determined that the second "A" list was issued in error simply by examining the public record. The Institute's primary argument on appeal was instead that the second "A" list created a new window period for the filing of mutually exclusive applications. We rejected this attempt by the Institute to turn a clerical error into a windfall of "rights it would not otherwise enjoy." Id.
17
Here, in contrast, Oregon argues that the Commission failed to give clear notice of the deadline: First the FCC said the cut-off date was January 10; then, well before that date, it said the deadline was February 1. Unlike the petitioner in Florida Institute, Oregon was faced with overlapping filing periods, and therefore never had one complete filing period during which the deadline was clear. Although an FCC regulation provides that an application should be placed on only one "A" list, it was quite possible, and certainly within the Commission's power to declare, that it had issued the first "A" list in error. Oregon's confusion was therefore understandable; not only had the second "A" list been issued well before the original filing deadline, but the FAIR reports indicated that the second "A" list was applicable, and--although the Foundation, unbeknowst to Oregon, had brought the error to the FCC's attention in its letter of January 2--the agency did not move to correct its error until after the first deadline had passed. Thus, although the FCC originally gave clear notice of the January 10 cut-off, its subsequent actions so muddied the waters that a prospective applicant could not be confident what the cut-off date was. Of course, the State could in these uncertain circumstances have hastened to apply by the original cut-off date, but its failure to do so does not relieve the Commission of its obligation in the first instance to provide the public with clear notice of the cut-off date. And absent clear notice, it was arbitrary and capricious for the agency to reject Oregon's application.[322 U.S.App.D.C. 189] III. Conclusion
18
The FCC acted arbitrarily and capriciously by rejecting Oregon's application as untimely without having provided clear notice of the filing deadline. Therefore, we vacate the Commission's order dismissing Oregon's application and remand this case to the agency for further proceedings consistent with the foregoing opinion.
19
So ordered. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/762775/ | 172 F.3d 422
UNITED STATES of America, Plaintiff-Appellee,v.John M. GANTLEY, Defendant-Appellant.
No. 97-6027.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 26, 1998.Decided March 30, 1999.
David J. Guarnieri (argued and briefed), Johnson, Judy, True & Guarnieri, LLP, Frankfort, Kentucky, for Defendant-Appellant.
Charles P. Wisdom, Jr. (argued and briefed), Office of the U.S. Attorney, Lexington, Kentucky, for Plaintiff-Appellee.
Before: JONES and COLE, Circuit Judges; O'MALLEY, District Judge.*
O'MALLEY, D.J., delivered the opinion of the court, in which COLE, J., joined. NATHANIEL R. JONES, J. (pp. 431-32), delivered a separate concurring opinion.
1
O'MALLEY, District Judge.
2
Defendant-appellant John Gantley brings this interlocutory appeal challenging the district court's judgment denying a motion to dismiss a criminal information on grounds of double jeopardy. Because we conclude the district court's judgment was not in error, we AFFIRM and remand this case for trial.
3
I. Facts.
4
On December 23, 1996, the government filed a criminal information against defendant-appellant John Gantley, charging him with violating the Fair Credit Reporting Act, 15 U.S.C. § 1681(q), by posing as a paralegal to obtain credit information on several individuals. On May 27, 1997, the matter proceeded to trial in front of the Honorable Karl S. Forester. Toward the end of the first day of trial, Gantley moved the district court to admit the results of a polygraph examination he had taken voluntarily. Judge Forester denied the motion. The parties completed the presentation of their cases and the jury began deliberations on the afternoon of May 28, 1997. After more than a full day of deliberations, the jury declared itself hopelessly deadlocked. Judge Forester declared a mistrial and set the matter down for retrial to begin June 23, 1997.
5
The second trial began as scheduled. Early on June 23, 1997, Gantley again moved the district court to admit the results of his voluntary polygraph examination, and the district court again denied this motion. The parties then completed voir dire and opening statements, and the government completed the presentation of its case.
6
Gantley began the presentation of his case on the morning of June 24, 1997 by taking the witness stand. After Gantley completed his testimony on direct examination, the government's attorney, Mr. Taylor, began cross-examination. Within less than a minute's time, and despite the district court's twice having ruled he could not do so, Gantley attempted to bolster his veracity by mentioning he had taken a polygraph examination. The trial transcript reveals the following exchange between Gantley and Taylor, beginning with Taylor's very first question on cross-examination:
7
Q. Mr. Gantley, you have given a different version of that first conversation on March 13th where you signed up with the credit bureau than was given by Steve and Deryl. You recognize that, don't you?
8
A. Absolutely.
9
Q. You were here during their testimony; correct?
10
A. Sure.
11
Q. And you heard them testify that you told them you were a paralegal, newly in town, had not set up an office yet, you were going to be doing collections for attorneys, and their entire explanation, you heard all that; right?
12
A. Yes, sir.
13
Q. And you're saying to this jury that you told them that you were doing an investigation, you were up-front with them, and that if anybody violated the Fair Credit Reporting Act, it was them?
14
A. Sir, you're asking me three questions at one time. Would you please give them to me one at a time?
15
Q. Is it your position that it was them who assisted you in what we now know to be a violation of the Fair Credit Reporting Act?
16
* * * * * *
17
A. The answer is they assisted me in nothing. If the Fair Credit Reporting Act was violated, they did it themselves. I was not part of that.
18
Q. That's correct. If you're telling the truth, they're the ones who violated the Act; right?
19
A. Yes, sir, and you know I'm telling the truth, because you saw the polygraph test I took in the past--
20
MR. TAYLOR: Your Honor--
21
THE WITNESS:--that was used--
22
THE COURT: Mr. Gantley, Mr. Gantley, sit down and be quiet. Members of the jury, I'm going to excuse you to the jury room.
23
Joint Appendix ("J.A.") at 122-24.
24
The parties have characterized the emotional component of Judge Forester's initial reaction as quite strong. After the jury left the courtroom, Judge Forester made the following statements:
25
THE COURT: Mr. Gantley, I'm of the opinion that this was a purposeful statement by you, knowing that you violated the Court's order with regard to the polygraph examination to unlawfully influence the jury here today. I don't like it.
26
THE WITNESS: Sir, that's not--
27
THE COURT: I'm holding you in contempt of court for this obvious, this obvious attempt you have made to influence this jury illegally. So I'm going to--will be filing charges against you on that. I'm going to declare a mistrial. This is over. This statement was made--just unbelievable. I've never had this happen before in nine years, but I think that this is the sort of thing that Mr. Gantley has done in the past and he continues to do in the future. So there is a mistrial. I'm going to ask Madame Clerk to do whatever is appropriate to charge Mr. Gantley with contempt of court, and I will recuse and will not be involved in that. So, Mr. Gantley, you may step down.
28
* * * * * *
29
J.A. at 124-25. Judge Forester then ordered Gantley to be released on bond pending retrial and asked counsel to approach the bench.
30
The immediately subsequent colloquy between Judge Forester and counsel was not preserved on the record. When the district court went back on the record, however, Judge Forester made the following statements:
31
THE COURT: After reflecting on the contempt of court matter, the Court is of the opinion that Mr. Gantley probably, being the type individual that he is, probably did not know what he was doing and, as has been said, he's a combative-type personality, and so I am going to withdraw any reference to contempt of court with regard to Mr. Gantley, and the Court will recuse from this case and it will be under the general orders and it will be assigned to Judge Wilhoit for reassignment. All right. Anything else?
32
J.A. at 125. In response to this last question, Gantley's attorney replied "No, Your Honor." Judge Forester then called the jury back into the courtroom and explained as follows:
33
THE COURT: Members of the jury, I apologize to you for wasting two days of your time. I don't know if you know what happened there, but Mr. Gantley, while testifying, indicated that he had taken a polygraph examination and that he had passed that examination. I think he got that far. Well, I had previously ruled that there could be no reference to a polygraph examination because the polygraph has not reached the degree of reliability to where results of such an examination are accepted by courts as evidence. They're not accepted by courts as evidence anywhere that I know of, and I had made it clear that this was not going to be accepted. But he went ahead and mentioned the polygraph examination. Well, this should not have happened. So I have declared a mistrial, and we'll have to try again some other day with some other jury. So I do apologize to you for taking up two days of your time.
34
So we'll excuse you now. Thank you very much.
35
J.A. at 126-27. After the jury left the courtroom, Judge Forester again asked counsel if there was "anything else," and counsel again said "no."
36
Gantley's case was reassigned to the Honorable Joseph M. Hood, who set a third trial date of August 21, 1997. Nine days before trial, however, Gantley filed a motion to dismiss the information, asserting that a third trial would violate the Fifth Amendment's prohibition against double jeopardy. Judge Hood held a hearing on this motion on August 18, 1997. During this hearing, counsel for the parties explained to Judge Hood what had happened during Judge Forester's "off-the-record" conference with counsel, which had occurred just after Gantley mentioned his voluntary polygraph examination. Specifically, the parties explained to Judge Hood, essentially without dispute, that: (1) Judge Forester was initially very angry with Gantley but he quickly "cooled off;" (2) Mr. Taylor, on behalf of the government, suggested to Judge Forester that there might be an alternative to declaring a mistrial;1 (2) Gantley's counsel then raised an "[additional] concern that the district court's admonition of Gantley in the presence of the jury may have been prejudicial," appellant's brief at 5; (3) Judge Forester concluded that, in fact, the jury's perception of Gantley's statement and his own reaction to it might seriously prejudice Gantley's right to a fair trial, so that Taylor's suggested alternative was unacceptable; and (4) Judge Forester also reconsidered his decision to hold Gantley in contempt of court, and decided to reverse that decision. J.A. at 128-49.
37
After Judge Hood heard all of this evidence during the hearing, he issued a written Order formally denying Gantley's motion to dismiss the information. In this Order, Judge Hood concluded that Judge Forester's declaration of a mistrial was a "manifest necessity" because of "the potential bias of the jury as a result of the defendant's statement regarding the polygraph." J.A. at 16. Gantley then moved to stay further proceedings pending an interlocutory appeal, and Judge Hood granted that motion.
38
II. Analysis.
39
In United States v. Cameron, 953 F.2d 240, 243 (6th Cir.1992), this Court held that the denial of a motion to dismiss on double jeopardy grounds is immediately appealable. See also Abney v. United States, 431 U.S. 651, 655-56 & 659-60, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (holding that "a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. § 1291"). Accordingly, we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de novo a district court's denial of a motion to dismiss on grounds of double jeopardy. Cameron, 953 F.2d at 243. However, "the decision of a trial court to declare a mistrial based on potential juror bias is entitled to special respect." Harpster v. Ohio, 128 F.3d 322, 330 (6th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998); see Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ("the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by [an] improper comment").
40
The Constitution directs that no person shall twice be put in jeopardy of life or limb for the same offense, whether by being twice punished or twice tried. U.S. Const. amend. V; Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The Double Jeopardy Clause, however, does not act as an absolute bar to reprosecution in every case. When a mistrial has been declared, "reprosecution is generally permissible if the declaration came at the request or with the acquiescence of the defendant." Cameron, 953 F.2d at 243 (citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)). Alternatively, "in the absence of such consent, reprosecution is not barred where a 'manifest necessity' exists to declare a mistrial in the defendant's initial prosecution." Id. (citing United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976) (per curiam)). Put more simply, "[o]nce jeopardy attaches, prosecution of a defendant before a jury other than the original jury, excluding any contemporaneously empaneled and sworn alternates, is barred unless (1) there is a 'manifest necessity' for a mistrial or (2) the defendant either requests or consents to a mistrial." Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir.1996).
41
In this case, the government argues that the double jeopardy bar should not apply, both because Gantley consented to the declaration of a mistrial and because a mistrial was manifestly necessary. We find that both of these arguments are well-taken.
42
A. Consent.
43
The parties agree that Gantley never explicitly consented to Judge Forester's decision to declare a mistrial. Immediately after Gantley testified that he had taken a polygraph examination, Judge Forester exclaimed, "I'm going to declare a mistrial." Rather than dismissing the jury immediately, however, Judge Forester discussed the matter further with counsel for both parties and considered whether there was a viable alternative to declaring a mistrial. After undertaking this consideration, Judge Forester remained of the belief that declaring a mistrial was necessary. The record does not show that Judge Forester or anyone else ever explicitly asked Gantley or his counsel whether they consented to a mistrial, but the record does reveal that neither Gantley nor his counsel ever objected. This is true even though: (1) there was an opportunity for Gantley's counsel to raise such an objection during the "off-the-record" colloquy between counsel and Judge Forester; and (2) Judge Forester twice gave Gantley's counsel an opportunity to raise any objection to the district court's proposed course of action.2
44
The government argues that, even though Gantley never explicitly consented to a mistrial, he impliedly consent to one. This Court has held that a defendant's consent to a declaration of mistrial "should be implied 'only where the circumstances positively indicate a defendant's willingness to acquiesce in the [mistrial] order.' " Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir.1991) (quoting Jones v. Hogg, 732 F.2d 53, 57 (6th Cir.1984)) (brackets in original); see Malinovsky v. Court of Common Pleas of Lorain County, 7 F.3d 1263, 1272 (6th Cir.1993), cert. denied, 510 U.S. 1194, 114 S.Ct. 1300, 127 L.Ed.2d 652 (1994) ("Sixth Circuit precedent is clear that consent is implied only if there is some positive indication from the record of the defendant's willingness to consent to declaration of a mistrial"). The question in this case, therefore, is whether Gantley's failure to object to a mistrial can be construed as a "positive indication" of his consent to a mistrial.
45
In United States v. Ham, 58 F.3d 78 (4th Cir.1995), cert. denied, 516 U.S. 986, 116 S.Ct. 513, 133 L.Ed.2d 422 (1995), the Fourth Circuit Court of Appeals observed that "a number of circuits have held that a defendant impliedly consents to a mistrial if the defendant had a duty to object to the mistrial but fails to do so." Id. at 83 (citing cases). The Ham court suggested, however, that this Circuit's requirement of a "positive indication" of consent circumscribes those circumstances where consent may be implied more narrowly than does the test employed in other circuits. Id.
46
In fact, this Court's test for whether a defendant has impliedly consented to a mistrial is not materially different from the test used by other Circuits. See, e.g., United States v. Goldstein, 479 F.2d 1061, 1067 (2nd Cir.1973), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973) ("[c]onsent need not be express, but may be implied from the totality of circumstances attendant on a declaration of mistrial"); Ham, 58 F.3d at 83 n. 3 (noting that even though it believed "the Sixth Circuit does not follow the majority view, the First Circuit has concluded that the Sixth Circuit has actually not set a different standard") (citing United States v. DiPietro, 936 F.2d 6, 10-11 (1st Cir.1991)). Rather, this Circuit simply insists on an especially careful examination of the totality of circumstances, to ensure a defendant's consent is not implied when there is a substantial question of whether the defendant did, in fact, consent. Because there are "drastic consequences attached to a finding of consent" to a mistrial, Glover, 950 F.2d at 1239, we have refused to infer consent merely because a defendant did not object to the declaration of a mistrial. Id. at 1240 (noting that the totality of the circumstances suggested "an objection [by the defendant] would have been difficult and probably futile"). Rather, a defendant's failure to object to a mistrial implies consent thereto only if the sum of the surrounding circumstances positively indicates this silence was tantamount to consent.3
47
Because simple silence can be a positive indication of consent to a mistrial in some circumstances, Gantley cannot avoid implication of consent merely by noting he did not expressly consent; his absence of explicit assent must be examined in light of all the circumstances surrounding it. In this case, Gantley's failure to object to a mistrial occurred only after Judge Forester: (1) heard Gantley's counsel's suggestion that Judge Forester's own reaction caused Gantley incurable prejudice; (2) considered the possibility of an alternative course of action; (3) decided there was no viable alternative to a declaration of a mistrial; and (4) essentially invited an objection by asking counsel if there was "anything else" to address.
48
In sum, we conclude that Sixth Circuit precedent does permit us to find Gantley impliedly consented to the declaration of a mistrial, even if Gantley's "positive indication" of consent was in the form of silence. Further, we believe that the totality of the circumstances in this case justifies the conclusion that Gantley did, in fact, consent to Judge Forester's declaration of a mistrial.4
49
B. Manifest Necessity.
50
The phrase "manifest necessity" is a term of art, which "has come to mean not absolute necessity, but rather a 'high degree' of necessity." Glover, 950 F.2d at 1240. The power of a judge to declare a mistrial based on manifest necessity must "be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes." United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824). Because it is impossible to catalog every circumstance where it has become manifestly necessary to declare a mistrial, the manifest necessity test has "never been applied in a mechanical fashion, but is viewed as a flexible standard." Cameron, 953 F.2d at 244 (citing Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973)). "Determining whether a high degree of necessity was presented calls for an analysis of each case upon its particular facts." Id.
51
A trial court "is not constitutionally required to make an explicit finding of 'manifest necessity,' nor to establish on the record the full extent of its carefully considered basis for the mistrial." Glover, 950 F.2d at 1241 (citing Washington, 434 U.S. at 516-17, 98 S.Ct. 824). One of the factors a reviewing court will consider in determining whether the trial court abused its discretion by declaring a mistrial, however, is whether the trial court showed sufficient caution before its declaration. Thus, in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), the Supreme Court upheld a trial court's declaration of mistrial only after noting that "the trial judge did not act precipitately.... On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial." Id. at 515-16, 98 S.Ct. 824.5
52
It is clear that a great potential for jury bias existed at the time Judge Forester declared a mistrial. This is true for two reasons. The first source of jury bias was Gantley's statement, made in direct violation of a court order, that he had taken a polygraph test. Gantley's intent in making this statement obviously was to bolster his own testimony, to the prejudice of the government.6 Evidence of polygraph examination results is generally inadmissible. United States v. Blakeney, 942 F.2d 1001, 1014 (6th Cir.1991), cert. denied, 502 U.S. 1035, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992). The reason for this is "the general skepticism that pervades the scientific community concerning the reliability of polygraph examination." Wolfel v. Holbrook, 823 F.2d 970, 974 (6th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988). Allowing a jury to hear evidence of the results of a lie detector test is "highly prejudicial" in a case like Gantley's, because "the entire case hinge[s] on whether the jury believe[s] [Gantley's] version of the facts." Id. at 973.7 Thus, the jury could not help but suffer some unfair bias against the government by virtue of Gantley's statement regarding his having taken a polygraph examination. Indeed, at least two other federal courts have affirmed declarations of mistrial after a witness testified about polygraph examination results, concluding that the strong possibility of jury bias undermined confidence in a fair outcome. See Ferby v. Blankenship, 501 F.Supp. 89, 92 (E.D.Va.1980) (on habeas review, affirming the state trial court's conclusion that, after a witness testified the defendant was willing to take a lie detector test, a mistrial was appropriate because "[curative] instructions could not preserve the integrity of the verdict"); Pettigrew v. Hardy, 403 F.Supp. 869, 870 (D.Ariz.1975) (on habeas review, affirming the state trial court's conclusion that a mistrial was necessary after the defendant testified he passed a lie detector test).
53
The second source of jury bias was Judge Forester's strong reaction after Gantley mentioned the polygraph examination. Gantley candidly admits this point: "a mistrial may have become necessary due to the unfavorable light [Gantley] was placed in before the jury by the admonishment directed at him by the district court." Appellant's brief at 15. Gantley's concession is well-founded because, as Judge Forester himself perceived, the jury's observation of Judge Forester's displeasure toward Gantley could have seriously and unfairly prejudiced the jury against Gantley. Not only is there a "fundamental need for judicial neutrality" in every case, but the jury must also perceive the judge as neutral--" 'justice must satisfy the appearance of justice.' " Anderson v. Sheppard, 856 F.2d 741, 746, 747 (6th Cir.1988) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954)). We have no reason to believe (and the parties do not argue) that Judge Forester was anything but neutral in fact. But the parties and Judge Forester rightly believed that the jury might have come to think Judge Forester was inclined against Gantley. The jury's observation of Judge Forester's understandable, if short-lived, anger against Gantley is likely to have caused some level of unfair jury bias.
54
Gantley focuses only on Judge Forester's immediate reaction and argues that: (1) Judge Forester declared a mistrial based only on the possible jury bias stemming from Gantley's comment, and not any possible jury bias stemming from Judge Forester's reaction; and (2) Judge Forester declared a mistrial without first considering any alternatives. We disagree with both these assertions. Although Judge Forester immediately expressed his intention to declare a mistrial, it is undisputed that he reconsidered this decision after discussing alternatives. Further, Judge Forester joined in the concern expressed by Gantley's counsel about possible juror bias caused by his reaction to Gantley's testimony. In the end, Judge Forester obviously concluded that a mistrial was necessary because the sum of the potential unfair jury bias was too great--that is, that the "totality of the circumstances" made a mistrial manifestly necessary.
55
We are required to "accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by [an] improper comment" during trial. Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. 824. In this case, it would not have been unreasonable for Judge Forester to conclude that the potential jury bias stemming from Gantley's comment, alone, was excessive and required a mistrial; a fortiori, it was not unreasonable for Judge Forester to conclude that the total potential jury bias stemming from both Gantley's comment and Judge Forester's reaction to it made a mistrial manifestly necessary.
56
A defendant's "right to have his case resolved by a particular tribunal will be subordinate to the larger interest of the public in 'fair trials designed to end in just judgments.' " Cameron, 953 F.2d at 243 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). In this case, Judge Forester reasonably concluded that potential jury bias created too significant a risk that any final judgment would not be impartial. Because we believe there existed a high degree of necessity for declaring a mistrial and that Judge Forester reached this conclusion only after considering whether there were other, less severe alternatives, we conclude that Gantley's interlocutory appeal is not well-taken. We affirm Judge Hood's denial of Gantley's motion to dismiss the criminal information. This case is remanded for trial.
57
IT IS SO ORDERED.
58
NATHANIEL R. JONES, Circuit Judge, concurring.
59
I agree in full with the panel's well-founded conclusions that manifest necessity for a mistrial existed in this case and that Gantley impliedly consented to the mistrial. I write separately only to emphasize that, in my judgment, the court's decision today is not an abandonment of our usual preference that a district court issue curative instructions when a witness makes an impermissible reference to a polygraph examination before a jury. The district court's failure to do so, under the facts of this case, was not reversible error.
60
This court has refused to adopt a per se rule that a manifest necessity for a mistrial is present simply because a witness utters the words "polygraph evidence." United States v. Odom, 13 F.3d 949, 957 (6th Cir.1994); United States v. Walton, 908 F.2d 1289, 1293 (6th Cir.1990); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.1988). Instead, we have repeatedly upheld the use of curative or cautionary instructions to juries explaining that impermissible references to unreliable polygraph examinations are improper and to be disregarded. See United States v. Epley, 52 F.3d 571, 578 & n. 8 (6th Cir.1995); Odom, 13 F.3d at 957; Walton, 908 F.2d at 1294. Granted, we have also found circumstances where not even a curative instruction could "unring [the] bell" of a prejudicial reference to a polygraph examination. See United States v. Murray, 784 F.2d 188, 189 (6th Cir.1986) (curative instruction not enough to remedy experienced FBI agent's deliberate statement that he had asked defendant to take a polygraph test). However, it cannot be doubted that our precedents strongly favor a curative admonition to the jury when a witness makes an impermissible reference to a polygraph examination.
61
Based upon the record in this case as artfully reconstructed in the panel opinion, I am of the view that the issuance of curative instructions in this case would have been an exercise in futility. Unlike the above-cited cases, the district judge himself contributed to the tainting of the proceedings. In addition to the inherent prejudice that Gantley's improper polygraph reference injected into the trial, I believe it very likely that the district court's subsequent visible outburst seriously impaired Gantley's standing in the eyes of the jury. Thus, based upon the totality of the circumstances as articulated by the panel opinion, I agree that the district court's declaring a mistrial was justified by manifest necessity in this case.
*
The Honorable Kathleen O'Malley, United States District Judge for the Northern District of Ohio, sitting by designation
1
The record does not reveal precisely what Mr. Taylor's suggested alternative was; presumably, however, it involved the giving of a limiting or curative instruction
2
Judge Forester asked Gantley's counsel whether there was "anything else" two times--once immediately after going back "on-the-record" after the colloquy with counsel and once after he excused the jury
3
Indeed, consent can only be explicit or implicit; this Circuit's recognition that a defendant may impliedly consent to a mistrial requires us to acknowledge that silence may be a positive indication of consent, in the right circumstances
4
Actually, Gantley's counsel's affirmative suggestion of possible prejudice stemming from Judge Forester's reaction, followed by counsel's explicit negative response when asked if there was anything else the Court needed to address, brings into question Gantley's assertion that he was silent. These circumstances lend further support to our conclusion that a positive indication of Gantley's consent to a mistrial is evident in the record
5
Another important factor a trial court should consider when calculating the degree of necessity for declaring a mistrial is "who sought the mistrial." Malinovsky, 7 F.3d at 1269. If "a declaration of mistrial [is] granted at the behest of the prosecutor or on the court's own motion," then the court must balance "the right of [the] defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him ... against the public interest in insuring that justice is meted out to offenders." United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (quoting Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)) (emphasis added). But if the "defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution." Id. at 93, 98 S.Ct. 2187 (emphasis added). Here, Gantley did not move for a mistrial, but he did create the circumstances making it necessary. This factor adds at least some weight to our conclusion that the declaration of a mistrial in this case is fair. To hold otherwise would allow a defendant to avoid prosecution by creating error purposefully while refusing to move for a mistrial
6
Although Gantley contends he actually never stated the results of this examination, "it would have to be a pretty unsophisticated jury not to figure out that he had passed the test or it wouldn't have been mentioned." J.A. at 131 (Hood, J., during Aug. 18, 1997 hearing). This is especially true when the statement is examined in its entirety: Gantley premised his reference to the polygraph examination with the clause, "... and you know I'm telling the truth, because...." J.A. at 123
7
Gantley does not challenge Judge Forester's ruling excluding evidence of the polygraph examination. It is clear, however, that Judge Forester's ruling was correct, given that "there was no agreement or stipulation between the parties that the results of the examination, whatever they might reflect, would be admissible in subsequent litigation and hence, [Gantley] had no adverse interest at stake to cloak his willingness with credibility." Wolfel, 823 F.2d at 974 | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1547389/ | 159 B.R. 665 (1993)
In re ALMAC'S INC., Debtor.
Bankruptcy No. 93-12090.
United States Bankruptcy Court, D. Rhode Island.
October 15, 1993.
*666 Edward J. Bertozzi, Jr., Edwards & Angell, Providence, RI, for debtor.
Warren H. Pyle, Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, MA, for United Food and Commercial Workers' Union Local 328.
Allan M. Shine, Winograd, Shine & Zacks, P.C., Providence, RI, for Wetterau.
Michael A. Silverstein, Hinckley, Allen & Snyder, Providence, RI, for Creditors' Committee.
Steven M. Ellis, Goodwin, Procter & Hoar, Boston, MA, for Bondholders' Comm.
Office of the U.S. Trustee, Sheryl Serreze, Boston, MA.
DECISION AND ORDER
ARTHUR N. VOTOLATO, Bankruptcy Judge.
Heard on October 8 and 15, 1993, on the Debtor's emergency motion for an order authorizing it to implement interim changes to the terms, conditions, wages, benefits or work rules provided under the collective bargaining agreement (the "Agreement" or "Contract") between it and the United Food and Commercial Workers' Union Local 328 ("the Union"), pursuant to 11 U.S.C. § 1113(e). The Union vigorously opposes any modification of the Union contract at this time, particularly concerning wage cuts.
Specifically, the Debtor is requesting two interim modifications to the Agreement, effective immediately: (1) a fifteen percent (15%) reduction in the wages of all employees covered by the Contract; and (2) that employees downgraded from full-time to part-time positions receive part-time wages and reduced benefits, then reduced by fifteen percent.
To satisfy its burden under § 1113(e) for the requested modifications, the Debtor must establish that the relief it seeks is "essential to the continuation of the Debtor's business, or in order to avoid irreparable damage to the estate...." 11 U.S.C. § 1113(e); see also, In re United Press Int'l, Inc., 134 B.R. 507, 514 (Bankr. S.D.N.Y.1991); In re Salt Creek Freightways, 46 B.R. 347, 350 (Bankr.D.Wyo.1985); In re Wright Air Lines, Inc., 44 B.R. 744, 745 (Bankr.N.D.Ohio 1984).
After hearing, we are left with uncontradicted and unimpeached testimony and documentary evidence which establishes by a clear and convincing margin that the requested modifications are not only essential to the continued operations of Almac's, but are vital to any hope of a successful reorganization. The Debtor has also demonstrated that such changes are necessary to avoid irreparable damage to the estate (i.e. the almost immediate shutdown of the entire grocery store chain). These findings and conclusions are based upon actual figures to date, as well as the unrefuted projections of operations through December, 1993.[1] The Debtor has represented, and it is echoed by its major supplier, Wetterau, that without the requested relief Almac's will be forced to cease its operations by the end of this month.[2]
The Union focuses almost exclusively on the hardship that will be felt by the Almac's' employees from any wage or benefit reduction ordered in these difficult economic times. The Court is genuinely sympathetic with this concern, but given the undeniable alternative of a complete loss *667 of all jobs by the union employees, as well as the nonunion management staff (who voluntarily took a 15% cut in September[3]), the lesser of the two evils is most definitely the proposed ten week, fifteen percent pay cut and benefit reduction. Although as a legal matter the Court does not find § 1113(e) to contain hardship as a defense to a debtor's proposed modification based upon survival, we do believe there is an implicit requirement for the debtor to demonstrate that the proposed modification is the most reasonable, just and cost effective measure it can take to avoid imminent liquidation.[4] Given this test, the unrefuted evidence before us, and the fact that the Union has presented no alternate proposal to reduce losses, we find that Almac's has satisfied its § 1113(e) burden.[5]
In the absence of offering contradictory or rebuttal evidence to the Debtor's case, Union counsel has attempted to manipulate the actual figures, to no avail however, and his refusal to recognize the gravity of the situation is counterproductive to his clients' cause. The actual and projected losses of the company since its filing for bankruptcy on August 6 are as follows:
Four weeks ended
9/4/93 Loss of $539,000;
Four weeks ended
10/2/93 Loss of $539,000;
Four weeks ended
10/30/93 Loss of $839,000;
Four weeks ended Loss of $1,056,000;
11/27/93
Four weeks ended
12/25/93 Loss of $877,000;
TOTAL POSTPETITION LOSS: $3,850,000.[6]
Despite being furnished with such alarming financial information, the Union chooses to ignore the facts and puts its head in the sand while embarking on a fictional odyssey, i.e. that things are not as dire as portrayed by the Debtor. The Union is basically asking that all concerned, including the company, its employees, Wetterau, over $12 Million in trade debt creditors, the shareholders, and this Court, just sit still, and wait, to see what happens (without any change in Union wages or benefits, however) while the Company loses $200,000 per week, and with only $500,000 in cash reserves remaining at month's end. It is painfully obvious that without the requested emergency relief, Almac's will be out of business within two to three weeks. The willingness of the Union leadership to gamble that the Debtor's figures are untruthful or grossly inaccurate represents a disservice to the employees, and is not in their best interest at this time.
Finally, there has been a great deal of discussion about the Debtor's concept of the "community of pain" to be shared by all interested parties, and that the proposed temporary wage and benefit modifications constitute the employees' share in this pain. The Union attempts to spurn this theory by mischaracterizing facts involving other creditors, as well as the professionals *668 in the case.[7] Based upon all of the evidence, we simply cannot accept the Union's argument on this point and remind the Union that substantial creditors of this estate have taken substantial hits already, and likely will be required to endure even more financial pain. Wetterau, for instance, is owed in excess of $8 Million and the unsecured creditors are collectively owed $12 Million. We cannot imagine that such losses are not "painful" to these creditors.
Based upon the record before us (the Union has offered no direct evidence), the issue boils down to the following: Which is worse being required to accept a temporary 15% wage cut plus benefit reductions, which at least would allow for the possibility of reorganization, or to see all of the Almac's' jobs disappear immediately and permanently? This question answers itself.
Accordingly, considering the critical and still worsening cash position of Almac's, together with the fact that vendors and suppliers will stop shipments upon any default, we find that the Debtor has clearly met its burden under § 1113(e). Its business plan is due by November 1, 1993, and in the circumstances a fast track plan and disclosure statement will certainly be expected.
The Union has also argued that if the Debtor is granted all or part of the relief it seeks, then the employees should be given a "super-priority" lien under 11 U.S.C. § 1113(f) for the value of the concessions they were forced to make, thereby protecting their interests in the event of a liquidation. We conclude that § 1113(f) does not create a super-priority lien in these circumstance, and to the extent that our ruling in In re Coast to Coast Construction Co., Inc., BK. No. 93-10463 (Bankr.D.R.I. March 22, 1993) is inconsistent with our ruling herein, In re Coast to Coast, is overruled.[8]
Section 1113(f) states, "[n]o provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section." 11 U.S.C. § 1113(f) (emphasis added). In cases where employees were given either a super-priority or priority lien, the debtor was attempting to modify the collective bargaining agreement unilaterally, without bankruptcy court authorization for interim modifications under § 1113(e) or court approval to reject a union contract under § 1113(c). See, e.g., United Steelworkers v. Unimet Corp. (In Unimet Corp.), 842 F.2d 879 (6th Cir.), cert. den. 488 U.S. 828, 109 S. Ct. 81, 102 L. Ed. 2d 57 (1988); In re Arlene's Sportswear, Inc., 140 B.R. 25 (Bankr.D.Mass.1992); In re Golden Distribs., Ltd., 134 B.R. 760 (Bankr.S.D.N.Y. 1991), aff'd 152 B.R. 35 (S.D.N.Y.1992).
In the instant case, the requested interim modifications have not been unilaterally implemented by the Debtor, but rather are authorized by this Court as a result of the Debtor's compliance with § 1113(e). Thus, the granting of a super-priority lien in this instance is not warranted by § 1113(f) or by applicable case law.
Accordingly, the Debtor's request for authority to modify the collective bargaining agreement according to the terms described in its September 16, 1993 proposal to the Union is GRANTED, and the Union's *669 request for a super-priority lien is DENIED.
Enter Judgment consistent with this opinion.
NOTES
[1] According to two members of Wetterau's top management, Edward Brouillet and James Campbell, Almac's' projections for the months of November and December are overly optimistic and, even with a fifteen percent employee pay cut and benefit decreases, these reductions will not stop the losses entirely.
[2] Wetterau has expressed its intention to file a motion to convert the case to Chapter 7 if present losses of $200,000 per week are not immediately controlled.
[3] In this case, management has voluntarily agreed to a number of concessions to assist Almac's in cutting costs and to help stop the financial bleeding of the company, including: (1) a five percent wage reduction in August; (2) an additional ten percent cut in September; (3) the giving up of one week's vacation time; (4) a two year wage freeze on store managers and customer service personnel; and (5) a reduction of twenty employees in administrative staff. To date, the Union has made no concessions, and as far as this Court is aware, has come forth with no reasonable suggestions or offers to assist the Debtor through this financial crisis. On the contrary, the evidence is that the employees, concerned over the likelihood of an abrupt shutdown of the company, are using sick and vacation time as it accumulates, which further erodes the Debtor's financial condition, and its ability to reorganize.
[4] In other cases, this Court has ordered across the board reduction of all employee compensation, union and nonunion. Here, the nonunion employees voluntarily took such cuts two months ago.
[5] In this regard, we find that the labor costs of the Debtor, vis-a-vis the industry average, are disproportionately high, and contribute in a major way to the Company's continued unprofitability, and that the situation is exacerbated by store closings, layoffs and "bumping" all of which result in a higher hourly wage, and fewer service personnel.
[6] The source of funds to cover these enormous shortages, is money that Almac's failed to pay its leading vendor, Wetterau, for product delivered the week prior to the filing. Without this $4 Million, Almac's would probably have been forced to shut down in August, with all employees losing their jobs three months ago.
[7] The Union's argument that Almac's would be profitable but for the additional expense of the bankruptcy administration, is rejected. Certainly these costs were not present when Almac's was forced to file Chapter 11 in August. Without professionals administering the case, there can be no hope of a successful reorganization and the jobs will be lost for sure, and to suggest that professionals should be dispensed with or expected to perform services without compensation really deserves no comment. The reality in this case is that the results obtained by the Debtor, with the assistance and expertise of the professionals, is the only hope that the employees have to keep their jobs with Almac's.
[8] Lest we appear capricious, it should be noted that our granting of a super-priority in Coast to Coast was limited to a liquidation scenario, and was not available upon a successful reorganization. Moreover, in that case we were not provided with any persuasive legal authority or argument in opposition to the Union's request. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3345493/ | The plaintiff, an attorney, appeals a decision of the statewide grievance committee reprimanding him for violating rule 1.15(b) of the Rules of Professional Conduct by failing to safeguard the funds of a client or a third party.
The complaint initiating the grievance procedure against the plaintiff was filed by attorney Mark J. DeAngelis, a former associate of the plaintiff's law firm. The matter was presented to the Windham grievance panel, which, on reviewing the complaint, the plaintiff's *Page 349
response and supporting affidavits and other documents, found probable cause that the plaintiff violated rules 1.15 (safekeeping of property) and 8.46(b) and (c) (misconduct) of the Rules of Professional Conduct. The matter was heard then by a reviewing committee of the statewide grievance committee, consisting of attorney J. Patrick Dwyer, Lawrence J. Fagan and James P. Wells. The plaintiff was represented by counsel. The majority of the reviewing committee rendered a pro posed decision in which it found by clear and convincing evidence that the plaintiff violated rule 1.15(b) of the Rules of Professional Conduct and recommended that the statewide grievance committee reprimand the plaintiff. Panel member Dwyer dissented. The statewide grievance committee adopted the proposed decision of the reviewing committee and reprimanded the plaintiff.
The facts found by the reviewing committee are as follows. Attorney Raymond Parlato, a partner in the plaintiff's firm, represented Deborah Wilson in a personal injury action that was settled on September 3, 1987 for $38,000. Parlato deducted $12,666.66 for attorney's fees and $226.16 for costs. He also retained in escrow $6,836.06 to pay a no-fault lien of $2,981.06 and doctor and hospital bills totaling $3,854.17. The balance of $18,271.12 was paid to Wilson.
Thereafter, Parlato negotiated with the no-fault insurance carrier to pay Wilson's outstanding medical bills. He succeeded in obtaining funds and paid Wilson's medical bills with them.
The record indicates that the $2,981.06 escrowed from the settlement proceeds to pay the no-fault lien was never paid to the no-fault carrier. The $3,854.17 escrowed from the settlement proceeds to cover Wilson's outstanding bills was never used to pay medical providers. The record further reveals that Parlato collected an additional $3,748.18 from the no-fault carrier. *Page 350
After all of Wilson's medical bills were paid, $10,584.24, (the original escrow amount of $6,836.06 and the additional amount of $3,748.18) remained in the plaintiff's clients' funds account attributable to the Wilson case. In August, 1989, the plaintiff withdrew from his clients' funds account to his firm's order a check for $6,753.76 for services allegedly rendered by Parlato following settlement of the case. The balance of the $10,584.24, or $3,830.48, was disbursed to Wilson in two separate checks on September 25, 1991 ($1,666.67) and on September 25, 1992 ($2,163.81).
The plaintiff testified at the hearing that Parlato was the only one working on the Wilson case and that he charged Wilson for his after settlement services at the rate of $125 per hour. The plaintiff supplied her with an itemized bill totaling $6,753.76. He could not, however, produce a copy of that bill or a record of the hours Parlato purportedly spent.
Parlato testified that when the firm was experiencing a cash flow problem in 1989, he was presented by the firm bookkeeper with a clients' funds check to pay additional legal fees for his services on the Wilson case. He refused to sign it. Parlato also denied submitting time records totaling $6,753.76, for work done after settlement on the Wilson file. The reviewing committee found Parlato's testimony on this point "credible." The plaintiff submitted affidavits from Mr. and Mrs. Wilson stating that they were satisfied with their representation by the plaintiff's firm and with the fee charged. Based on those facts, the reviewing committee stated in its proposed decision adopted by the statewide grievance committee that "the $10,584.24 remaining in the [plaintiff's] trustee account following the payment of Mrs. Wilson's outstanding medical bills belonged either to the no-fault carrier in payment of its lien or to the *Page 351
client, if the carrier waived its lien. We do not find any evidence in the record to support the [plaintiff's] position that $6,753.76 belonged to the firm for legal services rendered on the Wilson case by Attorney Parlato."
Accordingly, the reviewing committee concluded that the plaintiff violated rule 1.15(b) of the Rules of Professional Conduct by failing to safeguard funds of a client or of a third party.
Rule 1.15(b) of the Rules of Professional Conduct provides: "Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property."
Sections 27N (d) and (f) of the Practice Book provide that an appeal to the Superior Court of a decision by the statewide grievance committee reprimanding an attorney shall be "confined to the record" and that "the court shall not substitute its judgment for that of the statewide grievance committee as to weight of the evidence on questions of fact." The role of the court is to determine "`if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct.'" Weiss v. Statewide Grievance Committee,227 Conn. 802, 812, 633 A.2d 282 (1993) quoting Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 234,578 A.2d 1075 (1990).
The court must also determine that the statewide grievance committee met its burden of establishing a *Page 352
violation of the Rules of Professional Conduct by clear and convincing proof. Weiss v. Statewide Grievance Committee, supra, 227 Conn. 812.
In the present case, this court concludes that the facts found by the reviewing committee and adopted by the statewide grievance committee are supported by the record and actually, were not even disputed by the plaintiff in this appeal. Those facts establish that the money held in the plaintiff's clients' funds account belonged to either the no-fault carrier or to the client, and they did not belong to the plaintiff for the purported legal services of Parlato. The plaintiff's taking of those escrow funds for himself constituted, by clear and convincing proof, a violation of rule 1.15.
The plaintiff contends that the fact that the reviewing committee's proposed decision was not unanimous indicates a lack of clear and convincing proof. The common law rule is that the decision of the majority of a collective body constitutes the decision of the body. Levinson v. Board of Chiropractic Examiners,211 Conn. 508, 539, 560 A.2d 403 (1989). The statewide grievance committee has adopted such a rule. Statewide Grievance Committee Rules of Procedure, 1B and 7F (1995). As long as unanimity is not required, a finding by the majority of the reviewing committee of clear and convincing proof of an ethics violation is sufficient. Moreover, the adoption of the proposed decision of the reviewing committee by the fifteen member statewide grievance committee is the action being appealed from here and there is no indication in the record whether or not that adoption was by a split vote.
The plaintiff raises the question that since the client was satisfied and the no-fault carrier made no claim, what standing did a former dismissed associate have to file a complaint? General Statutes § 51-90e and Practice Book § 27F (a) provide that any person or a grievance *Page 353
panel on its own motion may file a written complaint against an attorney alleging misconduct. Thus, the complaint filed here by an associate of the plaintiff's firm was not only proper but possibly even mandated by rule 8.3 of the Rules of Professional Conduct.
Finally, the plaintiff, noting again the satisfaction of his client and the absence of a claim by the no-fault carrier, questions to whom he violated an ethical duty? The answer is contained in the preamble to the Rules of Professional Conduct: "A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." The purpose of the grievance procedure established by Practice Book § 27A et seq., is to assure that attorneys practicing in this state meet the responsibilities of their several capacities set forth in the preamble and comply with the Rules of Professional Conduct. The ethical duty the plaintiff owed was to his clients (even if they did not complain), to the legal profession, to the courts, and to the people of the state of Connecticut.
A reprimand is a serious disciplinary punishment. It remains forever on an attorney's professional record. On inquiry, it is revealed to institutional clients deciding whether to retain the attorney and to selection commit tees evaluating the attorney for judicial or governmental offices. Having regard for the consequence of the decision of the statewide grievance committee, the court took this appeal very seriously.
After careful deliberation, the court concludes that the record supported the facts found by the reviewing committee, those facts established by clear and convincing proof that the plaintiff violated rule 1.15(b) of the Rules of Professional Conduct, and that the decision of the statewide grievance committee, adopting the findings of the reviewing committee and issuing the *Page 354
reprimand, was not arbitrary, capricious or an abuse of its discretion.
Accordingly, the appeal is dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1736627/ | 802 So. 2d 627 (2001)
STATE of Louisiana
v.
Fair Wayne BRYANT.
No. 2001-KO-0144.
Supreme Court of Louisiana.
November 21, 2001.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919072/ | 912 So. 2d 844 (2005)
Mark HATHCOCK
v.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, Mississippi Farm Bureau Mutual Insurance Company and Anthony Christian.
No. 2003-CA-02653-SCT.
Supreme Court of Mississippi.
March 17, 2005.
*846 Joe Sam Owen, Gulfport, Attorney for Appellant.
Dale Gibson Russell, Charles G. Copeland, Ridgeland, Attorneys for Appellees.
EN BANC.
RANDOLPH, Justice, for the Court:
¶ 1. This appeal arises out of a suit brought by Mark Hathcock ("Hathcock") against Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, Mississippi Farm Bureau Mutual Insurance Company and Anthony Christian[1] (collectively "Farm Bureau") in the Circuit Court of Harrison County, Mississippi, for wrongful discharge, breach of contract, and tortious interference with a business contract. After summary judgment was granted in favor of Farm Bureau, Hathcock learned of a potential conflict of interest involving the trial judge and Farm Bureau. Hathcock filed a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure and Rule 1.15 of the Uniform Circuit and County Court Rules requesting that the trial judge recuse himself and the order granting summary judgment be set aside. *847 The trial court denied Hathcock's motion. It is from this ruling that Hathcock now appeals and asserts as error the trial court's denial of his motion for relief.
FACTS AND PROCEDURAL HISTORY
¶ 2. On June 16, 2000, Farm Bureau terminated the employment of Hathcock. Hathcock brought suit against Farm Bureau seeking damages for wrongful discharge, breach of contract and tortuous interference with a business contract. Farm Bureau answered and filed a motion for summary judgment.[2] On June 24, 2003, Circuit Court Judge Jerry O. Terry, entered his order and judgment granting Farm Bureau's motion for summary judgment.
¶ 3. Hathcock's attorney claims he was informed on or about September 18, 2003, that Jerry O. Terry, Jr., son of Judge Terry, was employed in a supervisory capacity in the Regional Claims Office in Laurel, Mississippi. On October 3, 2003, Hathcock filed a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure and under Rule 1.15 of the URCCC, requesting that the trial court vacate and set aside the summary judgment and transfer the case to another judge.
¶ 4. On November 5, 2003, Judge Terry entered an order denying Hathcock's motion for relief. In the order, Judge Terry stated that his son was employed by Farm Bureau since 1987 as a claims representative and was serving in the capacity of the District Claims Representative in Laurel, Mississippi at the time Hathcock's complaint was filed. Judge Terry's son does not and has not ever supervised claims handled in the counties within the Second Judicial District where Judge Terry sits. Judge Terry stated that for approximately twenty years prior to taking his judicial seat in 1987, he represented Farm Bureau in all of the counties in the Second District. While Judge Terry informed the parties of his relationship with Farm Bureau in all other cases where Farm Bureau was a litigant or insurer for the purpose of providing an opportunity for recusal requests, the record reflects that: (1) he failed to disclose that information in this case, and (2) this is the probably the first time Hathcock's attorney has appeared before Judge Terry. Hathcock timely brings this appeal and asserts that the trial court erred in denying his motion for relief under M.R.C.P. 60(b) and URCCC 1.15. Specifically, Hathcock argues that the trial judge should have recused himself, vacated and set aside the order granting summary judgment in favor of Farm Bureau, and transferred the case to another circuit court judge.
DISCUSSION
¶ 5. On review of a denial of a motion to recuse, this Court "will not order recusal unless the decision of the trial judge is found to be an abuse of discretion." M.R.A.P. 48B. See also Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss.1997) (citing Davis v. Neshoba County Gen. Hosp., 611 So. 2d 904, 905 (Miss.1992)) (where this Court stated: "This Court reviews a judge's refusal to recuse himself using the manifest error standard"). The Court will not reverse the ruling on the motion for recusal unless the trial judge abused his discretion in overruling the motion. Bredemeier, 689 So.2d at 774 (citations omitted).
I. Timeliness of Appeal.
*848 A. Appeal as of Right Under Rule 4.
¶ 6. Hathcock requests that this Court vacate and set aside the order granting summary judgment in favor of Farm Bureau and transfer the case to another judge. Hathcock appeals the trial court's grant of summary judgment under M.R.A.P. 4. Rule 4 provides the guidelines for timely filing of an appeal of right. The appellant must file the notice of appeal with the clerk of the trial court within thirty (30) days after the date of entry of the judgment or order from which the appeal arises. M.R.A.P. 4. Hathcock clearly met the 30 day requirement. The trial court denied the motion for relief on November 5, 2003, and Hathcock filed his notice of appeal on December 4, 2003, exactly twenty-nine (29) days later.
B. Denial of Recusal Under Rule 48B.
¶ 7. Farm Bureau contends that Hathcock's motion is not timely under M.R.A.P 48B, which governs proceedings on a motion for disqualification of a trial judge. When a circuit court judge denies a motion for his recusal, the moving party may, within fourteen (14) days following the judge's ruling, seek review of the judge's action by this Court. M.R.A.P. 48B. The parties in the case sub judice seek interpretation on the application of 48B, specifically challenging the circumstances under which this rule applies.
¶ 8. Despite the undisputable fact that Hathcock filed a timely appeal under M.R.A.P. 4, Farm Bureau argues that Hathcock's appeal is barred under M.R.A.P. 48B because he filed his appeal twenty-nine (29) days after the trial court's issuance of summary judgment. As an emanation from the separation of powers doctrine, this Court has the inherent power to prescribe rules of procedure for Mississippi courts. Newell v. State, 308 So. 2d 71 (Miss.1975). The meaning of "judicial power" as listed in the Mississippi Constitution of 1890 includes the power to make rules of procedure. Miss. Const. art. VI, § 144. This Court has the power to proscribe the Rules of Appellate Procedure, and the Court will not indulge the suggestion to read the rules in such a way as to unnecessarily cause conflict between them. Under M.R.A.P. 4, using the language "shall," requires a party to file notice of appeal within 30 days, while M.R.A.P. 48B, using the language "may," permits a party to seek review within 14 days. Hathcock's appeal is timely because it was filed in accordance with M.R.A.P. 4.
II. Denial of Hathcock's Motion for Relief.
¶ 9. "[T]his Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased." Turner v. State, 573 So. 2d 657, 678 (Miss.1990) (emphasis added). "To overcome the presumption, the evidence must produce a `reasonable doubt' (about the validity of the presumption); that is, one must question whether `a reasonable person, knowing all of the circumstances, would harbor doubts about the [judge's] impartiality.'" Id. (citations omitted). This presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified. Upton v. McKenzie, 761 So. 2d 167, 172 (Miss.2000).
¶ 10. This Court has held in numerous cases that the "evidence presented must produce a reasonable doubt as to a judge's impartiality." Dodson v. Singing River Hosp. Sys., 839 So. 2d 530, 533 (Miss. 2003); see also Tubwell v. Grant, 760 So. 2d 687, 688 (Miss.2000); Beyer v. Easterling, 738 So. 2d 221, 228 (Miss.1999); Walls v. Spell, 722 So. 2d 566, 571 (Miss. 1998). Impartiality is viewed under the "totality of the circumstances" analysis using *849 an objective reasonable "person, not a lawyer or judge," standard. Dodson, 839 So.2d at 534 (citing Collins v. Joshi, 611 So. 2d 898, 903 (Miss.1992) (Banks, J., concurring)) (emphasis in original). In Dodson, this Court stated:
Surely, it could not have been intended that the standard for recusal be so stringent as to warrant the criminal law "beyond a reasonable doubt" burden of proof. Quoting Turner, we stated in Collins that "[t]o overcome the presumption, the evidence must produce a `reasonable doubt' (about the validity of the presumption)." 611 So. 2d at 901. However, in the very next paragraph we stated, "This presumption may only be overcome by evidence showing beyond a reasonable doubt that the judge was biased or not qualified." Id. (emphasis added). In Norton, we quoted Collins in applying the "beyond a reasonable doubt" burden. 742 So. 2d at 131. Also, in Upton, we cited Bredemeier and Turner as the sources of the beyond a reasonable doubt burden when both of those cases clearly applied the "produces a reasonable doubt" burden. Upton, 761 So.2d at 172. See Bredemeier, 689 So.2d at 774 (quoting Turner); Turner, 573 So.2d at 678 (applying "must produce a reasonable doubt" burden).
The stringent "beyond a reasonable doubt" burden is, in our opinion, incompatible with the standard of a hypothetical "reasonable person knowing all the circumstances." The proper standard is that recusal is required when the evidence produces a reasonable doubt as to the judge's impartiality. The misapplication of the "beyond a reasonable doubt" burden in the above-discussed cases was nothing more than a minor oversight and would have led to the same conclusion. We now clarify the burden of proof from what was previously stated in Upton, Norton, and Collins.
839 So.2d at 533.
¶ 11. "When a judge is not disqualified under the constitutional or statutory provisions, `the propriety of his or her sitting is a question to be decided by the judge, and on review, the standard is manifest abuse of discretion.'" Farmer v. State, 770 So. 2d 953, 956 (Miss.2000) (quoting Ruffin v. State, 481 So. 2d 312, 317 (Miss.1985)) (emphasis added). In determining whether a judge should have recused himself, this Court must consider the trial in its entirety and examine every ruling to determine if those rulings were prejudicial to the moving party. Jones v. State, 841 So. 2d 115, 135 (Miss.2003) (citing Hunter v. State, 684 So. 2d 625, 630-31 (Miss.1996)) (emphasis added).
¶ 12. Hathcock argues that Judge Terry should have recused himself because of his prior representation of Farm Bureau and his son's employment relationship with Farm Bureau.
A. Mississippi Constitution of 1890 and Mississippi Code Annotated.
¶ 13. Article 6, Section 165 of the Mississippi Constitution of 1890 states in pertinent part:
No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.
(Emphases added). See also Cashin v. Murphy, 138 Miss. 853, 103 So. 787 (1925) (Judge is not disqualified to sit in a case unless connected with a party by affinity or consanguinity, or pecuniarily interested); see e.g. Nimocks v. McGehee, 97 Miss. 321, 52 So. 626 (1910) (Justice of the peace *850 disqualified under Article 6, Section 165 of the Mississippi Constitution where his first cousin was the president of a corporation, which was one of the parties before him). "Affinity" is defined as: "relationship by marriage between a husband and his wife's blood relations or between a wife and her husband's blood relations." Byrd v. Wallis, 182 Miss. 499, 181 So. 727, 732 (1938) (quoting Webster's International Dictionary (2nd ed.)). "Consanguinity" is defined as: "Kinship, blood relationship; the connection or relation of persons descended from the same stock or common ancestor." Wilmore v. State, 268 Ga.App. 646, 648 602 S.E.2d 343, 345 (2004) (citations omitted).
¶ 14. The Mississippi Code states:
The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties.
Miss.Code Ann. § 9-1-11 (Rev.2002) (emphases added). Had the Legislature of this State desired to include prior representation of a party as grounds for disqualification, it could have chosen to do so.
¶ 15. There is no evidence that Judge Terry is connected with the parties through marriage or blood. There is no evidence that Judge Terry may have had an interest in the outcome of the proceeding, or that he is otherwise precluded by the statute. It is only in causes wherein the judge may have been of counsel[3] that provides for disqualification. It is abundantly clear that Judge Terry was not required to disqualify himself under the Mississippi Constitution or Mississippi Code. See generally Miss. Const. art. VI, § 165; Miss.Code Ann. § 9-1-11.
B. Code of Judicial Conduct, Uniform Circuit and County Court Rules, and Applicable Case Law.
¶ 16. The Mississippi Code of Judicial Conduct provides the standard for disqualification of judges. Code of Judicial Conduct, Canon 3(E). Pursuant to Canon 3, subdivision E, of the Code of Judicial Conduct, "Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law." (Emphasis added). Illustrative of that standard are several instances listed in Canon 3(E)(1)(a)-(d) where the judge should recuse himself/herself, none of which are present here.
¶ 17. Uniform Circuit and County Court Rule 1.15 states: "Any party may move for the recusal of a judge ... if it appears that the judge's impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law."
¶ 18. In his order denying Hathcock's motion for relief, Judge Terry stated:
Plaintiff's motion raises the issue concerning the presiding judge's being related to an employee of Farm Bureau, and the failure of said judge to bring the relationship to the attention of the attorney who argued for Plaintiff in opposition to the motion for summary judgment.
*851 * * *
Jerry O. Terry, Jr., is currently the District Claims Representative located in Laurel, MS, where he has been located for the past several years. He does not and has not supervised any claims handling in the counties making up the Second Circuit Court District which his father serves. For some 20 years prior to his taking the bench in 1987, Judge Terry, himself, represented Farm Bureau in all counties of the Second Judicial Court District.
In all other cases coming before Judge Terry since 1987, where it was known that Farm Bureau was a named party or where it was learned that Farm Bureau was the insurer of a litigant, Judge Terry has informed the attorneys and parties in such cases of the foregoing relationship for the purpose of allowing either party to suggest a need for recusal. Plaintiff filed this lawsuit filed [sic] August 18, 2000. This case was assigned to Judge Terry October 23, 2000. The summary judgment motion was filed more than two years later, on October 28, 2002, and was not heard and granted until June 2003. The docket reflects no action in court prior to the motion for summary judgment. When Plaintiff raised the issue in this motion, after judgment was entered against him, the Court reviewed the summary judgment hearing transcript to determine whether, prior to argument on the summary judgment motion, Judge Terry made his usual announcement regarding his relationship with Farm Bureau. Since the transcript contains no such announcement, the Court assumes it inadvertently overlooked the point in this case. The Court further notes that this was probably the first appearance before this judge by the particular attorney who argued for Plaintiff.
The issue of "perception of impropriety" of a Judge is nebulous, to say the least, and in most instances it would be of no consequence to any party for the judge to promptly react to the issue by recusal and reassignment. However, now that this Court has entered summary judgment against Plaintiff, from which Plaintiff perfected no appeal, there is a consequence to be considered. Entry of summary judgment is reviewed on appeal de novo and unless there existed a fact issue or the ruling judge misapplied the law, it should be upheld.... In this case, there was no issue of fact for the jury (which the Court assumes is why Plaintiff did not appeal), and the law of this State seems to be well-settled that Mississippi follows the doctrine of "employment-at-will" as between employer and employee.
The perception of impropriety in this case might possibly appear if there were a fact issue to be decided and not simply an application. [sic] of existing legal principle. The application of the law being the sole complaint of the Plaintiff here, the Court finds it inappropriate to now set aside the judgment and recuse in order for another judge to apply the same well-established law to the same undisputed facts.
(First, second, third, fourth, fifth and seventh emphasis added).
¶ 19. In reviewing Judge Terry's grant of summary judgement to Farm Bureau, this Court employs a de novo standard of review. Saucier ex rel. Saucier v. Biloxi Reg'l Med. Ctr., 708 So. 2d 1351, 1354 (Miss.1998). The trial court reviewed all proper documents associated with summary judgment. See Id. (quoting Townsend v. Estate of Gilbert, 616 So. 2d 333, 335 (1993) (citations omitted)) ("`This entails reviewing all evidentiary matters in the record: affidavits, depositions, admissions, *852 interrogatories, etc.'"). Although the ruling on summary judgement was prejudicial Hathcock, the trial court followed the correct legal standard associated with same, and therefore, we find, as Judge Terry, that Farm Bureau was entitled to summary judgment. See Miss. R. Civ. P. 56(c) (proper to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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").
¶ 20. The Code of Judicial Conduct addresses the situation where the relative of a judge has an interest that could be substantially affected by the outcome of the case. See Code of Judicial Conduct, Canon 3(E)(1)(c). Hathcock claims that Judge Terry should have recused himself because his son, a district claims manager of Farm Bureau, had an interest in the outcome of the litigation. There is no evidence presented by Hathcock showing that Judge Terry's son had a "legal" interest that could be substantially affected by the outcome of this proceeding. See Buchanan v. Buchanan, 587 So. 2d 892, 896 (Miss.1991) (stating that the "Canon's concept of interest refers to a legal interest that will be affected by the final judgment"). Therefore, no objective reasonable person would conclude that Judge Terry was not impartial.
¶ 21. Canon 2(B) of the Code of Judicial Conduct states in pertinent part: "Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment." (Emphasis added). There is no evidence in the record from which a reasonable person could conclude that his familial relationship influenced Judge Terry's judgment in this case.
¶ 22. Canon 3(B)(1) of the Code of Judicial Conduct states: "A judge shall hear and decide all assigned matters within the judge's jurisdiction except those in which disqualification is required." (Emphases added). Under the facts and circumstances in this case, it is evident that disqualification was not required.
¶ 23. Subsection (E)(1)(a) of Canon 3 states that a judge should disqualify himself if "the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." In the absence of a judge expressing a bias or prejudice toward a party or proof in the record of such bias or prejudice, a judge should not recuse himself. Here, we find no evidence in the record to support a finding that Judge Terry had a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts.
¶ 24. Additionally, Subsection (E)(1)(b) of Canon 3 states that a judge should disqualify himself if "the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning [the matter in controversy]." However, the record does not support that Judge Terry served as a lawyer in the matter, was previously associated with a lawyer who served in the matter in controversy, or was a material witness or associated with a lawyer who was a material witness in the matter of controversy.
¶ 25. We note that the Commentary to Canon 3(E)(1) states that a judge should disclose on the record such information that the judge believes the parties or their attorneys might consider relevant to the question of his disqualification, not-withstanding the judge's belief that there *853 is no real basis for disqualification. Judge Terry evidently believed he should follow his longstanding practice of disclosing the aforementioned, notwithstanding the judge's belief that there is no real basis for disqualification.
¶ 26. In this case, Judge Terry notes that since the record lacks such a disclosure, he therefore assumes that he did not execute his self-imposed safeguard. A review of the record does not reveal such a disclosure by Judge Terry of this fact, and therefore, we, as Judge Terry, must assume he did not. However, this is of no consequence because neither disclosure is required, per se. See generally Miss. Const. art. VI, § 165; Miss.Code Ann. § 9-1-11; Code of Judicial Conduct, Canon 3; URCCC 1.15. Even had Judge Terry made the disclosure, the ultimate result would be no different because there is no real basis for disqualification. Assuming arguendo that Judge Terry's failure to disclose would be error, it would be de minimus at best, and therefore, harmless, as had Hathcock been informed of the son's employment and/or Judge Terry's prior representation was neither a basis for disqualification or recusal. In the case sub judice, there are two undisputed facts, (1) Judge Terry's prior representation of Farm Bureau, and (2) Judge Terry's son's employment with Farm Bureau in an unrelated capacity. Hathcock has offered this Court no additional facts. Accepting those two facts together, does not create a reasonable doubt as to Judge Terry's impartiality.
C. Past Representation.
¶ 27. It should be noted that no language can be found in the Mississippi Constitution of 1890, Mississippi Code Annotated, Code of Judicial Conduct or URCCC requiring, or even suggesting, that a judge's prior representation of a party, absent additional circumstances, is a basis for recusal. This relationship, standing alone, is an insufficient basis for recusal and not supported by Article 6, Section 165 of the Miss. Const. of 1890, Miss.Code Ann. § 9-1-11, Canon 3 of the Code of Judicial Conduct, URCCC 1.15 or applicable case law. It is evident that no objective reasonable person could conclude otherwise.
CONCLUSION
¶ 28. We find that the Miss. Const. of 1890, the Miss.Code Ann., the Code of Judicial Conduct, the URCCC, and applicable case law do not require Judge Terry to disclose these relationships to the parties. Furthermore, following a review of the case in its entirety and examining Judge Terry's rulings, we find that no objective reasonable person would question Judge Terry's impartiality, and any error that may have occurred was harmless beyond all reasonable doubt. Consequently, Judge Terry did not manifestly abuse his discretion in denying Hathcock's motion for relief. The judgment of Harrison County Circuit Court is affirmed.
¶ 29. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.
NOTES
[1] Farm Bureau's District Sales Manager.
[2] Christian filed a separate answer and defenses, but joined in the motion for summary judgment.
[3] This Court has stated: "`of counsel' refers to one who actually participated in the prosecution or defense of the case in controversy." Turner, 573 So.2d at 676 n. 9 (citations omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070793/ | Order entered July 9, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01380-CR
No. 05-13-01381-CR
WILSON BLUE III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F12-62630-J; F12-62631-3
ORDER
Appellant’s July 3, 2014 motion to accept the brief tendered is GRANTED. Appellant’s
brief received by the Clerk of the Court on July 3, 2014 is DEEMED timely filed on the date of
this order.
/s/ LANA MYERS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/239088/ | 231 F.2d 816
UNITED GEOPHYSICAL COMPANY, Inc., and Firemen's FundInsurance Company, Appellants,v.John VELA, Appellee.John VELA, Appellant,v.UNITED GEOPHYSICAL COMPANY, Inc., and Firemen's FundInsurance Company, Appellees.
No. 15723.
United States Court of Appeals Fifth Circuit.
April 12, 1956.Rehearing Denied June 4, 1956.
Wm. E. Wright, Andrew R. Martinez, New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellants.
Albert Sidney Cain, John J. Finnorn, New Orleans, La., for appellees.
Before BORAH, TUTTLE and BROWN, Circuit Judges.
BROWN, Circuit Judge.
1
On September 18, 1947, the three luggers, King Bell, Lola Sara and Nellie L, each about 50 feet long, 17 foot in beam, 20 gross tons, were located in Breton Sound, off the southeast coast of Louisiana for the purpose of performing geophysical exploration work for their chartered owner, United Geophysical Company, Inc. A tropical hurricane had been brewing in the East Gulf for a few days, but all of the United States Weather Bureau Advisories prior to 12:15 noon September 18 limited Hurricane Warnings to the Florida Coast and the Warning that Small Craft should remain in port extended as far West as Mobile, Alabama, only. All of this was suddenly changed by the Advisory1 of 12:15 noon September 18 predicting that the center of the Hurricane would strike the southeast Louisiana Coast and ordering Hurricane Warnings as far west as Morgan City, Louisiana. Breton Sound was in the middle of the predicted target area.
2
The Masters of these little vessels, consulting together in the light of the Advisory as well as recommendation broadcast by the Harbor Master of Gulfport directing all craft to leave the Gulf area for shelter inshore, concluded that they should seek haven at Fort St. Phillip, an old military post on the east bank of the Mississippi River and accessible from Breton Sound by Fort Bayou. By about 5:00 p.m. they reached their sanctuary. And well they did, for true to the Advisory, the hurricane of devastating force passed over Breton Sound about 5:30 in the morning of September 19 heading inland on a northwesterly course wreaking great havoc2 in its path.
3
In determining whether the District Court's finding of fault against United Geophysical for damage to Vela's dock and adjacent structure at Fort St. Phillip is supported, it narrows our field considerably to eliminate altogether any suggestion of fault for having sought this haven. Vela did produce a practical boatman, having some familiarity with this area of swamps and interlaced bayous, who asserted, as a claimed expert, that it was a mistake to seek shelter in port, and that safety suggested that little boats ride out the storm in open water. If we thought that, through some sort of nautical rear view mirror, it was for us, not these Masters, to make this decision, the wisdom of seeking shelter was, by striking coincidence, amply demonstrated. United had another boat, Supreme Food No. Ten, which, because of draft, could not make the channel where the other three were made fast. When the blow was over, the Supreme Food No. Ten was high and dry on or near the main levee of the Mississippi River after having dragged her anchor an estimated one-fourth to as much as one and one-half to nearly six miles.
4
But navigation in these circumstances is left neither to Judges nor the Elder Brethren of Trinity House nor those who, in the garb of experts, from the security of a swivel chair now lay out the course with great conviction. 'The master is the commander of the ship-- lord of his little world. He is master in every sense of the word * * *'. The Balsa, 3 Cir., 10 F.2d 408, 409. Whether he has bridge or quarterdeck to stalk, as long as he commands, he is master. It is the Master, then, who must make these decisions and who, clothed with great responsibility, enjoys the greatest and widest of good faith latitude in professional judgment. 'The fundamental principle in navigating a merchantman, whether in times of peace or of war, is that the commanding officer must be left free to exercise his own judgment. Safe navigation denies the proposition that the judgment and sound discretion of a captain of a vessel must be confined in a mental strait-jacket. * * *' The Lusitania, D.C.S.D.N.Y., 251 F. 715, 728.
5
With the lives of their crew, and their own, hanging in the balance as their decision was wise or unwise, with the possibility of some character of property damage or loss bearing largely as one of the alternatives in the paramount concern for safety or life, the decision of whether to leave or ride it out, seek shelter and if so where, was by the necessities of a well-named cruel sea committed irrevocably to these Masters. Their decision was prudent. Indeed, it is not shown to have been wrong at all.
6
For sanctuary the vessels tied up in the stream which paralleled the general course of a concrete seawall surrounding the main installations of Fort3 St. Phillip. This waterway thus ran through Vela's property which he had acquired through his purchase of the Fort in 1936 from the United States. The channel connected imperceptibly with Fort Bayou (sometimes called Plaquemine Bayou and by some thought to have been called Bayou Mardi Gras by Iberville). In all likelihood the channel was originally formed by the removal of earth to build up the levee immediately in front of the concrete seawall. But whatever its origin, it is certain that during governmental ownership it was dredged out to afford a channel depth of around 10 feet. It could and did sustain navigation and small commercial vessels, largely in the fish and oyster trade, or those seeking refuge from the weather, used it from time to time. The earthen levee, from the base of the seawall, declined to the water's edge, the vertical interval, as near as this record fixes it, being about 8 to 10 feet.
7
About 20 years before, Vela had built a structure made up of a small, light dock resting on a few small pilings on the water's edge approximately 4 feet in width and about 4 feet above mean low water; and just inshore of this and some 4 feet above it, a raised apron approximately 6 feet wide; and just inshore of this and on the same level, an oysterpicking shed. The covered shed was about 73 feet long, 23 feet wide, and it, and its 8 inch concrete floor, rested on pilings. It was separate from the docks. During oyster operations (which apparently had not been carried on for several years) the boats would land at the small dock, the oysters would be lifted by a hoisting boom to the upper dock apron and then moved into the shed. The southern end of the shed paralleled4 the channel just below the point where channel and seawall made a 90-degree turn to the left. The channel in front of the dock ran northeast-southwest.
8
This corner was chosen because trees on the shore provided a means for fastening mooring lines, and the higher banks of the levee and the nearby buildings afforded considerable protection, not available elsewhere, from expected high winds and seas. To best be able to cope with predicted northeasterly winds, the vessels were turned around with their bows headed northeast. The King Bell was starboard side to the southern end of the small dock. On her port side was the Lola Sara, and next to her the Nellie L. Bow lines from each of the three vessels were put out ahead and to the levee. An anchor was thrown into the stream off the port quarter of the Nellie L. Stern lines ran from the Nellie L to the Lola Sara and to the King Bell, and two stern lines ran from the starboard quarter of the King Bell, one onto the ends of the piling of the small dock, the other to willow trees ashore.
9
The bow lines held securely and never parted, nor did those from the King Bell's stern to the shore. During the night, however, with mounting wind and water, stern lines between the Nellie L, Lola Sara and King Bell kept parting and were renewed as quickly and as often as the crew could. In a further effort to hold the vessels up, the engines on one or more of them were kept ahead from time to time. On the Neillie L, the engines were drowned out as water from rain, sea, and wind came in. Near four or five o'clock in the morning of September 19, the water gained close to 9 or 10 feet which put it then well over the small and apron dock. Somewhere near this time, a stern line from the Lola Sara to the King Bell parted, and since the Nellie L's port quarter anchor could from time to time. On the Nellie L, the carried to her starboard. When the blow was over, she was sitting upright with her bottom partly on the levee and partly on the piling of the apron dock or picking shed.
10
Perched as the King Bell was on his very pins, Vela claimed that this circumstantial evidence-- too big to hide-- was proof enough that the King Bell, not the hurricane, made his dock and shed collapse. United Geophysical insisted that, except possibly for slight damage to the flimsy small dock, physically the damage was actually done by the hurricane and if in some part physically caused by the vessels, then it was not so in the eyes of the law.
11
In the trial, all seemed preoccupied with the nature of the stream in which the boats tied up. Vela was intent on making it out an artificial canal and hence, he said, a private waterway imposing on the user the burdens of one akin to a trespasser. The defense, pressing hard the public character of the waterway, was seeking to establish first that this was a prudent port of refuge, which it clearly was, but, more extreme, that this made the bank and the levee freely available for use by all with a Codal right to destroy with impunity any '* * * works which have been * * * built * * * in the beds of * * * navigable streams, or on their banks, and which obstruct or embarrass the use of these * * * streams, or their banks * * *.' LSA-Civil Code, Art. 861; and see also Arts. 455, 458, 457; Chinn v. Petty, La.App., 163 So. 735; DeArmas v. New Orleans, 5 La. 132.
12
Neither extreme is acceptable. We think this waterway was public, certainly as a part of the navigable waters of the United States. That where it and Fort Bayou joined, it ran through private property, does not change its character or restrict the users of Fort Bayou from plying on through the same waters to the end. It was navigable in fact; it was navigable in law, McKie v. Diamond Marine Co., 5 Cir., 204 F.2d 132; and, its origin as an artificial channel with subsequent man-made improvements alter not its navigable, subservient character. See State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884, 22 L.R.A.,N.S., 435; Ex parte Boyer,109 U.S. 629, 3 S. Ct. 434, 27 L. Ed. 1056; Perry v. Haines, 191 U.S. 17, 24 S. Ct. 8, 48 L. Ed. 73.
13
Time and tide may wait for no man. But time (and Congress) has likely transmuted this from an ordinary diversity case with Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, making Louisiana the source of law into one which, presenting an alleged maritime collision now retrospectively within the admiralty and maritime jurisdiction of the United States, 1948 Amendment 46 U.S.C.A. § 740; United States v. Matson Nav. Co., 9 Cir., 201 F.2d 610; Vega v. United States, D.C.N.Y., 86 F. Supp. 293, makes the Federal Maritime Law the standard. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct., 202, 98 L. Ed. 143. But whether tested by Louisiana or Federal Maritime Law, there is a clear policy in each to permit mooring along the banks of a navigable stream at least where it is done in refuge from catastrophic weather and with the exercise of reasonable care taking into account the tempestuous conditions and perils bearing on men's judgments and choices.
14
Faced with this impending storm of predicted but immeasurable violence, the considerations which approve the decision to seek shelter come into play in the selection of the precise place and the method of mooring. It was the threat of this hurricane striking them at sea which justified their going inside. But in shelter, they were still in its projected path. It was proper that with that mysterious and portentous force loose in the heavens, the Masters should choose the place where the vessels and crews would have the maximum protection. In that situation, on that public waterway, faced with those perils, the vessels had as much right to be where they were as did Vela's dock and structure. Reasonable care under those trying conditions was indeed imposed on the vessels, but if in the good faith judgment of their Masters, this was the spot best suited to afford protection against imminent peril, they did not need to withdraw to other places merely because the docks were nearby or might be damaged5 as the storm lashed the vessels about.
15
And it is here that Vela's claim fails, for nought but the collapse of the structure and presence of this vessel in the midst of the wreckage is shown, and this is insufficient. United States v. Waterman Steamship Corp., 5 Cir., 190 F.2d 499, 1951 A.M.C. 1291; Pacific Coast R. Co. v. American Mail Line, 25 Wash.2d 809, 172 P.2d 226, 1946 A.M.C. 1340. As on any other plaintiff, the burden rested on him to show damage proximately caused by lack of due care.
16
Damage by the vessel is not even shown. When it is recalled that water driven by winds of over 100 MPH rising to unprecedented heights above the level of both docks and near or over the shed floor was lashing with great fury at these old structures, and not a single witness did (or could) testify that the buildings collapsed upon, not before, being hit by the King Bell, the inferences at best are in balance.6 Braithewaite Lands Liquidation Co., Inc., v. The Ben Hur Tug, 5 Cir., 212 F.2d 851, 1954 A.M.C. 897.
17
But assuming damage, nothing indicates lack of prudence. Seeking shelter was prudent, the place of shelter was prudent. What then was imprudent? There is no evidence to justify criticism of the Masters on how the vessels were moored. All bow lines and the King Bell's stern line to the shore held. To be sure, lines parted between the sterns of the three vessels and this may have been critical. But a vessel is not to be condemned simply because lines part in the face of nature's unrelenting violence or because men, braving these elements, cannot rectify the failure before damage is done.
18
The District Court's estimate of these conditions was no less severe than ours. His approach, however, was basically that it was negligent for these vessels to seek shelter at Fort St. Phillip. This was a misconception of the duties resting upon these Masters. The finding of negligence produces a result which leaves us with a feeling that an injustice has occurred, and, as such, being clearly erroneous, Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A.; Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217; Sanders v. Leech, 5 Cir., 158 F.2d 486, 487; United States v. U.S. Gypsum Co., 333 U.S. 364, 68 S. Ct. 788, 92 L. Ed. 746, it must be set aside and judgment rendered for apppellants United Geophysical Company, Inc., and Firemen's Fund Insurance Company. This automatically disposes of Vela's cross appeal concerning interest on the judgment now vacated.
19
Reversed and rendered.
20
On Petition for Rehearing.
21
PER CURIAM.
22
Whether governed by Louisiana or Federal Maritime law, the result would be the same. The petition for rehearing attacking primarily retrospective applicability of 46 U.S.C.A. § 740 is without merit.
23
It is ordered that the petition for rehearing be, and it is hereby denied.
1
Advisory No. 31, 12:15 p.m. C.S.T., September 18: 'Change to hurricane warnings west of Pensacola, Florida, to Morgan City, Louisiana. Center of hurricane located at 11:45 A.M., by reconnaissance flight at latitude 27 longitude 85 or about 195 miles south of Apalachicola, Florida. It is moving west-northwestward about 15 MPH. It is attended by winds of 80 to 100 MPH within 50 miles of the center and by gales within 200 miles of the center. Winds are increasing on the extreme Northwest Florida coast. Pensacola reports gusts of 52 MPH. Precautions should be taken against hurricane winds by all interests from extreme Northwest Florida to the southeast Louisiana coast. Indications are the center of the hurricane will be approaching the southeast Louisiana coast Friday forenoon. Hurricane warnings are now displayed from Cedar Keys, Florida to Morgan City, Louisiana.'
2
Official Weather Bureau reports in evidence reflect that estimated damages in Louisiana were in the neighborhood of $24,000,000.00; in Mississippi, $29,000,000.00. Over 920 homes were destroyed, 11,668 damaged, 882 other buildings destroyed, 2,746 damaged. 42 boats destroyed, and 168 damaged. Deaths in Mississippi numbered 22 and 12 in Louisiana. One phenomenon of great significance here was that in addition to the strength and duration of hurricane force winds, the waters of the Gulf of Mexico were caught up by the hurricane winds and carried into the Mississippi Sound and elsewhere where they piled up on shore. To the east of Breton Island at Chandeleur Light, the water rose 14 feet and about 117 miles west at Morgan City, 6 feet. With this corroboration, the composite estimate by the witnesses in this case of a 9 to 10 foot rise at Fort St. Phillip is not to be doubted as a naturally extravagant exaggeration of this cataclysmic event
3
The record and its preoccupation with ancient maps and charts, unfolds the perfectly fascinating historical tradition of this Fort, built by the French about 1741, repaired by the Spanish around 1798, and important defense to the Port of New Orleans in the War of 1812 by its reputed destruction of a dozen British Men of War whose fallen dead likely lay buried in a forgotten cemetery, of service in the War between the States, the Spanish American War, its use in World War I, and its final abandonment in 1936 when its moats and Spanish Magazines afforded only operatic security
4
While the dimensions do not jibe exactly with it, the builder's estimate put the distance from the normal water's edge to the closest water side of shed at some 24 feet. But since the shed was at the turn in the channel, only one corner was even adjacent to the stream
5
This was not the case of the dock or adjacent structure being used for a mooring or being damaged in the process. The stern line from King Bell to the small dock slipped off as the vessels rose with the water level. The damage to the shed if done by the vessels was due entirely to their being in waters facing on the dock but still separated by a considerable distance from the shed, see footnote 4, supra
6
The King Bell was abeam the southern end of the shed only, yet it all collapsed. Considering the destruction, it seems significant that no damage to the bow or starboard side of the King Bell's wooden hull was sustained. Offsetting this, Vela pointed to lack of damage to nearby houses on the reservation, but all of these were above the seawall and exposed to none of the pounding, turbulent waves unleashed by this angry, truant sea | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/239124/ | 232 F.2d 33
98 U.S.App.D.C. 33
Evelyn P. BURRELL, Appellant,v.Fred MARTIN et al., Appellees.
No. 12376.
United States Court of Appeals District of Columbia Circuit.
Nov. 10, 1955.
[98 U.S.App.D.C. 34] Mr. Frank D. Reeves, Washington, D.C., for appellant.
Mr. Carl W. Belcher, Asst. U.S. Atty., for appellees. Messrs. Leo A. Rover, U.S. Atty., and Lewis Carroll, Asst. U.S. Atty., also entered appearances for appellees.
Before EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit judges.
BAZELON, Circuit Judge.
1
Appellees filed a suggestion of mootness after this appeal, involving appellant's effort to obtain reinstatement to her Government job, had been submitted for final disposition. To properly understand the issues we face, the background of this litigation must be told.
I.
2
The story starts on February 29, 1952, when the Department of the Army instituted a loyalty proceeding against appellant by notifying her that she was being removed from her position as a clerk-typist under an indefinite Civil Service appointment, because 'information received at this Depot, as a result of a loyalty investigation, indicates that there is a question of your loyalty to the Government of the United States.' On April 14, 1952, she was restored to her job. On the following day, the Army commenced a security proceeding by a notice of suspension which stated: 'Immediate suspension is deemed necessary in the interest of national security under authority of Public Law 733, 81st Congress,1 pending adjudication of your case * * *.'2
3
On May 13, 1952, the Chairman of the Army's Loyalty-Security Screening Board wrote appellant that information had been received which required formulation of charges against her with a view to effecting her removal under Public Law 733. Nine specific charges were stated and all appeared under the heading 'security.' Three days later, however, appellant was again 'returned to duty'; this time, as the notice stated, 'because letter of charges were not received from Loyalty-Security Screening Board.' But this reprieve ended after six days with another suspension when it appeared that appellant had received the May 13 letter containing the charges against her. Appellant answered the security charges contained in the May 13 letter and requested a hearing. A hearing was held by an [98 U.S.App.D.C. 35] Army Loyalty-Security Hearing Board at Fort Meade, Maryland, on September 16 and 17, 1952.
4
Before this hearing took place, however, the Civil Service Commission had instituted a loyalty investigation by letter of August 4, 1952, from its Fourth Regional Loyalty Board.3 The letter advised appellant that, during an investigation of her suitability for appointment as a clerk-typist, information had been received which required clarification. Appellant answered the enclosed interrogatory and requested a hearing. This hearing was held on September 26, 1952, ten days after the Army security hearing at Fort Meade, referred to above.
5
By letter of December 9, 1952, the Regional Board advised appellant that it found (1) reasonable doubt of her loyalty and (2) 'unsuitab(ility) for Federal employment because of your false statements concerning material loyalty matters at the hearing * * *.'4 Appellant appealed to the Commission's Loyalty Review Board. In response to her inquiry, that Board described the false statements referred to by the Regional Board, as set forth below.5 After a hearing, the Review Board advised appellant's attorney by letter of May 1, 1953 that
6
'* * * on all the evidence, there is not a reasonable doubt as to Mrs. Burrell's loyalty to the Government of the United States, thereby reversing the Regional Loyalty Board on the loyalty issue.
7
'However, the Civil Service Commission affirmed the ineligible decision on grounds of suitability other than loyalty. Therefore, the Department[98 U.S.App.D.C. 36] of the Army has been directed to remove Mrs. Burrell from the service. * * *'
8
It appears, from the papers before us, that the Commission's affirmation of the 'ineligible decision' was embodied in an order dated April 28, 1953.
9
Thus what began as an investigation into appellant's loyalty ended in a determination that she was loyal, but that her removal was nevertheless required on grounds of suitability other than loyalty.6
Five days later the Army wrote appellant:
10
'As your counsel has been advised, final decision on the security case has been held pending final action by the Civil Service Commission on the loyalty and suitability issues. Since you are to be or have been removed by order of the Civil Service Commission under Civil Service regulations, further action on the security case and decision on whether you should be removed under Public Law 733, 81st Congress have become unnecessary. Consequently, no further action on the security case will be taken and it is considered closed.'
11
On May 12, 1953, appellant protested the termination of the security case without decision, and requested a decision in accordance with the Army's regulations which required the Loyalty-Security Hearing Board to determine either that removal would serve the interest of national security or that it would not.7 The protest appears to have been ignored.
12
Appellant brought this suit on August 27, 1953, for relief against various Government officials and members of the Loyalty Boards. She prayed, inter alia, for a declaration that she was improperly suspended and removed from her position as payroll clerk at the Curtis Bay Sub-Depot of Letterkenny Ordnance Depot and that she was entitled to reinstatement; and for an order directing reinstatement and back pay. On cross-motions, the District Court granted summary judgment in favor of the appellees. Appellant brought this appeal and filed her brief on October 27, 1954. Appellees requested and were granted six extensions of time for filing their brief. In granting the sixth extension to April 18, 1955, we indicated we would grant no more. Then, on the last day of the extension, appellees filed a motion to remand the case to the District Court 'with directions to vacate the order (granting appellees' motion for summary judgment) and to refer this matter back to the Civil Service Commission for a supplemental ruling.'
13
The motion stated that, in declaring appellant ineligible, the Commission acted under its regulation which provides that eligibility may be denied for 'intentional false statements.'8 The motion pointed out that although 'appellant's status as an indefinite appointee was protected by (this regulation) * * *. The required finding of intentional falseness has not been made or rejected by the Commission.' The stated purpose of the motion was to allow the Commission to supply this required finding retroactively. At oral argument, counsel for appellees requested that, if the motion was denied, we should finally dispose of the case without their brief, since their position had been fully presented in connection with the motion.
14
Before we were able to act, however, appellees filed the suggestion of mootness[98 U.S.App.D.C. 37] on September 27, 1955. In pertinent part, the suggestion states that
15
'On September 26, 1955, both appellees and appellant were informed by the Civil Service Commission that the Commission (1) had vacated its own prior decision and (2) a decision of the Fourth Civil Service Region, both of which were adverse to appellant; and (3) had ordered the Department of the Army to reinstate appellant to her former position in government employment. The Commission has, by this action, granted all the relief which could have been granted by the District Court.'9 Appellant's reply states that
16
'By letter dated 28 September 1955, two days after appellees filed their suggestion of mootness, the Civilian Personnel Officer for the Letterkenny Ordnance Depot, informed the appellant as follows:
17
"You are advised that this Activity has received a letter from the Chairman of the United States Civil Service Commission advising that upon reconsideration of your case they have vacated the previous decision concerning your removal from the Depot, ineligibility for Federal employment, and debarment on the ground of unsuitability. The attached Standard Form 50, Notification of Personnel Action, is your official notification that the removal action, dated 6 May 1953, is cancelled.
18
"As stated on the Standard Form 50, cancelling the removal action, you revert to the suspension status effected on 22 May 1952 under Public Law 733, which was the condition of employment at the time of your removal. (Emphasis supplied.)
19
"You will be notified by the Office, Secretary of the Army of further developments pertaining to your security case."
The appellant's reply adds:
20
'To date, appellant has not been returned to duty and pay status nor has she been informed of 'further developments pertaining to (her) security case."
II.
21
It is clear, of course, that the Commission's recent order of September 21, 1955, vacating its discharged action of April 28, 1953, renders moot appellees' request to refer the case back to the Commission for a supplemental finding. But we conclude that this recent order does not moot the case and that we should proceed to a final disposition of this appeal.
22
When appellant filed the complaint herein, the controversy with respect to her asserted right to relief of reinstatement 'to her position as payroll clerk' was both real and ripe.10 The [98 U.S.App.D.C. 38] Commission's subsequent action has produced only reinstatement by the Army to 'her suspension status.' This, to put it mildly, is considerably less than the relief she seeks. Hence a real and ripe controversy remains.11
23
Appellees urge that the case is nevertheless moot because the court is without jurisdiction to order any reinstatement relief against the Army. Jurisdiction is said to be lacking because appropriate officials of the Army, who were named in the complaint, were not served or properly served. This contention does not bear scrutiny.
24
If the circumstances of the Commission's direction to reinstate appellant and the Army's failure to comply had occurred while this case was still pending before the District Court, appellant would have had the opportunity to obtain leave of that court to bring Army officials formally before the court.12 It follows, we think, upon plain principles of equity, that appellant should not be deprived of such opportunity and put upon another long 'merry-go-round of litigation'13 simply because these circumstances, which she could hardly have anticipated, occurred after this appeal was brought. We therefore conclude that appellant should be accorded this opportunity in further proceedings.
25
We think disposition of this appeal must also include a decision respecting the validity of the Commission's discharge order of April 28, 1953, since that decision 'may affect the rights of the litigants.'14 In its order of September 21, 1955, the Commission left no doubt that its discharge order was vacated, not because it appeared that the order was invalid, but because it appeared '* * * that the (unsuitability) matters dealt with in (the discharge) proceeding would fall more properly within the coverage of Executive Order No. 10450 * * *.'15 This makes plain that the Commission does not agree with appellant that the discharge order was invalid when entered and that she has therefore been illegally kept from her position as payroll clerk for more than three years.
26
An adjudication of the invalidity of the discharge may affect appellant in two important ways. First, it may have a material bearing on the controversy over reinstatement which is still extant. This derives from the reasonable possibility that the Army's present failure to reinstate appellant may rest, at least in part, on the matters involved in the Commission's discharge.
27
Second, an adjudication may also have a practical effect on appellant's right to collect back pay for the period of her illegal discharge.16 Under the [98 U.S.App.D.C. 39] Tucker Act,17 of course, only the Court of Claims has jurisdiction to determine the merits of appellant's monetary claim. But we recognized in Almour v. Pace that 'the District Court can properly declare individual rights, even though the plaintiff also possesses and is seeking to advance a monetary claim,' where, as here, the plaintiff has 'requested an order which would affect his status or establish his rights as to the future vis-a-vis some governmental agency.'18
III.
28
We turn now to consider the merits of the discharge issue. Appellees' now mooted motion to refer the case back to the Commission for a supplemental finding was clearly premised on their view that the finding of 'intentional' falseness is not only required but also that it must be express. Under this view, of course, the Commission's determination of unsuitability is invalid since it made no such express finding. But in a written memorandum, filed by appellees on August 30, 1955, in connection with certain questions we propounded after that motion was argued and submitted, they urged that, although the finding is required, it need not be express but may be derived, by implication, from the ultimate determination of unsuitability. We think this contention must fail.
29
The primary purpose and concern of the Commission proceeding related to the issue of loyalty, not suitability. The Commission's Loyalty Review Board, although it had before it the regional board's finding that appellant had made 'false statements' concerning material loyalty matters, determined the loyalty issue in her favor. It is hardly realistic to assume that the Review Board could or would have done so had it found that she lied-- made intentional false statements-- in answers to the critically important questions relating directly to the primary issue of loyalty. Nor can it be assumed, in the absence of an express finding, that the Commission, acting simultaneously and upon the same record with respect to these questions, could or would have so found. Moreover, in the record now before us, there is no evidence from which we can draw support for such a finding. That record consists only of appellant's answers to interrogatories and oral testimony by her and her husband. It contains no testimony against her.19
30
The Supreme Court 'has recognized that 'a badge of infamy' attaches to a [98 U.S.App.D.C. 40] public employee found disloyal.'20 Though appellant was ostensibly cleared on loyalty charges, the charges on which she was found unsuitable are of the same stuff and stain. The Commission's action kept the word of promise to the ear but broke it to the hope. And now-- two and one-half years later-- it finds that 'the matters dealt with * * * would fall more properly within the coverage of Executive Order No. 10450,'21 to wit, the loyalty-security order.
31
Moreover, we are unable to find a jot or tittle in the record before us of the Commission and District Court proceedings concerning the regulation which prescribes 'intentional' falsity as a ground of ineligibility and upon which appellees relied in this court, in their motion to remand, as the sole authority for the Commission's action. Hence it does not appear that the Commission was even aware of the applicability of the regulation when it considered and reached its determination of unsuitability.
32
Without deciding whether or in what circumstances we could ever imply the crucial finding of intentional falsity in a case of this sort, we cannot imply it in the foregoing circumstances.
33
We hold the Commission's action invalid for lack of a required essential finding. We therefore reverse and remand to the District Court with directions to vacate its order granting summary judgment for appellees; to grant appellant's motion for summary judgment declaring the Commission's discharge order of April 28, 1953 invalid; to grant appellant opportunity to serve the appropriate officials of the Department of the Army; and thereafter to consider what further relief, such as reinstatement, may properly be awarded in the further proceedings required by this opinion.
34
Reversed and remanded with directions.
1
Public Law 733, 81st Cong., 2d Sess., 64 Stat. 476 (1950), 5 U.S.C. § 22-1, provides in pertinent part: 'Notwithstanding the provisions of section 652 of this title, or the provisions of any other law * * * the Secretary of the Army * * * may, in his absolute discretion and when deemed necessary in the interest of national security, suspend, without pay, any civilian officer or employee of the * * * Department of the Army * * *. The agency head concerned may, following such investigation and review as he deems necessary, terminate the employment of such suspended civilian officer or employee whenever he shall determine such termination necessary or advisable in the interest of the national security of the United States, and such determination by the agency head concerned shall be conclusive and final * * *.'
2
No explanation of why appellant was restored to her job on April 14, 1952, appears in the record. It should be noted, however, that the restoration and immediate suspension changed appellant's status from that of a removal on grounds of loyalty to a suspension on grounds of security, and thus brought the Army's action under the provisions of Public Law 733, set forth in note 1, supra
3
With the exception of the removal on February 29, 1952, all action taken by the Army against appellant was on grounds of security. All action taken against her by the Civil Service Commission was on grounds of loyalty or unsuitability for reasons other than loyalty
4
Emphasis supplied. This letter also stated that 'As the result of the above decisions your separation from the Federal service has been instructed, all existing eligibilities or applications are considered cancelled and you have been barred from competing in the Federal Civil Service examinations and from accepting employment in the Federal service for a period of three years from the date of your separation.'
5
'1. Mrs. Burrell's admissions concerning her negative answer on Applications for Federal employment which she completed in 1951-1952, to the question relating to present or past membership in Communist organizations. The Board concluded that she was aware of the Communist nature of the Washington Bookshop when she filled out these applications. Mrs. Burrell had been questioned about the Washington Bookshop affiliation in the interrogatory issued to her on November 14, 1949, and she admitted prior membership in that organization. In answer to question VII on the current interrogatory she answered 'No.'
'2. Mrs. Burrell's answer to Interrogatory VI, part (c) concerning her association with alleged Communists, and the portion of her statement denying knowledge of Communist affiliation on the part of any of her associates. This statement is as follows: 'I would like to preface my answers by saying that I do not know any of the persons named herein to be Communists, Communist sympathizers or otherwise subversive characters' nor any other persons with whom I have, or do now associate', and 'If the persons named in the interrogatory, or other persons connected with the Committee for Fair Employment Practices are Communists, Communist sympathizers, or otherwise subversive, I had no knowledge of it at the time I was associated with them, nor have I now, beyond that which has come to me through this inquiry.'
'3. Mrs. Burrell's answer to Interrogatory VI, part (b), which reads in part as follows: 'I have on no occasion, aided, acquiesced, or participated in any activity on behalf of Communists, or any activity which might be construed as such.'
'4. Mrs. Burrell's denial of attending a social at the home of (names deleted) on September 1, 1951, one of several socials planned by Communist Party members for the purpose of raising funds for the defense or arrested Communist Party leaders.
'5. Mrs. Burrell's denial she made a statement to the effect that despite (name deleted) conviction she felt she was his friend regardless of whether or not he was a member of the Communist Party.'
6
On May 21, 1953, appellant requested review by the Civil Service Commission of the determination of ineligibility. Review was denied by letter of June 8, 1953
7
Special Regulations of the Department of the Army, No. 620-220-1 (1950), at p. 12
8
Citing 5 C.F.R. § 2.104(a)(4) (1949), which now appears as 5 C.F.R. § 2.106(a) (4) (Supp.1955)
9
The specific language of the Commission's order, as set forth in appellant's reply, is as follows:
'Upon reexamination of the facts and circumstances of this Commission's Order dated April 28, 1953, affirming the discharge of Evelyn P. Burrell on the grounds of unsuitability, and it now appearing that the matters dealt with in that proceeding would fall more properly within the coverage of Executive Order No. 10450 of April 27, 1953 it is by the Commission this 21st day of September, 1955,
'ORDERED: (1) That the previous order of this Commission dated April 28, 1953, relating to Evelyn P. Burrell, be and the same is hereby vacated;
'(2) That the Fourth Regional Office decision be and the same is hereby reversed; and,
'(3) That the Department of the Army be directed to restore Evelyn P. Burrell to the position she occupied at the time of her removal or to a similar position.'
10
A moot case has been defined as '* * * one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.' Ex parte Steele, D.C.N.D.Ala.1908, 162 F. 694, 696, 701, emphasis supplied. For a general discussion of mootness, see Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. of Pa.L.R. 772 (1955); Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. of Pa.L.R. 125 (1946)
11
See Standard Fashion Co. v. Magrane-Houston Co., 1922, 258 U.S. 346, 353, 42 S. Ct. 360, 66 L. Ed. 653; Snow v. Snow, 1951, 50 App.D.C. 242, 243, 270 F. 364, 365; and Note, Cases Moot on Appeal, supra, at p. 778
12
Fed.R.Civ.P. 19, 28 U.S.C. While it is highly unlikely that the Army would, be objecting to lack of service, frustrate any reinstatement relief ordered by the court, Cf. United States v. City of New York, 2 Cir., 1949, 175 F.2d 75, 77, the Army's formal appearance would, of course, insure the effectiveness of such relief
13
Melvin v. Melvin, 1942, 76 U.S.App.D.C. 56, 59, 129 F.2d 39, 42 (concurring opinion of Mr. Justice Rutledge), quoted in Hopson v. Hopson, D.C.Cir., 1955, 95 U.S.App.D.C. 285, 288, 221 F.2d 839, 842
14
Collins v. Porter, 1946, 328 U.S. 46, 48, 66 S. Ct. 893, 90 L. Ed. 1075
15
Note 9, supra. Executive Order No. 10450, 3 C.F.R. 72 (Supp.1953), was promulgated April 27, 1953, almost two and one-half years ago. No explanation is given as to why its applicability was not considered until now
16
Merely 'vacating' the order does not make moot a decision as to its legality, since the right to back pay may be dependent on such a decision. See Southern Pacific Co. v. Interstate Commerce Comm., 1911, 219 U.S. 433, 452, 31 S. Ct. 288, 294, 55 L. Ed. 283, where the Court held that a determination of the validity of an I.C.C. order which had 'spent its force' was not moot 'in view of the possible liability for reparation to which the railroads might be subjected if the legality of the order were not determined * * *.'
17
62 Stat. 933 (1948), as amended, 28 U.S.C. § 1346(d) (1952)
18
1951, 90 U.S.App.D.C. 63, 66, 193 F.2d 699, 701
Appellees also urge that, even if removal was improper here, appellant's status as a non-classified civil servant precludes recovery in the Court of Claims, citing Nadelhaft v. United States, Ct.Cl.1955, 131 F. Supp. 930. Whether that case would bar appellant is a question which must be reserved for the Court of Claims.
19
It appears that the Commission considered materials which are not contained in the record before this court. At the outset of the hearings before the Regional Loyalty Board, its chairman stated that
'when the transcript is prepared it will not include all the material in the file of the case, in that it will not include reports of investigation conducted by the Federal Bureau of Investigation which are confidential. The transcript also will not contain information concerning the identity of confidential informants. In other words, the transcript will contain only the information set forth in the Interrogatory which you received and the evidence actually taken at this hearing.'
See discussion of 'faceless informers' in concurring opinion of Mr. Justice Douglas in Peters v. Hobby, 1955, 349 U.S. 331, 351, 75 S. Ct. 790.
20
Peters v. Hobby, 1955, 349 U.S. 331, 347, 75 S. Ct. 790, 798, citing Wieman v. Updegraff, 1952, 344 U.S. 183, 191, 73 S. Ct. 215, 97 L. Ed. 216
21
Note 9, supra | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1547422/ | 15 F.2d 434 (1926)
GUARANTY TRUST CO. OF NEW YORK et al.
v.
CHICAGO, M. & ST. P. RY. CO. et al., and three other cases.
Nos. 4696, 4931, and 5065.
District Court, N. D. Illinois, E. D.
November 19, 1925.
September 28, 1926.
*435 Davis, Polk, Wardwell, Gardiner & Reed, of New York City, and Tenney, Harding, Sherman & Rogers, of Chicago, Ill. (Edwin S. S. Sunderland, of New York City, and Horace Kent Tenney, of Chicago, Ill., of counsel), for Guaranty Trust Company of New York and Merrel P. Callaway, as trustees.
Stewart & Shearer, of New York City, and Wilson, McIlvaine, Hale & Templeton, of Chicago, Ill. (W. A. W. Stewart, of New York City, and William B. McIlvaine, of Chicago, Ill., of counsel), for United States Trust Company of New York and Edward W. Sheldon, as trustees.
George W. Miller, Carl S. Jefferson, and William L. Hunter, all of Chicago, Ill., for Chicago, Milwaukee & St. Paul Railway Co. and Chicago, Milwaukee & Puget Sound Railway Co.
H. H. Field, O. W. Dynes, and Winston, Strawn & Shaw, all of Chicago, Ill. (Ralph M. Shaw and J. Sidney Condit, both of Chicago, Ill., of counsel), as receivers of Chicago, Milwaukee & St. Paul Ry. Co.
Clay Judson and Victor Elting, both of Chicago, Ill., for Binkley Coal Company.
Geller, Rolston & Blanc, of New York City, and Burry, Johnstone & Peters, of Chicago, Ill. (Edward H. Blanc and Mansfield Ferry, both of New York City, and Bruce Johnstone, of Chicago, Ill., of counsel), for The Farmers' Loan & Trust Company, as Trustee.
Patterson, Eagle, Greenough & Day, of New York City, and Scott, Bancroft, Martin & MacLeish, of Chicago, Ill. (William Greenough, of New York City, and Frank H. Scott, of Chicago, Ill., of counsel), for United States Mortgage & Trust Co., as trustee.
Sullivan & Cromwell, of New York City, and Scott, Bancroft, Martin & MacLeish, of Chicago, Ill. (Philip L. Miller, of New York City, and Frank H. Scott, of Chicago, Ill., of counsel), for William Nelson Cromwell, as trustee.
White & Case, of New York City, Follansbee, Shorey & Schupp, of Chicago, Ill. (Roberts Walker and Jesse E. Waid, both of New York City, and Mitchell D. Follansbee, of Chicago, Ill., of counsel), for Bankers' Trust Co., as trustee.
Lessing Rosenthal, of Chicago, Ill., for stockholders' committee.
Nathan L. Miller, of New York City, and Weymouth Kirkland, of Chicago, Ill., for bondholders' committee.
The motion of Ernest Iselin and others to intervene was denied November 19, 1925, with the following opinion:
WILKERSON, District Judge.
In the consolidated cases against the Chicago, Milwaukee & St. Paul Railway Company there is pending a hearing on the application of Ernest Iselin and others for leave to intervene and become parties defendant. The applicants seek permission to act for and represent the stockholders of the railway company herein, and for and on behalf of the railway company, or otherwise, to raise, present, and maintain such contentions, defenses, and issues as the railway company might or could raise, present, or maintain in these proceedings.
Principles which control the granting of applications like the one under consideration are, I think, well established. District Judge Tuttle has summarized them in Acme White Lead Company v. Republic Motor Truck, in 284 F. 580, at page 581, as follows:
"Under equity rule 37 (198 F. xxviii, 115 C. C. A. xxviii), the power of the court to permit a party claiming an interest in the litigation pending in a cause to intervene therein is discretionary. Where, however, as in the present case, it does not appear that the petitioner has a real, legal interest in the subjectmatter of the suit, nor that the receiver of this court, which is in possession of all of the property of the corporation involved, is improperly administering it, nor that petitioner, if claiming rights as a stockholder in said corporation, has unsuccessfully tried to obtain from the corporate officers and directors such relief as he desires, as required by equity rule 27 (198 F. xxv, 115 C. C. A. xxv), nor that it is necessary for him to intervene in this suit in order to secure the relief to which he is entitled, his petition for leave to so intervene should be denied."
In Continental & Commercial Trust & Sav. Bank v. Allis-Chalmers, 200 F. 600, 611, District Judge Geiger summarized the rule as follows:
"In considering the petition of Eiseman as a stockholder, for leave to intervene, there is much force in the contention of the complainant *436 that the petition should be accompanied by a proposed answer or other pleading disclosing the defense proposed to be asserted. A bondholder is in a sense a party. He does not appear of record, because the rule of convenience which has been referred to excludes him; but he has an interest in the suit, the assertion and protection of which is committed to the trustee. A stockholder, however, is in no sense a party, and the effect of his intervention is to introduce a new party, or possibly to displace the corporation in which he holds stock, and there is good reason to require at the outset the tender of a pleading which as to form and substance will meet the requirements exacted of one regularly a party to the suit. But I have concluded to consider the petition, to determine whether its substantive allegations are sufficient, either for intervention or as a defense.
"The criticisms which have been made respecting the insufficiency of the petitions for intervention by bondholders are equally applicable here. The mere assertion that a trustee is partial, or the characterization of a situation as fraudulent, collusive, and the like, is insufficient, in the absence of allegations of fact themselves giving rise to an inference of such partiality, fraud, or collusion. It is elementary that Eiseman, as a stockholder, can have no personal or direct interest in the foreclosure suit. As a stockholder he has an interest in having the corporate rights asserted or protected; but, before he can be heard at all, he must be prepared to make a showing identical with that which would enable him, as a stockholder, to commence an independent suit to assert or protect a corporate right. The mere fact that he is seeking to intervene in an existing suit to which the corporation has been made a party does not relieve him from the obligation to make the same showing. Assuming, therefore, that to establish his right to intervene he must meet the requirements of an ordinary bill by stockholders founded on rights which may properly be asserted by the corporation, the first requisite is that he disclose his efforts to secure such action as he desires on the part of the managing directors or trustees of the corporation, and the causes of his failure to obtain such action.
"In other words, the proposed intervener, claiming that the rights of the Allis-Chalmers Company are being sacrificed through unnecessary default, would, in a stockholders' bill, be required to show his efforts, if any, toward securing the necessary action on the part of the directors and trustee, either to prevent the default complained of, or to relieve from the necessary consequences ensuing therefrom. The intervener doubtless conceived that he brought his case within the well-known exception to the rule by the following allegation in his petition: `That the said foreclosure proceedings are fraudulent and collusive and were instituted at the request of and in behalf of certain people who desire to reorganize the company for their own profit and to deprive bondholders and stockholders of their just dues; that the officers of the Allis-Chalmers Company, and particularly the president of the said company, are parties to this fraudulent and collusive scheme, and have fraudulently agreed that the said foreclosure proceedings should not be opposed by them, and have not attempted, although the funds are in their hands, to cure the default by paying the coupons on said first mortgage bonds, which were due and payable on the 1st day of January last past.'
"It being likewise elementary that the rule requiring a disclosure of a demand and the efforts made to secure action on the part of the corporation does not apply to situations where compliance therewith is unnecessary because useless, does the petition disclose this exceptional situation? Manifestly not. While the exception exists as stated, it is equally clear that the facts showing the case to come within the exception must be averred with the same clearness and explicitness as is required under the rule itself."
In the case of Conley v. International Pump Company (D. C.) 237 F. 286 at page 288, Hough, Circuit Judge, puts it this way:
"The major part of the moving papers is taken up with complaints of the inequity of a proposed plan of reorganization. I do not think that courts sit to redraw or modify or make suggestions concerning such voluntary business arrangements as reorganization plans. There have been circumstances, and they may arise again, when a chancellor may bluntly refuse to sign a final decree which is intended to carry out a grossly unfair settlement; but it is certainly a curious conception of practice which leads a small body of shareholders to seek to answer a foreclosure bill merely because they are dissatisfied with what the foreclosing complainant says out of court it hopes or even intends to do after the final decree is procured. Indeed, I think prolonged argument reduced the petitioners' application to one proposition, namely, that they should be allowed to show by answer and evidence that the defaults which occasioned the necessity for foreclosure were the result of a conspiracy between the bondholders of this defendant and the officers of the same; the *437 object of such conspiracy being to precipitate foreclosure when as a matter of fact the company was solvent and able to pay the interest and other charges, failure in respect of which is the gravamen of the foreclosure bill. These are very serious allegations, and are said to require the favorable action of the court, under the controlling authority of Louisville Trust Co. v. Louisville, etc., R. R., 174 U. S. 674, 689, 19 S. Ct. 827, 832 (43 L. Ed. 1130). The ground of that decision, however, is thus stated: `While not intending any displacement of the ordinary rules or rights of a mortgagor or mortgagee in a foreclosure, we believe that under the circumstances as presented by this record there was error; that the charge, alleged positively, and supported by many circumstances, of collusion, * * * was one compelling investigation.'
"It is in my judgment entirely obvious that, while these petitioners make the charge of collusion positively, they fail to support their charge by any circumstances or proof whatever. Yet in many cases I should incline to admit as parties defendant those making charges of such moment, upon their giving reasonable security to make good the expense caused by their intervention, if unsuccessful. In this instance, however, I shall not do so, because of what I believe to be the underlying principle of intervention in equity. Necessary parties to a proceeding are those without whose presence a binding decree could not be made. Interveners are (generally speaking) those who show an equitable claim to present their own individual demands, because and only because the parties already in the action do not, will not, or cannot properly and efficiently present the intervening interests."
Measured by these rules, or by the standards fixed in any of the cases which have been called to my attention, the petition is insufficient, and it would be an improper exercise of the court's discretion to grant this motion upon the showing now before the court, and the motion will be overruled.
Subsequently a motion was made by Edwin C. Jameson et al., called a bondholders' defense committee, for leave to intervene, and on September 28, 1926, Judge Wilkerson denied the application and delivered the following opinion:
WILKERSON, District Judge.
This consolidated cause is a proceeding to foreclose mortgages upon the property of the Chicago, Milwaukee & St. Paul Railway Company and Chicago, Milwaukee & Puget Sound Railway Company. The final decree of foreclosure and sale was entered on April 26, 1926. The following provisions are pertinent to the pending motions:
"Notice of the time and place and terms of sale, describing briefly the property to be sold and referring intending purchasers for a more particular description of the property to be sold to this decree and to the records in the above-entitled causes, and to the statements of the receivers to be filed with the clerk of the court as hereinafter directed, shall be published once a week for at least four weeks. * * *
"On the twenty-first day following the conclusion of the bidding at said sale, or said adjourned sale, or if said day be Sunday or a legal holiday, then on the next day not Sunday or a legal holiday, at 11 o'clock in the forenoon, the special master shall report the result of said sale to this court in the federal court building, city of Chicago, for such orders, judgments, or decrees as may by this court be deemed proper or advisable; and this court reserves the right at said time either to adjourn or postpone the hearing upon such report of the special master, or at said time, or at any other time to which such hearing may be adjourned or postponed, to order the approval or disapproval of said sale, to order such further and other sales, if any, as may be deemed advisable, to hear complaints upon the matters referred to in article VXII hereof, and to make such orders in the premises as it may deem proper. The above-entitled causes are, and each of them is, hereby set for further hearing before this court at the time and place of the making of the above directed report to this court. Notice that such report will be made and such hearing held shall be included in the notice of sale to be published as hereinbefore in this article XIV directed. Such hearing may thereupon be had without any further notice to any party, except as required by said article XVII. * * *"
"The court hereby expressly reserves the right to confirm or not to confirm any sale made as provided in this decree, and to accept or reject any bid or bids which may be made at any such sale."
"Article XVII.
"Date of Sale and Upset Prices Bidder's Statement and Amounts of Deposits Required to Qualify Bidders.
"The date upon which the sale directed to be made by this decree shall be held will be fixed by this court hereafter upon the application of the complainant trustees under *438 the mortgages foreclosed by this decree. At such time the court will also fix the amounts of minimum bids or upset prices which will be received for the respective parcels hereinbefore defined, when offered for sale separately, and when all of said parcels are offered for sale together, and the special master shall not receive any bid for any of said respective parcels when offered for sale separately, or for all of said parcels when offered for sale together, less than the respective amounts so to be fixed.
"The special master shall accept no bid from any one who shall not, prior to the offer by the special master of any property for sale under this decree, file with the special master a statement whether or not he proposes to bid on behalf of, or for the benefit of, any corporation organized or to be organized with the intention that it shall become the owner of said property, or any part thereof, or any beneficial interest therein, pursuant to any plan or agreement of reorganization, and, if so, also a complete copy of such plan or agreement, together with a brief statement of the notice theretofore given of such plan or agreement, by publication or otherwise, to persons and corporations interested in the railway company and its property. At the hearing to be held upon the report of the special master referred to in article XIV hereof, the court will hear complaints as to the equity of the provisions of any plan or agreement so filed with the special master affecting the respective priorities of all persons and corporations interested in the railway company and its property, from all bondholders or other creditors, secured or unsecured, or stockholders of the railway company, who before the date of such hearing shall file, with leave of court, their petitions herein for the purpose, specifying in reasonable detail the particulars in which such plan or agreement is alleged by them to be inequitable; and this court reserves exclusive jurisdiction to determine whether the provisions as to which complaints are so made are equitable, and no sale of any property hereunder to any purchaser who is to purchase said property on behalf of, or for the benefit of, any such corporation organized or to be organized with the intention that it shall become the owner of said property, or any part thereof, or any beneficial interest therein pursuant to any such plan and agreement, shall be confirmed if this court shall determine that the provisions of such plan and agreement, or any thereof, are inequitable, or that said plan and agreement does not contain an equitable and timely offer of participation in the reorganization thereby proposed to all persons entitled thereto. The special master's notice of sale shall refer to the foregoing provisions of this paragraph, and if any person or persons who shall have filed with the special master a statement that he or they propose to bid on behalf of, or for the benefit of, any corporation or corporations organized or to be organized with the intention that such corporation or corporations should become the owner of said property, or any part or parts thereof, or any beneficial interest or interests therein, pursuant to any plan or plans or agreement or agreements of reorganization as aforesaid, shall be the successful bidder or bidders for the said property or any part or parts thereof, the special master shall publish once in each week for two successive weeks, in the same newspapers in which he shall have published the notice of sale, a notice that the successful bidder or bidders, as the case may be, have so filed with him a copy of a plan or plans or agreement or agreements of reorganization under which their successful bid or bids were made, and that such copy or copies of said plan or plans or agreement or agreements of reorganization may be examined by any one wishing to do so at the office of the clerk of this court. Such publication shall give notice of the time and place where the hearing hereinabove provided for upon the equity of the provisions of such plan or plans or agreement or agreements of reorganization shall be held. * * *
"In making the sale directed by this decree, the special master shall accept no bid from any one offering to bid, who shall not, at least 12 hours prior to any offering of the property for sale under this decree by the special master, have deposited with the special master and have delivered to him, as a pledge that he will make good his bid in case of its acceptance, in cash or certified check on some national bank or trust company in the city and state of New York, or in the city of Chicago, state of Illinois, acceptable to the special master and made or indorsed payable to his order, or in the securities and claims by this article permitted to be used for such purchase, or partly in cash or certified checks and partly in securities and claims, but in the same relative proportions:
"1. In the case of parcel 1, an amount equal to 5 per cent. of the upset price for parcel 1, fixed as hereinabove provided. * * *
*439 "2. In the case of parcel 2, an amount equal to 5 per cent. of the upset price for parcel 2, fixed as hereinabove provided. * * *
"3. In the case of parcel 3, the aggregate of such sums. * * *
"4. In the case of parcel 4, an amount equal to 5 per cent. of the upset price for parcel 4, fixed as hereinabove provided. * * *
"5. In the case of parcel 5, the aggregate of such sums. * * *
"In case any bidder, after confirmation of the sale to him as hereinafter provided, shall fail to comply within the period of 20 days after the entry thereof with any order of the court requiring or relating to the payment of the balance of the purchase price, or if an appeal be taken from any such order, within the period of 20 days after the service of notice of the entry of the order finally affirming such order on appeal, then the deposit of such accepted bidder shall be forfeited as a penalty for such failure and shall be applied to the payment of the expenses of a resale and toward making good any deficiency or loss in case the property sold to such bidder shall be sold at a less price on any such resale, and to such other purposes as the court may direct."
It will be seen that the provisions of the decree give full opportunity to be heard, and afford complete protection to all stockholders and bondholders with reference to all matters touching the acceptance of bids, the approval of plans of reorganization, and the resale of the property, if that should be found necessary. It would seem impossible to draft a decree which more completely safeguards the rights of stockholders and bondholders. In the light of the provisions of the decree, the pending motions may be examined.
I. Motion of Jameson Committee for Leave to File Petition for Intervention.
Three drafts of a petition for intervention have been filed by this committee. The first draft, among other things, sets out in great detail charges of fraud in connection with the acquisition by the St. Paul Railway Company of the Terre Haute and Gary lines. There was a long hearing before the court concerning the Terre Haute and Gary transactions, with the result that the charges of fraud were formally withdrawn by counsel for the Jameson committee, and an amended petition tendered to the court. In both the original and amended petition the committee applied to the court as the representative of holders of both refunding and Puget Sound bonds. The Jameson committee then returned the Puget Sound bonds to the depositors, and in the amended and supplemental petition asserts that the bondholders' committee, which represents more than a majority of both refunding and Puget Sound bonds, is acting in a dual capacity, and is therefore disqualified to protect the interest of the refunding bondholders. It is further charged that, as the Guaranty Trust Company, trustee in the refunding bond foreclosure, is subject, by virtue of the terms of the trust deed, to the direction of this committee in matters relating to the sale, the intervention should be allowed.
The other grounds upon which intervention is sought relate to the alleged unfairness to the junior bondholders of the reorganization plan proposed by the committee representing the holders of over 80 per cent. of those bonds. The amended and supplemental petition of the Jameson committee concludes with the following summary of the relief sought:
"(1) That they be given leave to assert their rights in this cause by intervention; such intervention, however, to be in subordination to, and in recognition of, the propriety of the main proceeding.
"(2) That they be heard upon the question of the time and manner of holding the sale of the property of the railway, and of the minimum or upset price to be set by this court upon such property or upon the various parcels thereof in connection with such sale.
"(3) That no sale of said property be had until this court has had reasonable assurance from responsible parties that there will be submitted at said sale either a cash bid in an amount determined by this court to be a fair price for said property, or a bid pursuant to a plan of reorganization which this court has found to be just and equitable to all stockholders and creditors of the railway, and in particular to the refunding bondholders represented by the undersigned.
"(4) That they be heard in support of objections to the plan of reorganization heretofore promulgated by Messrs. Kuhn, Loeb & Co. and the National City Company.
"(5) That this court declare that said plan of reorganization is unjust and inequitable to the holders of refunding bonds of the railway, and that said plan does not constitute a fair and timely offer, to the refunding bondholders, of participation upon just and equitable terms in the benefits of the reorganization proposed therein."
*440 As to the second relief sought, it may be said that the petitioners were fully heard as to the form of the decree at the time of its entry, and upon the application of the plaintiff to fix the date of sale and the up-set price.
As to the third point, the court is asked to give an anticipatory ruling as to the adequacy of the bid or the fairness of the plan in a proceeding which is binding upon no one. How is the assurance to be given? If a plan is submitted, and the court should be of the opinion that it is fair, how is the court to require the parties who tender it informally to offer it at the master's sale? The decree provides that all stockholders and bondholders may be heard as to the adequacy of the bid and the fairness of the plan when the master's report is submitted to the court. It would be improper for the court to pass upon this question until an opportunity has been given to all stockholders and bondholders to be heard. And, of course, the court should not enter a finding upon these matters until they are before the court in such a way that its finding may be enforced. Petitioners will have an opportunity to be heard upon the adequacy of the bid and the fairness of the plan when these matters are before the court in the proper way.
A re-examination of this question since the entry of the decree satisfies me that the method provided in the decree for the consideration of bids and plans of reorganization is in harmony with orderly procedure in the court, and that the departure suggested by petitioners would impose upon the court a burden too heavy to be borne, and put the court in the position of announcing rulings and rendering decisions which it would be powerless to enforce. It is not proper that a court should announce in advance how it will decide a case which may be brought before it. Nor, as a matter of law, may plaintiffs be deprived of their rights under the decree until some one has volunteered to submit in advance to the court what he proposes to do at the sale. Plaintiffs are entitled to a reasonable execution of their decree. Petitioners will have their opportunity to be heard, with all other bondholders and stockholders, when the report of sale is submitted to the court. The provisions of the decree accord with well-considered precedents, and are consistent with the orderly performance of the duties of the court.
As to the fourth and fifth points, the rights of petitioners are safeguarded by the provisions of the decree, which provide the time and manner of objecting to the approval of the master's report of sale.
It remains to be considered whether the petitioners have made a showing for a special intervention "in subordination to, and in recognition of, the propriety of the main proceeding." In view of the provisions of the decree as to the right of bondholders to be heard upon the coming in of the master's report of sale, this motion must be treated as one for intervention on the ground of the disqualification of the trustees to represent all of the bondholders in the foreclosure proceeding. Have petitioners made out such a case?
No absolute right of intervention is given by equity rule 37 in cases of this character. Kardo v. Adams, 231 F. 950, 146 C. C. A. 146; Palmer v. Bankers' Trust Co. (C. C. A.) 12 F.(2d) 747. The general rule in corporate mortgage foreclosure cases is that the trustee, being a party to the suit, represents all the bondholders, and that the latter will not be permitted to intervene, unless a showing is made that the trustee is not unexceptionable; for example, that the trustee has or is representing a financial interest in the litigation opposed to that of the bondholders, that the trustee is conspiring with some one to bring about unfair results, and that the trustee is guilty of fraud, or is not acting in good faith. Shaw v. Railroad Co., 100 U. S. 605, 611, 25 L. Ed. 757; Richter v. Jerome, 123 U. S. 233, 246, 8 S. Ct. 106, 31 L. Ed. 132; Continental & Commercial Trust & Savings Bank v. Allis-Chalmers Co. (D. C.) 200 F. 600; Investment Registry, Ltd., v. Chicago & M. Electric R. Co. (D. C.) 213 F. 492; Palmer v. Bankers' Trust Co. (C. C. A.) 12 F.(2d) 747, 752, and cases there cited.
It is charged in the petition for intervention that the trustees are pressing for an early foreclosure and sale, for the purpose of enabling the reorganization managers to bid in the property and dispose of the same under the reorganization agreement of the majority bondholders' committee. It is also charged that the reorganization managers are so directing and controlling the action of the trustees that the trustees are no longer in a position to act impartially for the benefit of all holders of bonds secured by the mortgages, but are acting in all respects subject to the control of the reorganization managers under the plan. These averments are general in their terms. They have been met by specific statements in the affidavits filed in opposition to the motion for intervention. *441 The charges in the petition for intervention have not been sustained. The trustees have acted in strict accordance with their duties under the terms of the mortgages and indentures of which they are trustees. The fact that a majority of the bondholders have joined in a reorganization plan does not strip them of their rights under the mortgages and indentures to control the acts of the trustees with reference to the foreclosure proceedings.
The trustees in this case have obtained a decree in which the right of minority bondholders to be heard upon the acceptance of bids and the approval of plans is fully protected. To a very high degree the trustees have acted in the interest of all the bondholders, giving due effect to the terms of the mortgages and indentures which are binding upon trustees and all bondholders alike. Under the terms of the mortgages and indentures, the majority bondholders were entitled to the decree which has been entered. They are entitled to its execution. When it comes to turning over the property under a reorganization plan, courts will be vigilant to protect minorities against oppression and fraud. They will be equally vigilant to see that dissenting bondholders be not permitted to create a maneuvering value in their bonds.
The rules for which petitioners contend, carried to their logical conclusion, overturn the established law with reference to mortgages and trust deeds, and give to minority bondholders an absolute right of intervention. The broad provisions in the decree for the protection of the rights of all bondholders and stockholders render inapposite Louisville Trust Co. v. Louisville, N. A. & C. R. Co., 174 U. S. 674, 19 S. Ct. 827, 43 L. Ed. 1130, and kindred cases referred to by counsel for the petitioners.
The alleged unfairness of the reorganization plan proposed by the majority bondholders is not a ground for intervention. The decree provides a method for the consideration of that plan, if it is brought before the court. The question here is that of the disqualification of the trustees. And, upon the record before the court, it clearly appears that they are not disqualified by reason of anything done in connection with these foreclosure proceedings, or in the performance of their duties under the mortgages and indentures.
It is charged that the trustee of the mortgage acted as a depositary under the deposit agreements of the bondholders' committee, and later, by reason of that committee having adopted a reorganization agreement, acted under that agreement as depositary for the same bonds. There is nothing in these facts, however, showing disqualification or unfairness of the trustee. Fidelity Trust Co. v. Washington-Oregon Corp. (D. C.) 217 F. 588, 593, 595, 596; Palmer v. Bankers' Trust Co. (C. C. A.) 12 F.(2d) 747, 753.
The fact that a majority of the holders of the refunding bonds have joined with a majority of the holders of the Puget Sound bonds in a reorganization plan furnishes no ground for intervention. It cannot take away from the majority of the holders of the refunding bonds their rights under the terms of their mortgage. Its effect, if any, will be determined by the court when the reorganization plan is before the court in such a way that it can be acted upon judicially.
The motion of Edwin C. Jameson et al. for leave to file the amended and supplemental intervening petition herein is denied, and an order to that effect is entered.
II. Motion of Plaintiffs to Fix Date of Sale.
Five months have elapsed since the entry of the decree of sale. Eighty per cent. of the bondholders insist upon their right to have a date fixed for the sale, to the end that bids may be received and something definite brought before the court for consideration. They assert that so long as the receivership continues they are deprived of any return upon their investment; that a continuance of the receivership will result in further impairment of the good will of the railroad; that the receivers cannot provide at reasonable cost the funds constantly needed for capital improvements upon the properties; that many needed economies in operation cannot be secured during the receivership; and that the efficiency and prosperity of the railroad cannot be completely restored until the termination of the receivership.
Certainly, after the lapse of five months, it would be an unwarranted and arbitrary exercise of the court's power to deny to this great majority of the bondholders the opportunity to take the first step toward working out a solution of their problem. And this is particularly true in view of the provisions of the decree, which reserve to all stockholders and bondholders the right to be heard upon bids which may be made for the properties and plans of reorganization which may be submitted.
Delay is sought for the purpose of making *442 an expert examination of the property and accounting records of the railway. But almost as much time has elapsed since the entry of the decree as is now sought for that purpose. It must be borne in mind that the Jameson committee was organized more than 10 months ago. It is in no position to ask further delay, when the rights of the majority of the bondholders to have the decree executed are considered.
It is urged that there should be no sale until Congress has had another opportunity to pass a bill for the refunding of the government loans. It will serve no useful purpose to enter upon a recital of the facts concerning those loans and the attempts to obtain legislation in the past. The view that the court should not even fix a date for the sale until the expiration of the next session of Congress cannot be accepted.
Under the terms of the decree almost two months must elapse before the sale can be held and the master's report brought before the court. If there should be legislation by Congress while a plan of reorganization is under consideration by the court, it will be possible, under the terms of the decree, to adjust the plan to the conditions of the new legislation. In view of the broad provisions of the decree, the appeal for delay on this ground is without merit.
The date of sale is fixed for November 22, 1926, at 11 o'clock a. m., Mountain standard time.
III. Motion to Fix Upset Price.
The decree provides that, when the court fixes the date of sale, it will also fix the amounts of minimum bids or upset prices which will be received for the parcels to be offered, either separately or together, and that the master shall not receive any bid for such parcels, when offered either separately or together, less than the respective amounts so fixed. The upset prices so fixed are made the basis of the deposits required from prospective bidders, which deposits are to be forfeited in case of the failure of the bidders to make good their bids. So far as the decree is concerned, this is the only real function of the upset price. The decree expressly reserves to the court the right to accept or reject bids after they have been made.
Manifestly the naming of an upset price is not a ruling that a bid as low as the upset price will be approved in the end. It has been pointed out that the court should not be asked to indicate approval or disapproval of a plan which is not before it in such a way that the ruling of the court can be made effective. It is likewise true that the court cannot be required to make an anticipatory ruling as to the adequacy of a bid until it is formally before the court for action and is considered in all of its aspects. The decree requires bidders who present a plan of reorganization to submit the plan with their bids, and the adequacy of a bid as furnishing a basis for determining the distributive shares of those bondholders who elect not to participate in the reorganization must be viewed in the light of all of the elements of the proposed plan. It is not for the court to instruct prospective bidders with reference to their bids. Bidders must exercise their own independent judgment. And when the bids are before the court their adequacy will be determined in the light of all the circumstances after an opportunity has been given to all stockholders, bondholders and other parties in interest to be heard. About all that can be said of the "upset price," to use the language of counsel for the majority bondholders, is that "it reduces the chances that the confirmation of the sale will have to be withheld because of the inadequacy of the bid."
What the court is doing in naming an upset price is merely to draw a line below which it will refuse to consider bids. It is discretionary with the court, but quite common, to fix an upset price. Palmer v. Bankers' Trust Co. (C. C. A.) 12 F.(2d) 747, 754, and cases cited. Some judges, following the course of strict consistency, have the view that the court should consider all bids, and should never make an anticipatory ruling as to the adequacy of a bid until the bidder is before the court in such a way that his bid can be accepted or rejected, and, if accepted, enforced by the court.
There is much to be said in support of this view. Plaintiffs are entitled in the end to have the mortgaged property sold to satisfy their debt. If the property does not bring the upset price, they would be entitled at some time to a resale at a lower price. And the court is always in a position to protect the rights of all parties upon the formal consideration of a bid actually made.
The decree here, however, calls for an upset price. The question is entirely different from that of the adequacy of a bid which has been actually made, and which is formally before the court for acceptance. The court is asked to indicate its view as to the very lowest bid for whose adequacy the proponents will be permitted to contend when it is brought before the court. If the *443 adequacy of a bid is fairly debatable, and no higher bid is offered, certainly a chance should be given upon a formal hearing to support the bid. It was with this in mind that the hearing as to the upset price has been upon affidavits.
The committee representing over 80 per cent. of the refunding and Puget Sound bonds ask the court to fix an upset price of $100,000,000, distributed as follows: $40,000,000 for the Puget Sound property; $50,000,000 for the property (other than the Puget Sound bonds) subject to the refunding mortgage; and $10,000,000 for the unpledged assets.
The Jameson committee, which has been fully heard on this application, asserts that these upset prices are too low, and claims that $250,000,000 is the lowest upset price which should be named, to be distributed as follows: $80,000,000 for the property subject to the Puget Sound mortgage; $150,000,000 for the property (other than the Puget Sound bonds) subject to the refunding mortgage; and $20,000,000 for the unmortgaged assets.
The property (other than Puget Sound bonds) covered by the refunding mortgage is to be sold subject to senior liens of more than $156,000,000. Out of the issue of $181,684,500 of Puget Sound bonds, $154,489,500 are pledged under the refunding mortgage. Taking these facts into consideration, it is clear that the Jameson committee is contending for upset prices, in which undue emphasis is placed upon those elements of physical valuation which are of dominant importance in fixing a valuation for rate-making purposes; and the valuation here is not for rate-making purposes. It is a minimum valuation for purposes of sale, where the plaintiffs are entitled to require a sale within a reasonable time.
One fact alone precludes the adoption of these excessive upset prices at the insistence of the Jameson committee. A very considerable portion of the bonds represented by the Jameson committee were acquired by their present owners, either shortly before the receivership or during the pendency of this litigation. These were purchased at prices around 50 cents on the dollar. Their owners are here protesting that more than 80 per cent. of the junior bondholders shall not even be given a chance to have a bid for the property considered, except upon terms which will give to the dissenting bondholders a distributive share in the proceeds of the sale yielding more than 80 cents on the dollar a profit to the dissenters of several million dollars. Nothing more than the statement of this proposal is required. It cannot be adopted. Palmer v. Bankers' Trust Co., supra; Investment Registry, Limited, v. Chicago & M. E. R. Co. et al., 212 F. 594, 609, 129 C. C. A. 130.
Taking into consideration the evidence as to the value of the property, its earning capacity, past and present, the history of the road, and the market prices of the securities represented in this foreclosure, the court fixes the upset prices pursuant to the terms of the decree as follows: Parcel 1 (Puget Sound property), $42,500,000. Parcel 2 (property subject to refunding mortgage other than Puget Sound bonds) $67,500,000. Parcel 3, the aggregate of the sums required as to parcel 1 and parcel 2. Parcel 4 (unpledged assets), $12,500,000. Parcel 5, the aggregate of the sums required as to parcel 1, parcel 2, and parcel 4.
The order fixing the date of sale and upset prices will be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/654314/ | 6 F.3d 779
Lee (Chong B.)v.American Express Travel Related Services, Inc., Amex LifeAssurance Company
NO. 92-5693
United States Court of Appeals,Third Circuit.
Aug 11, 1993
Appeal From: D.N.J.,
Debevoise, J.
1
AFFIRMED. | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/239006/ | 231 F.2d 544
WAYLYN CORPORATION, Defendant, Appellant,v.UNITED STATES of America, Plaintiff, Appellee.GARDEN CORPORATIONv.UNITED STATES of America.PIEDMONT CORPORATIONv.UNITED STATES of America.OKLAHOMA CORPORATIONv.UNITED STATES of America.HILL CORPORATIONv.UNITED STATES of America.PONCE DARLINGTON, Inc.v.UNITED STATES of America.RIO PIEDRAS DARLINGTON, Inc.v.UNITED STATES of America.MAYAGUEZ DARLINGTON, Inc.v.UNITED STATES of America.
Nos. 5039-5046.
United States Court of Appeals First Circuit.
Heard February 8, 1956.
Decided April 3, 1956.
William G. Grant, Atlanta, Ga., with whom Garrard Harris and Benicio Sanchez Castano, San Juan, P. R., were on brief, for appellants.
Ruben Rodriguez Antongiorgi, U. S. Atty., San Juan, P. R., for appellee.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.
MAGRUDER, Chief Judge.
1
These cases are all essentially the same, and reference will be made only to Waylyn Corp. v. United States, No. 5039.
2
The United States filed its complaint in the United States District Court for the District of Puerto Rico, seeking in a foreclosure proceeding to recover on a mortgage note given by defendant Waylyn Corp. to Manufacturers Trust Co. The loan for which the note was given was secured by a mortgage insured by the Federal Housing Administration pursuant to the provisions of the National Housing Act, 12 U.S.C.A. § 1702 et seq. Upon a default, as alleged, the mortgage note was assigned to Guy T. O. Hollyday, as Federal Housing Commissioner, together with all rights under the mortgage securing the same.
3
Waylyn Corp. filed an answer and a counterclaim for damages against the United States in the sum of $1,551,902.00. By virtue of the allegations of the answer and counterclaim, defendant's prayer was that the complaint be dismissed and that an affirmative judgment be rendered against the United States in the sum just mentioned.
4
The counterclaim undertook to state a cause of action sounding in tort, alleging that Waylyn Corp. had suffered pecuniary losses in consequence of wrongful action of the Federal Housing Administration in willfully and arbitrarily withholding occupancy permits and willfully and arbitrarily causing the publication of a newspaper announcement to the effect that Waylyn Corp. was without authority to sell the dwellings in the housing project covered by the mortgage.
5
Upon motion, the district court entered a "final judgment" dismissing this counterclaim for lack of jurisdiction, reciting in accordance with Rule 54(b), Fed.Rules Civ.Proc. 28 U.S.C. that there was no just reason for delay. The present appeal is from this judgment.
6
In its memorandum opinion the district court considered, and rejected, the possibility that the counterclaim might fall within the consent of the United States to be sued as contained in the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. Appellant makes no challenge to this ruling of the district court, and we take it that we may leave the Federal Tort Claims Act out of account.
7
In the National Housing Act, it is provided, 12 U.S.C.A. § 1702, that the Federal Housing Commissioner shall, in carrying out the provisions of the Act, "be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal." This no doubt constituted a partial waiver of governmental immunity, to the extent that it permitted a suit against the Commissioner in his official capacity; but the statutory provision falls short of a consent that the United States as such may be sued on a claim arising out of the administration of the National Housing Act. The practical difference is pointed out in Federal Housing Administration, Region No. 4 v. Burr, 1940, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724. There, after holding that 12 U.S.C.A. § 1702 should be construed liberally to constitute a consent that the Federal Housing Administrator (now Commissioner) might be subjected to garnishment proceedings on account of moneys payable by the Federal Housing Administration to an employee, the Court ended up its opinion with the following, 309 U.S. at pages 250, 251, 60 S.Ct. at page 493:
8
"Petitioner claims that execution should not have been allowed under the judgment. The Act permits the Administrator `to sue and be sued in any court of competent jurisdiction, State or Federal.' Whether by Michigan law execution under such a judgment may be had is, like the availability of garnishment, Federal Land Bank [of St. Louis] v. Priddy [1935, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408], a state question. And so far as the federal statute is concerned, execution is not barred, for it would seem to be part of the civil process embraced within the `sue and be sued' clause. That does not, of course, mean that any funds or property of the United States can be held responsible for this judgment. Claims against a corporation are normally collectible only from corporate assets. That is true here. Congress has specifically directed that all such claims against the Federal Housing Administration of the type here involved `shall be paid out of funds made available by this Act (chapter).' § 1. Hence those funds, and only those, are subject to execution. The result is that only those funds which have been paid over to the Federal Housing Administration in accordance with § 1 and which are in its possession, severed from Treasury funds and Treasury control, are subject to execution. Since no consent to reach government funds has been given, execution thereon would run counter to Buchanan v. Alexander [1846, 4 How. 20, 11 L.Ed. 857]. To conclude otherwise would be to allow proceedings against the United States where it had not waived its immunity. This restriction on execution may as a practical matter deprive it of utility, since funds of petitioner appear to be deposited with the Treasurer of the United States and payments and other obligations are made through the Chief Disbursing Officer of the Treasury. But that is an inherent limitation, under this statutory scheme, on the legal remedies which Congress has provided. And since respondent obtains its right to sue from Congress, it necessarily must take it subject to such restrictions as have been imposed. The fact that execution may prove futile is one of the notorious incidents of litigation, as is the fact that execution is not an indispensable adjunct of the judicial process." [Italics added.]
9
Whether we like the doctrine of sovereign immunity of the United States or not, we must take it as established law that the United States cannot be sued without its consent. It is clear that no court, federal or state, would have had jurisdiction to entertain an original complaint by Waylyn Corp. against the United States on the cause of action stated in the counterclaim. The filing of a suit in the name of the United States does not in itself amount to a waiver of sovereign immunity, subjecting the United States to an affirmative adverse judgment on a counterclaim filed by the defendant in such suit. This settled doctrine is reaffirmed, maybe out of an excess of caution, in Rule 13(d) of the Federal Rules of Civil Procedure, providing:
10
"Counterclaim Against the United States. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof."
11
As this court said in United States v. Silverton, 1 Cir., 1952, 200 F.2d 824, 826:
12
"But it is clear that the United States, by filing its original complaint against the defendant in the court below, did not thereby consent to be sued on a counterclaim based upon a cause of action as to which it had not otherwise given its consent to be sued. United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888."
13
Compare National City Bank of New York v. Republic of China, 1955, 348 U.S. 356, 75 S.Ct. 423, 99 L.Ed. 389, which is not cited or relied on by appellant herein, and which case we suppose was not intended to overturn the holding in United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888.
14
The situation presented in this case is no doubt peculiar, and we are frank to say that it does not look quite right. Perhaps this results from the fact that though 12 U.S.C.A. § 1702 would have permitted the instant complaint to have been filed by the Federal Housing Commissioner in his own name and in his official capacity, nevertheless the complaint here was filed in the name of the United States itself as the real party in interest. And we are bound to recognize that such suit may be prosecuted by the United States in its own name, since it was so held in United States v. Summerlin, 1940, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283.
15
Neither the district court nor we have adjudicated the merits of the cause of action asserted in the counterclaim. The judgment dismissing the counterclaim for lack of jurisdiction is without prejudice to the assertion against the Federal Housing Commissioner in some court of competent jurisdiction of the cause of action alleged in the counterclaim. Nor do we consider or determine whether the United States, under its complaint still pending in the court below, would be entitled to a judgment against Waylyn Corp. for the full amount unpaid on the mortgage note without diminution by way of set-off for damages which might have been asserted in a claim against the Federal Housing Commissioner had that official brought the present suit.
16
The judgments of the District Court are affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1587664/ | 33 So. 3d 884 (2010)
In re Kenneth A. BACK.
No. 2009-B-2636.
Supreme Court of Louisiana.
April 23, 2010.
*885 ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Kenneth A. Back, an attorney licensed *886 to practice law in Louisiana, but currently ineligible to practice.[1]
FORMAL CHARGES
Count IThe Bourque Matter
In February 2003, Darrel and Carolyn Bourque hired respondent to handle the succession of Darrel's father.[2] Shortly thereafter, the Bourques hired respondent to handle the succession of Darrel's stepmother.[3] Darrel was executor of both estates.
Respondent repeatedly failed to communicate with Darrel. He also failed to provide the opposing counsel with discovery responses and failed to arrange for real estate appraisals. Consequently, the real estate was sold below market value, and Darrel was sued on a lesion claim. Respondent informed the Bourques he would represent them in the lesion claim but never performed any work on the matter. Ultimately, the Bourques had to hire another attorney to represent Darrel.
In July 2007, Carolyn filed a disciplinary complaint against respondent, who failed to respond to the complaint in writing. Accordingly, the ODC issued a subpoena to obtain his sworn statement. During the December 2007 sworn statement, respondent admitted he did not diligently handle the successions. He did, however, obtain a judgment of possession in the first succession. He also admitted he failed to communicate with Darrel. The ODC requested that respondent provide it with written documentation regarding the status of the second succession. Respondent failed to provide the documentation, despite numerous requests to do so.
The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a) (failure to communicate with a client), and 8.1(c) (failure to cooperate with the ODC in its investigation).
Count IIThe Benoit Matter
In 2005, Steven Benoit hired respondent to represent him in an ongoing defamation lawsuit, paying him a $1,500 deposit. The defendant filed a motion for summary judgment, but respondent failed to file a response to the motion. However, he did appear for the hearing on the motion. After the court granted the defendant's motion for summary judgment, respondent failed to inform Mr. Benoit of the summary judgment and failed to appeal the judgment on Mr. Benoit's behalf. Mr. Benoit made numerous attempts to contact respondent during the representation, but respondent failed to return his phone calls.
In September 2007, Mr. Benoit filed a disciplinary complaint against respondent, who failed to respond to the complaint in writing. Accordingly, the ODC issued a subpoena to obtain his sworn statement. During the December 2007 sworn statement, respondent admitted he did not inform Mr. Benoit of the status of his case. The ODC requested that respondent provide it with a copy of the summary judgment hearing transcript, a complete accounting of his time spent on the matter, *887 and a copy of any correspondence to Mr. Benoit. Respondent failed to provide the documentation, despite numerous requests to do so.
The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4(a), and 8.1(c).
DISCIPLINARY PROCEEDINGS
In October 2008, the ODC filed two counts of formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.
Hearing Committee Report
After considering the ODC's deemed admitted submission, the hearing committee made numerous factual findings, including the following:
6. In a December 13, 2007 sworn statement, respondent admitted he did not diligently handle the successions in the Bourque matter and failed to communicate with the executor.
8. In a December 13, 2007 sworn statement, respondent admitted he had not informed Mr. Benoit of the status of his case.
18. The clear and convincing evidence establishes respondent knowingly and intentionally violated Rules 1.3, 1.4(a), and 8.1(c) of the Rules of Professional Conduct.
19. In sum, the committee found clear and convincing evidence to establish respondent has knowingly, intentionally, and repeatedly violated the Rules of Professional Conduct, as alleged in the formal charges.
Based on these findings, the committee determined respondent neglected legal matters, failed to communicate with his clients, and failed to cooperate with the ODC in its investigation of the complaints filed against him. Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. He caused harm to his clients, the ODC, and others. After examining the ABA's Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.
The committee found the following aggravating factors present: a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and substantial experience in the practice of law (admitted 1985). In mitigation, the committee found that respondent has no prior disciplinary record.
After also considering this court's prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day.
Neither respondent nor the ODC filed an objection to the hearing committee's recommendation.
Disciplinary Board Recommendation
After review, the disciplinary board determined the hearing committee's factual findings are supported by the factual allegations in the formal charges, which are deemed admitted, and/or by the documentary evidence submitted by the ODC in support of those allegations. The board also found the factual allegations have *888 been deemed admitted and proven by clear and convincing evidence. The board determined the committee correctly concluded that respondent violated the Rules of Professional Conduct as alleged in the formal charges.
The board further determined respondent violated duties owed to his clients, the legal system, and the legal profession. His conduct was negligent and knowing. He caused substantial and potentially serious harm. The board agreed with the committee that the baseline sanction is suspension. The board also adopted the aggravating and mitigating factors found by the committee.
After also considering this court's prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to make restitution in the Bourque matter.
One board member dissented in part and would recommend an eighteen-month suspension "for the serious misconduct [respondent] committed in the handling of his clients' cases, and for the serious failure to cooperate with ODC in the investigation of two matters."
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So. 3d 57.
In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So. 2d 715.
The record of this deemed admitted matter indicates respondent neglected three legal matters, failed to communicate with two clients, and failed to cooperate with the ODC in its investigations. Based on these facts, it is clear respondent has violated the Rules of Professional Conduct as charged.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
Respondent knowingly violated duties owed to his clients, the legal system, and *889 the legal profession. His actions caused actual harm to his clients, and his failure to cooperate caused harm to the disciplinary system. The ABA's Standards for Imposing Lawyer Sanctions establish suspension as the baseline sanction for such misconduct.
Aggravating factors present include a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and substantial experience in the practice of law. The sole mitigating factor present is the absence of a prior disciplinary record.
Turning to the issue of an appropriate sanction, we find the jurisprudence supports a suspension from the practice of law for one year and one day in cases involving similar misconduct. For example, in In re: Engum, 09-1619 (La.10/28/09), 21 So. 3d 926, an attorney neglected legal matters, failed to communicate with clients, failed to timely account for or refund unearned fees, and failed to fully cooperate with the ODC in its investigations. For this misconduct, we suspended the attorney from the practice of law for one year and one day. The disciplinary board's recommendation in the instant case is consistent with our holding in Engum.
Accordingly, we will adopt the disciplinary board's recommendation and suspend respondent from the practice of law for one year and one day, thereby necessitating he make a formal application for reinstatement at the conclusion of his suspension. Additionally, we will order respondent to make restitution to the Bourques.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kenneth A. Back, Louisiana Bar Roll number 16796, be and he hereby is suspended from the practice of law for one year and one day. It is further ordered that respondent make restitution to Darrel and Carolyn Bourque. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[*] Chief Justice Kimball not participating in the opinion.
[1] Respondent has been ineligible to practice law since July 2008 for failing to comply with mandatory continuing legal education requirements. He is also ineligible for failing to pay bar dues and the disciplinary assessment, and for failing to file his trust account disclosure form.
[2] According to the disciplinary complaint, respondent charged a total of $8,000 to handle the succession of Darrel's father.
[3] According to the disciplinary complaint, respondent charged a total of $1,800 to handle the succession of Darrel's stepmother. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3032088/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMEO UMAGAT TIMBREZA,
Petitioner, No. 02-72507
v.
Agency No.
A45-228-894
ALBERTO R. GONZALES,* Attorney
General, ORDER
Respondent.
Filed June 7, 2005
Before: William C. Canby, Jr., Kim McLane Wardlaw, and
Ronald M. Gould, Circuit Judges.
ORDER
Petitioner’s unopposed Motion for Voluntary Dismissal of
his Petition for Review is hereby GRANTED.
We previously denied the Petition for Review. Timbreza v.
Ashcroft, 98 Fed. Appx. 611, 2004 WL 1041987 (9th Cir.
2004) (unpublished disposition) (filed May 5, 2004). How-
ever, before that decision was rendered, and without notice
being given to this court by the parties in their briefing or oth-
erwise, on March 3, 2003, the Board of Immigration Appeals
reopened petitioner’s removal proceedings. The result was
that this court was not reviewing a final order of removal,
contrary to the suggestion in the briefs. We have no jurisdic-
tion to review this case without a final order of removal. See,
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
6343
6344 TIMBREZA v. GONZALES
e.g., Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.
2002). The parties are instructed in other like circumstances
to give notice to this court. Our May 5, 2004 disposition,
which rested on the false premise that we were reviewing a
final order of removal, is hereby VACATED.
IT IS SO ORDERED.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1547402/ | 159 B.R. 348 (1993)
In re Donnie W. GILL and Ginger G. Gill, Debtors.
ISLAND BANK OF COLLIER COUNTY, Plaintiff,
v.
Donnie W. GILL and Ginger G. Gill, Defendants.
BARNETT BANK OF NAPLES, a Florida Corporation, Plaintiff,
v.
Donnie W. GILL and Ginger G. Gill, Defendants.
Bankruptcy No. 92-06908-9P7, Adv. Nos. 92-705, 92-741.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
September 23, 1993.
*349 Ronald L. Stetler, Naples, FL, for debtors/defendants.
F. Lorraine Jahn, Miami, FL, for plaintiff Island Bank.
Kevin A. Denti, Naples, FL, for plaintiff Barnett Bank.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THIS IS A Chapter 7 liquidation case. The matters under consideration are two separate assaults on the right to complete relief sought by Mr. and Mrs. Gill (Debtors) in this Chapter 7 case. One is mounted by Barnett Bank of Naples (Barnett) and the other by Island Bank of Collier County (Island Bank).
Barnett seeks a determination in its Complaint that the debt in the amount of $19,070.89 shall be declared to be non-dischargeable based on § 523(a)(6) of the Bankruptcy Code. Particularly, it is Barnett's contention that Mr. Gill willfully and maliciously injured the property of Barnett by converting Barnett's collateral. The collateral was pledged by Mr. Gill to secure a loan granted by Barnett to High Tide, Inc., d/b/a/ Marco Rent-All, a corporation in which Mr. Gill was the principal, 50% shareholder with his wife, and its President.
The claim of Island Bank is also based on § 523(a)(6), claiming an unauthorized disposition of its collateral by Mr. Gill. In addition, Island Bank also challenges the Debtors' right to a general bankruptcy discharge based on § 727(a)(4) and 727(a)(5) of the Bankruptcy Code, respectively. In support of its claim, Island Bank contends that the Debtors committed a false oath in bankruptcy based on § 727(a)(5), and the Debtors failed to explain satisfactorily the loss of their assets to meet their liabilities pursuant to § 727(a)(4).
Before considering the merits of the respective claims of the two Banks, it should be pointed out that this record is totally devoid of any evidence which would warrant granting the relief sought against Mrs. Gill. Therefore, this Court is satisfied that it is proper to dismiss both complaints as they relate to the claims against her. Thus, the balance of the discussion will be limited to the claims asserted against Mr. Gill, hereinafter referred to as the Debtor.
It should be noted that if the record justifies the conclusion set forth by Island Bank, that the Debtor is not entitled to a general discharge, it would not be necessary to consider the claims of non-dischargeability asserted by both Banks. For this reason Island Bank's Objection to the Discharge of the Debtor will be considered first.
Objection to Discharge by Island Bank § 727(a)(4) & (5)
At the time relevant to the matter under consideration, the Debtor and his wife were *350 the sole shareholders of Go-Go, Inc., a/k/a Collier RentAll, (Go-Go), a Florida Corporation. The Debtor was the President of Go-Go and in sole charge of its affairs. Sometime prior to April 3, 1990, the Debtor approached Island Bank and applied for a loan for Go-Go. The application was approved and Island Bank loaned Go-Go $65,097.50. As part of this transaction, the Debtor executed a Promissory Note in favor of Island Bank as President of Go-Go. This note was to mature on or before June 22, 1990. To secure this loan, Mr. and Mrs. Gill pledged a Certificate of Deposit (CD) in the amount of $85,694.69. In addition, Mr. Gill executed a guarantee in favor of Island Bank to provide further security to Island.
On June 22, 1990, the Bank agreed to roll over the loan for an additional 92 days. The renewal was documented by execution of a new note in the principal amount of $80,097.50 which was also secured by the same CD. This was also a time note and was to mature on September 22, 1990. On December 5, 1990, the note was renewed again with the execution of a new note in the principal amount of $80,000.00. This note was to mature on December 5, 1993, but unlike the previous notes, this note required, for the first time, monthly installment payments of $1,102.00 until maturity. This note, in addition to the CD pledged previously, was also secured by equipment and fixtures owned by Go-Go. All the notes discussed earlier were personally guaranteed by separate guarantees executed by the Debtor. Apparently, in June, 1991, for reasons not explained, Island Bank released the CD. This left the equipment and fixtures owned by Go-Go as the only collateral securing the outstanding obligation of Go-Go. Go-Go defaulted on its obligation to make monthly payments on the last note.
To further complicate the matter, the Debtor was a principal stockholder and officer of a Florida Corporation known as High Tide, Inc., a/k/a Marco RentAll (High Tide). On May 7, 1991, the Debtor approached Island Bank and sought a loan in the amount of $20,000.00 on behalf of High Tide. The application was granted and Island Bank loaned High Tide $20,000.00. The Promissory Note was signed by the Debtor as President of High Tide. This note was to mature on November 7, 1991, and required only monthly interest payments until maturity. The note was not secured by any collateral. On November 7, 1991, this note was renewed by the execution of a new note by the Debtor, again as President of High Tide, in the principal amount of $20,064.32. The note was also unsecured and, like the previous note, required only monthly interest payments until maturity. This note was to mature on May 7, 1992. Both the first and the second High Tide notes were personally guaranteed by the Debtor by separate guarantees executed by him on May 7, 1991. High Tide, just like Go-Go, defaulted on the note.
When Go-Go defaulted on its last note, Island Bank attempted to recover its collateral, the fixtures and equipment of Go-Go. Not able to locate its collateral, Island Bank sought the assistance of the Sheriff's Office of Collier County and requested an investigation to determine the whereabouts of its collateral. The detective in charge of the investigation contacted the Debtor who informed the detective that the collateral of Go-Go was stored at the business premises of High Tide and that Island Bank was free to repossess its collateral. The day after his visit with the Debtor, the detective visited the premises of High Tide and inspected certain inventory items which were identified by the Debtor's wife as Go-Go's collateral. The detective compared the inventory identified by Mrs. Gill with a list of Go-Go collateral furnished to him by Island Bank and found that the inventory which was on the premises matched most of the equipment listed on the schedule of the collateral given to the detective by Island Bank. The equipment was ostensibly displayed to be rented to the public and appeared to be in satisfactory condition. Having concluded that no violation occurred, the Sheriff's Office considered the matter closed.
Although it is not clear from the record, it appears that subsequently the Debtor *351 entered into a contract to sell all of the assets of High Tide to one Jeffrey Becker for $100,000.00. In contemplation of the proposed sale, the Debtor furnished Becker with a list of the assets to be included in the sale. Mr. Becker approached Island Bank and applied for a loan to finance the purchase. He submitted to Island Bank the list of the assets which were to be included in the purchase. The list furnished to Island Bank appeared to include the very same equipment which was pledged to Island Bank as security for the loan granted to Go-Go. When informed of this fact, Becker became alarmed and decided to conduct an inventory check of the assets offered for sale. When he compared the serial numbers of the equipment actually located on the premises of High Tide with the list of Go-Go equipment pledged as collateral to Island Bank, he discovered that a substantial amount of the equipment which he was to purchase was in fact the equipment pledged as collateral for Go-Go to Island Bank. In light of this unexpected turn of events, Becker notified the Debtor on August 3, 1992 that he was unwilling to proceed and go through with the sale. On the morning of the following day, Becker's son drove by the premises of High Tide and observed that substantially all of the equipment stored outside the building the previous day was no longer there.
In search of its collateral, Island Bank applied for and obtained a Writ of Replevin on August 4, 1992, and delivered the Writ to the Sheriff with directions to find its collateral and levy on the same. In addition, Island Bank requested the Sheriff's Department to reopen the investigation. The detective placed in charge of the investigation contacted the Debtor again who informed the detective that unfortunately, 90% of the equipment securing Island Bank's loan had either been sold or junked because rental equipment wears out quickly and has to be junked and replaced frequently. The Sheriff was unable to affect a levy since Island Bank collateral could no longer be located.
When confronted, the Debtor informed Island Bank that the remaining collateral was in a storage facility and the Bank was free to proceed to repossess what was left. Island Bank declined to repossess the equipment found in the storage facility because the serial numbers on the equipment did not match any of the serial numbers of the equipment listed on the original inventory of the collateral. On May 20, 1992, the Debtors filed their Petition under Chapter 7 of the Bankruptcy Code. In their Schedule of Assets, the Debtors failed to disclose their ownership of the stock in Go-Go or that the Debtor was an officer of Go-Go.
Basically these are the relevant facts established at the final evidentiary hearing which, according to Island Bank, would warrant the denial of the Debtor's discharge based on either § 727(a)(4) or § 727(a)(5), respectively.
The first claim of Island Bank that the Debtor is not entitled to a general discharge is based on § 727(a)(4) which provides as follows:
Section 727(a)(4)
(a) The court shall grant the debtor a discharge, unless
. . . . .
(4) the debtor knowingly and fraudulently, or in connection with the case
(A) made a false oath or account;
(B) presented or used a false claim;
In the alternative Island Bank asserts that the Debtor is not entitled to a discharge based on § 727(a)(5). Section 727(a)(5) provides ...
(a) The court shall grant the debtor a discharge, unless
. . . . .
(5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor's liabilities;
It no longer can be gainsaid that the standard of proof required to deny discharge under § 727(a)(4) or (5) is no longer clear and convincing but merely the *352 preponderance of evidence. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991). To sustain a claim under § 727(a)(4), it is the burden of the creditor to establish by a preponderance of the evidence that the Debtor knowingly and fraudulently in connection with the case made a false oath or account.
While it is also true that the discharge provisions of the Bankruptcy Code are remedial in nature and, therefore, should be liberally construed in favor of the Debtor and against the creditor who challenges the Debtor's right to discharge, discharge is only available to honest Debtors.
It is undisputed that the Debtor neither disclosed his stock ownership in Go-Go nor did he disclose on the Statement of Financial Affairs that he was an officer and director of Go-Go. In defense, it is the contention of the Debtor that the omission was not willful and intentional and was merely an oversight due to the fact that Go-Go was out of business, and thus the stock was worthless.
Ordinarily an omission of an asset of very little or no value would not warrant denial of the general discharge. It is equally true, however, that the Debtor has an absolute obligation to make a full disclosure of all of his assets and liabilities. Further, it is not for the Debtor to determine the value of the assets or to determine if the assets do not have any value. In re Ingersoll, 124 B.R. 116 (Bankr. M.D.Fla.1991). There is no question that the creditors are entitled to a full and complete disclosure, and the creditor has the right to make that determination. In re Kaiser, 94 B.R. 777 (Bankr.S.D.Fla.1988).
It is without dispute that the Debtor shifted the collateral pledged not only to Island Bank but also to Barnett Bank as it suited his purpose. This shell game did prevent both Banks from asserting their legal right to their respective collateral. It was clear that when the "now you see it, now you don't" game was over, there was no collateral of any consequence at any place and the Debtor never furnished an adequate and satisfactory explanation of its disappearance. The assertion of the Debtor that this type of equipment has a short useful life and because of the type of usage they junked and discarded it, is simply not believable and as such must be rejected. It should be pointed out that on August 4, 1992, a day after the Debtor was told by Becker that he no longer wished to go through with the proposed sale, all equipment which was at the High Tide premises was gone and no satisfactory explanation was ever furnished for its disposition.
In sum, this Court is satisfied that Island Bank did establish with the requisite degree of proof, that the Debtor Mr. Gill is not entitled to a general discharge. It is unnecessary to consider the alternative claims of nondischargeability asserted by Island Bank and by Barnett Bank based on § 523(a)(2) or § 523(a)(6).
As noted earlier, nothing in this record warrants a denial of Mrs. Gill's discharge. The Bank's Complaint against her should be dismissed with prejudice. A separate Final Judgment will be entered in accordance with the foregoing in each adversary proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1547397/ | 15 F.2d 652 (1926)
BITTNER et al.
v.
WEST VIRGINIA-PITTSBURGH COAL CO.
No. 2409.
Circuit Court of Appeals, Fourth Circuit.
October 29, 1926.
*653 *654 Henry Warrum, of Indianapolis, Ind. (T. C. Townsend, of Charleston, W. Va., on the brief), for appellants.
John A. Howard, of Wheeling, W. Va. (Wm. C. Howard and J. M. Ritz, both of Wheeling, W. Va., on the brief), for appellee.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
WADDILL, Circuit Judge (after stating the facts as above).
The sequence of the various steps in the suits are: (1) Filing of the bill of May 11, 1925; (2) motion to dismiss, made May 15, 1925; (3) awarding the preliminary injunction on May 19, 1925; (4) motion to dissolve the preliminary injunction on May 19, 1925; (5) answer of the defendants filed May 22, 1925; and (6) the action of the court on the motion to dissolve the injunction, and entering the decree denying the same, filed June 2, 1925.
Four grounds are assigned, and especially insisted upon, for reversing the decree of the District Court, namely: First, that under the doctrine of res adjudicata, the complainant is not entitled as against the defendants to the relief prayed for in the bill; second, that the court is without jurisdiction to afford the relief sought; third, that the decree asked for would be violative of the law; and, fourth, that the granting of the same would create an unconscionable situation, whereby the United Mine Workers of America would be entirely denied the right of having their side of the controversy heard.
The doctrine of res adjudicata, sought to be invoked, is predicated alone upon the fact that heretofore the litigation in question has been fully heard and determined adversely to the complainant, and that the same cannot be reopened and heard anew in this proceeding. Briefly, the defendants' position is that on the 2d of December, 1913, complainant, in its bill in equity against John P. White and the defendant Van A. Bittner, and others, procured an injunction seeking to secure relief of the character herein asked, which injunction, however, was modified, pursuant to a decree of the Circuit Court of Appeals for this circuit, on the 3d day of July, 1914, and on the 10th of July, 1923, the injunction in its modified form was made permanent, and that in addition a contempt proceeding was duly instituted by the complainant in that cause, seeking to secure the benefits of the injunction proceeding.
The contempt proceedings in this cause were dismissed, and the original injunction, as modified by the Circuit Court of Appeals, was attempted to be enforced; but upon consideration of the application herein for injunction, and in the light of the disposition of the contempt proceedings favorably to the *655 defendants, the temporary injunction of the 19th of May, 1925, was modified by the omission of the seventh paragraph thereof, which resulted, in effect, in the reinstatement of the original injunction of the 2d of December, 1913. This whole theory of the doctrine of res adjudicata as applicable to the present case is predicated upon the fact that what was done in the first case was dependent upon the same facts as those here involved. This is by no means true. The cases depend entirely upon a different state of facts, though they refer to the same general subject-matter.
The first original injunction suit against White and Van Bittner involved many of the legal questions that arise here, and the dismissal of the defendants in the contempt proceeding was because it was held that they had not violated the injunction order in the first case. But, further than that, what was done either in equity or under the contempt proceeding should not control in the determination of the action to be taken here. More than 12 years have elapsed since the suit in the White case was instituted, since which time, certainly for the period covering from 1917 to the 2d of January, 1922, some five years afterwards, the complainant's mines were operated on the union basis, and hence the facts controlling this situation depend upon what occurred on and after the 1st of March, 1925, indeed, if not since 1922, when complainant again attempted to operate its mines as nonunion mines.
The facts as to what occurred in reference to the original injunction have no material bearing here. On the contrary, the condition prevailing and what occurred after the effort to operate the complainant's mines upon the original plan of nonunion mines should control. The authorities are quite clear as to this question, and the effect of new litigation of this character, and when it is sought to use or avail of what occurred in the first suit as an estoppel in the new, it is entirely manifest that in such cases we must necessarily determine what was the cause actually litigated and determined in the original suit.
"If it is doubtful whether a second suit is for the same cause of action as the first, it has been said to be a proper test to consider whether the same evidence would sustain both. If the same evidence would sustain both, the two actions are considered the same, and the judgment in the former is a bar to the subsequent action, although the two actions are different in form. If, however, different proofs would be required to sustain the two actions, a judgment in one is no bar to the other. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it has even been designated as infallible. Sometimes the rule is stated in the form that the test of the identity of causes of action for the purpose of determining the question of res judicata is the identity of the facts essential to their maintenance." 15 Rawle C. L. topic "Judgments," § 439.
"Where, however, the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action. In order that a judgment may operate as a bar to the prosecution of a second action and conclude parties and privies as to all matters which might have been litigated in the first action, there must be identity of the subject-matter of the suit, of the cause of action, of the persons and parties, and of the capacity in which the parties appear as litigants, or as it is sometimes expressed, identity of the quality in the persons for or against whom the claim is made." 15 Rawle C. L. supra, § 429.
"It is not the mere recovery in a prior action that constitutes the bar or estoppel, but the decision upon the merits of the question in dispute between the parties, and in order to be conclusive as an estoppel, or as a bar under the doctrine of res judicata, the general rule is that a judgment must have been rendered on the merits of the case." 15 Rawle C. L. supra, § 431.
"But when after the entry of a judgment subsequent events transpire creating a new legal situation, the judgment may no longer act as an estoppel to prevent a new suit." R. C. L. supra, § 437, p. 962.
The case of Tosh and Others v. West Kentucky Coal Co., 252 F. 44, 164 Cow. C. A. 156, 15 A. L. R. 376, a decision of the Circuit Court of Appeals for the Sixth Circuit, will be found of special interest. There the *656 West Kentucky Coal Company filed a bill in equity during a strike affecting its employés and its mining business, in an attempt to unionize its mines. In November, 1907, a final decree was entered enjoining the defendants and all others associated with them, and all persons whatsoever who had acquired notice, information, or knowledge of the decree, from in any manner interfering with or molesting, hindering, obstructing, or stopping any of the business of the complainant, or its agents, servants, and employés, in the operation of its business at any of its mines, or upon any of its property. On the 2d of June, 1917, the coal company instituted contempt proceedings against the defendants, and upon trial by jury they were convicted of contempt of court for violating the injunction, and were sentenced to terms of imprisonment. Upon a writ of error brought to review and reverse the conviction, the court on page 48 (164 Cow. C. A. 160) said:
"Does it appear that the condition existing in 1917, when the alleged violation of the injunction was committed, was in substance the strike of 1907, or that plaintiffs in error were so far associated with, or so far represented, the defendants in the injunctional decree, as to make them amenable to it by reason of their acts in 1917? We find nothing in either allegations or proofs indicating that the strike of 1907, or the interference with the business of complainant which formed the basis of the injunction, had continued subsequent to the decree made in that year, or that the conditions existing in 1917 were anything more than a new and independent effort to unionize the mines. The most which can be said is that there was danger of a strike or of serious troubles if agitation was permitted, or interference with the company's employés tolerated, and that the issue of union or nonunion mines was the same in 1917 as it had been in 1907."
Again, on page 50 of the same case (164 Cow. C. A. 162), the court said:
"The conviction of plaintiffs in error by the jury was made to depend solely upon their making the threats or committing the acts of violence charged against them, with knowledge that the employé so threatened or subjected to violence was in the company's service or employment, and with intent to prevent such employé from continuing therein or from performing his services in such employment, as the case may be. If the injunction of 1907 is of its own force applicable to new conditions in 1917, no reason appears why it would not be applicable to conditions 20 years, or even 30 years, after the decree is entered, provided the union which was back of the attempted unionizing of the mines in 1907, out of which the injunction grew, was also back of the new and independent attempt to unionize the mines 20 or 30 years later. Under such circumstances the recognition of the power of summary prosecution for contempt, without previous adjudication that the existing conditions are such as to justify injunction, especially where the remedy is sought to be exercised, not through the public officers, but by the employer alone, and primarily on behalf of its private interests, is fraught with great possibilities for oppression."
Paragraph 3 of the syllabus of the said case is as follows:
"A decree in a strike suit enjoining defendants `and all other persons whatsoever who may have acquired notice, information, or knowledge of this judgment' from interfering by threats, violence, or intimidation with complainant's employés binds persons having notice who, although not parties, were in privity with the defendants, but persons not parties nor privies, who ten years later took part in another and unrelated strike as members of the same labor union are not amenable to such decree, although served with notice."
In the present case, the injunction decree in the old suit was entered in 1913, and had reference to conditions existing then, as alleged in the bill of complaint, and the evidence was to prove the then existing conditions. The decree in that case referred to and determined the rights of the parties as of that time, and held that the acts done at that time were in violation of the then rights of the parties. The final decree, it is true, was entered in July, 1923, in the suit brought in 1913, and the 1913 decree could only have been supported by proof of the allegations of the bill filed at that time. Van A. Bittner is the only party to the present suit who was a party to the 1913 suit, and the defendants in this suit, who were officers of the United Mine Workers of America, because of that fact, and not in privity with different individuals who were their predecessors in office in 1913, are not bound by the decree in that suit.
The bill in this case charges that about the 1st of March, 1925, the defendants and each of them did conspire and confederate together for the purpose of unionizing all of the nonunion mines of northern West Virginia, and in furtherance of that conspiracy did, during the month of April, 1925, entreat, entice, and persuade a great number of *657 complainant's employés to break their contracts of service hereinbefore mentioned; they, the defendants, well knowing at the time that complainant's mines were being operated on a nonunion basis, and under contract as aforesaid with its employés to that end.
The defendants, it is true, were acquitted in the contempt proceedings instituted against them for alleged violations of the injunction order of 1913. This, however, in no way affects complainant's right to the injunction prayed for, as the alleged contempt related to the old case, and not to this.
Appellants question the jurisdiction of the court to hear and determine the issues raised by the pleadings. Upon what theory this contention can be made successfully is difficult to perceive, as it seems manifest that the court is clothed with full power, authority, and jurisdiction, as well of the subject-matter as of the parties to the litigation. The general purpose of the suit is to preserve and protect to complainant its lawful right to use and enjoy its property. It is the undisputed owner of valuable coal properties, particularly the three large coal-mining properties described in the bill and located in the state of West Virginia, in the Northern judicial district of that state. The mines are operated by complainant in the production of coal therefrom, which is sold for use within and without the state; the mines being operated on what is known as the nonunion basis.
The grievances of the complainant, as averred, are that the appellants upon whom service of process was duly made, as well individually as officers and agents of the United Mine Workers of America, have set about and combined and confederated among themselves and with others to forcibly unionize complainant's mines, which would tend to destroy the value of the same, and make impossible the profitable production of coal; that complainant operated its said mines under written contracts with its employés, one of the provisions of which was that they would not, while in complainant's employ, join or become members of the United Mine Workers of America without its knowledge, and that, if they did so, they would leave the employ of complainant; that this method of operating its mines, and the rights and benefits accruing to complainant under its contracts of employment with its employés, was a most valuable property right, which enabled it to successfully conduct its business, and particularly to maintain the number of employés necessary to carry on its business, and without which it could not have done so, and to avoid strikes and such incidental interruptions as would result in the practical destruction of its business and property, and its right to use and enjoy the same; that defendants well knew of complainant's contracts with its employés, and the terms and conditions of the same, and of the value of such contracts, but nevertheless willfully and maliciously, and with the purpose of and intending to break up and destroy complainant's business, deliberately set about to induce and secretly persuade complainant's employés and workmen to break their contracts by becoming members of the United Mine Workers of America, and keeping that fact away from the knowledge of complainant until, with such numbers, they could undermine and break up the complainant's business, all of which actions and doings were against good conscience and fair dealings.
The right to maintain the suit against appellants is clear. The complainant is a West Virginia corporation, and instituted this suit at its home in that state, and the appellants are citizens of the states of Pennsylvania and Ohio respectively, and were duly served with process in the state of West Virginia, which gave and conferred upon complainant in the state and district in which it resided, the right to maintain this litigation, certainly against the appellants herein individually, if not in their official capacities, as representing the labor unions to which they belonged, and for which they acted.
This case in its essential features is practically a counterpart of that of Hitchman Coal & Coke Co. v. Mitchell and Others, 245 U.S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461. In that case, as here, the right of injunction was involved and considered, growing out of an effort to unionize complainant's mines by peaceable and persuasive methods, fraudulently and deceptively practiced, in utter disregard of its rights and interests under the contractual relations with its employés, of which the defendants were fully advised.
In the Hitchman Case, supra, at page 250 (38 S. Ct. 72), Justice Pitney, speaking for the court, said:
"That the plaintiff was acting within its lawful rights in employing its men only upon terms of continuing nonmembership in the United Mine Workers of America is not open to question. Plaintiff's repeated costly experiences of strikes and other interferences while attempting to `run union' were a *658 sufficient explanation of its resolve to run `nonunion,' if any were needed. But neither explanation nor justification is needed. Whatever may be the advantages of `collective bargaining,' it is not bargaining at all, in any just sense, unless it is voluntary on both sides. The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make nonmembership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power. Adair v. United States, 208 U.S. 161, 174 [28 S. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764]; Coppage v. Kansas, 236 U.S. 1, 14 [35 S. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960]. In the present case, needless to say, there is no act of legislation to which defendants may resort for justification."
And on page 259 (38 S. Ct. 75) the learned judge further said:
"Upon all the facts, we are constrained to hold that the purpose entertained by defendants to bring about a strike at plaintiff's mine in order to compel plaintiff, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose, and that the methods resorted to by Hughes the inducing of employés to unite with the union in an effort to subvert the system of employment at the mine by concerted breaches of the contracts of employment known to be in force there, not to mention misrepresentation, deceptive statements, and threats of pecuniary loss communicated by Hughes to the men were unlawful and malicious methods, and not to be justified as a fair exercise of the right to increase the membership of the union."
The case of Eagle Glass Manufacturing Co. v. Rowe, 245 U.S. 275, 38 S. Ct. 80, 62 L. Ed. 286, follows and approves the Hitchman Case cited, and it will be found on a fair consideration of the cases of Duplex Printing Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, and American Steel Foundries v. Tri-City Central Council, 257 U.S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360, that there is nothing in either case as contended for that modifies or militates against the views herein taken of the Hitchman Case, but, on the contrary, they sustain fully, so far as under their facts they are applicable to this case, the views we have taken.
In American Foundries v. Tri-City Central Council, supra, 257 U.S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360, Mr. Chief Justice Taft, speaking for the court, and considering the effect and meaning of the Hitchman Case, supra, on page 211 (42 S. Ct. 79), said:
"The counsel for the Steel Foundries rely on two cases in this court to support their contention. The first is that of Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 [38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461]. The principle followed in the Hitchman Case cannot be invoked here. There the action was by a coal mining company of West Virginia against the officers of an international labor union and others to enjoin them from carrying out a plan to bring the employés of the complainant company and all the West Virginia mining companies into the international union, so that the union could control, through the union employés, the production and sale of coal in West Virginia, in competition with the mines of Ohio and other states. The plan thus projected was carried out in the case of the complainant company by the use of deception and misrepresentation with its nonunion employés, by seeking to induce such employés to become members of the union contrary to the express term of their contract of employment that they would not remain in complainant's employ if union men, and after enough such employés had been secretly secured, suddenly to declare a strike against complainant and to leave it in a helpless situation in which it would have to consent to be unionized. This court held that the purpose was not lawful, and that the means were not lawful and that the defendants were thus engaged in an unlawful conspiracy which should be enjoined. The unlawful and deceitful means used were quite enough to sustain the decision of the court without more."
Our attention has been called to section 20 of the Clayton Act (Comp. St. § 1243d), as bearing upon the subject under consideration; but we are persuaded that that section has little or no application to this case, in the light of the interpretation placed *659 thereon by the Supreme Court in American Foundries Co. v. Tri-City Council, supra, 257 U.S. 184, 202, 42 S. Ct. 72, 76 (66 L. Ed. 189, 27 A. L. R. 360). At the latter page Mr. Chief Justice Taft, speaking for the court, said:
"It has been determined by this court that the irreparable injury to property or to a property right, in the first paragraph of section 20, includes injury to the business of an employer, and that the second paragraph applies only in cases growing out of a dispute concerning terms or conditions of employment, between an employer and employé, or between employers and employés, or between employés, or between persons employed and persons seeking employment, and not to such dispute between an employer and persons who are neither exemployés nor seeking employment."
Assuming that applications for injunction will ordinarily only be resorted to in cases of labor disturbances, because of public disorder or threatened violence, as distinguished from peaceful methods or lawful persuasion, still it cannot be believed that, in a case like the one under consideration, relief will be denied because the acts complained of are not of the former class.
Where fraud and deception are openly charged in the methods adopted and practices pursued to undermine and destroy the complainant's rights, equity will not fail to afford the fullest relief. What is said by the court in the Hitchman Case, supra, can only admit of this meaning. The above quotations from the American Foundries Case, 257 U.S. 211, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360, supra, giving the Supreme Court's interpretation of the Hitchman Case, clearly so indicates, as does the language of the court at page 210 (42 S. Ct. 79), where the Chief Justice says: "There are other cases in which the persuasion was accompanied by the intent to secure a breach of contract, or was part of a secondary boycott, or had elements of fraud, misrepresentation, or intimidation in it."
Since the decision in the Hitchman Case, supra, 245 U.S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461, two Circuit Courts of Appeals have followed, reiterated, and applied the doctrine of that case in its full scope as applicable to cases like the present. Kinloch Telephone Co. v. Local Union No. 2, etc., 275 F. 241 (8th C. C. A.); Montgomery and Others v. Pacific Electric Ry. Co., 293 F. 680 (9th C. C. A.).
The third and fourth assignments, especially insisted upon by appellants, and hereinabove quoted as reasons for the reversal of the action of the court below, are too general in their nature to call for any special discussion by the court.
This is an appeal from an order granting a temporary injunction and refusing to dissolve the same, and not a decision upon final hearing on the merits of the case. It appears that the court below in the action taken neither violated any rule of equity, nor improperly exercised the discretion reposed in it, and that the evidence entitled the complainant to injunctive relief, and that the action taken, save as hereinafter modified, is free from error. Meccano v. Wanamaker, 253 U.S. 136, 141, 40 S. Ct. 463, 64 L. Ed. 822; Amarillo v. Southwestern Tel., etc., Co. (C. C. A. 5th Cir.) 253 F. 638, 165 Cow. C. A. 264; National Picture Theatres v. Foundation Film Corp. (C. C. A. 2d Cir.) 266 F. 208; Gasaway v. Borderland Corp. (C. C. A. 7th Cir.) 278 F. 56.
Defendants criticize the scope of the injunction, contending that its effect is to forbid the publishing and circulating of lawful arguments and the making of lawful speeches advocating membership in the union in the neighborhood of plaintiff's mines, but we do not think that this is the proper construction of the order, which is an exact copy of that which was approved by the Supreme Court of the United States in the Hitchman Coal Co. Case, supra. In view of what was said by that court in American Foundries Company v. Tri-City Council, there can be no doubt as to the right of defendants to use all lawful propaganda to increase their membership. See Gasaway v. Borderland Coal Co., supra. But, that there may be no misunderstanding in the matter, we think that the order should be modified by adding thereto the following provision:
"Provided, that nothing herein contained shall be construed to forbid the advocacy of union membership, in public speeches or by the publication or circulation of arguments, when such speeches or arguments are free from threats and other devices to intimidate, and from attempts to persuade the complainant's employés or any of them to violate their contracts with it."
The decree of the District Court will be modified, each side to pay one-half of the costs in this court.
Modified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393461/ | 500 S.W.2d 686 (1973)
Julian C. ASHBY et al., Appellants,
v.
DELHI GAS PIPE LINE CORPORATION, Appellee.
No. 15200.
Court of Civil Appeals of Texas, San Antonio.
September 3, 1973.
Rehearing Denied October 31, 1973.
*687 Sayles & Garrett, Abilene, Cox, Smith, Smith, Hale & Guenther, Inc., San Antonio, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellants.
W. S. Barron, Jr., Geary, Brice, Barron & Stahl, Dallas, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, for appellee.
KLINGEMAN, Justice.
This is a venue action. Delhi Gas Pipe Line Corporation instituted suit in the District Court of Bexar County, Texas against Julian C. Ashby, a resident of Bexar County, Texas, and Junction Natural Gas Company, a corporation having its principal place of business in Junction, Kimble County, Texas, seeking the following relief: (a) that the court enjoin defendants from causing a breach of a contract and from further interfering with plaintiff's rights thereunder; (b) that plaintiff recover damages from defendants in the amount of $50,000 based on the threatened wrongful termination of the contract; and (c) that the court enter a declaratory judgment determining the rights of the parties under this contract as well as under another related contract. Defendants filed their pleas of privilege to be sued in Kimble County, Texas, relying on Subdivision 14, Article 1995, Vernon's Ann.Civ.St.[1] Plaintiff controverted these *688 pleas asserting that: (1) a dispute over land was not involved, and (2) Article 4656, V.A.C.S.,[2] controlled because plaintiff sought injunctive relief. The trial court overruled both pleas of privilege.
In 1961, Utex Exploration Company[3] entered into a gas purchase contract with Junction Natural Gas Company (hereinafter called the Junction contract) whereby Ashby agreed to sell and Junction agreed to purchase certain quantities of natural gas from specified gas wells located in Kimble County, Texas. Under the terms of such contract, Junction agreed to purchase 250,000 cubic feet of natural gas a day and such additional quantities of gas as would be necessary to satisfy the requirements of its customers.
Junction Natural Gas Company was the holder of a franchise from the City of Junction authorizing it to construct and maintain a gas distribution system within said city and requiring it to supply the residents, business interests and corporations, including the city of Junction, Texas, within the corporate limits of said city, such amount of natural gas as the residents and said entities may require from time to time. Under this contract, Ashby reserves the right to sell to others than Junction any surplus gas over and above the current needs of Junction's customers.[4] This contract contained a provision whereby the seller, Ashby, dedicated to the performance of such contract all gas from certain presently producing horizons on two leases in Kimble County, Texas, described in Exhibit A to such contract, with a further provision that any gas produced over and above the current or miminum requirements of buyer may be sold by seller to others so long as such sales do not jeopardize the ability of buyer to serve its customers as set out in such contract. The contract is a long-term contract for a term in excess of 20 years. It provides for a graduated sale price of gas, beginning with a sale price of twenty cents per MCF, with increases at stages of approximately five years, with the price of gas beginning on December 31, 1980, to be 30 cents per MCF. The contract provides that the point of delivery of gas to be delivered by seller to buyer shall be at the well head connection or high pressure separator.
On December 22, 1970, Ashby, as seller, entered into a gas purchase contract with Delhi as buyer, hereinafter called the Delhi contract, obligating the parties respectively to sell and buy 1,000 MCF per day per gas well. This contract is made subject to the terms of the Junction contract; and this contract specifically provides that the seller reserves the right to provide the Junction Natural Gas Company its gas requirement as defined in the gas purchase agreement between Junction Natural Gas Company, buyer, and Utex, seller, dated September 3, 1961. This contract is for a primary term of 20 years and also contains a graduated schedule for the price of gas with the sale price of 1,000 cubic feet of gas from initial delivery of gas until July 30, 1975, being 10.5 cents; that at the beginning of the five year period commencing July 31, 1975, and at the beginning of each successive five year period for the term thereof, the price shall be increased over the preceeding period one cent per MCF. This contract provides that the delivery point of gas purchased and sold thereunder shall be at the outlet of seller's separator on the lease or at other mutually agreeably point or points. The contract further provides that the seller commits to the performance of such agreement for the *689 term thereof all of the seller's interests from certain leases described in an Exhibit A to such contract except such gas as is reserved in Article 3 thereof. The leases listed in Exhibit A are basically the same leases covered in the Junction contract with some minor variances.
On October 12, 1972, Ashby sent a letter to Delhi that Junction had exercised its "right to take all additional gas from the leases and productive horizons covered in gas purchase contract" and such letter further states that "after reviewing the file, it appears to me that I have no alternative except to comply with the request, which will terminate your contract with me."
On the merits, it appears to be Delhi's position that Ashby is not authorized to terminate the contract because the additional gas demanded by Junction will not be used to supply the needs of Junction's customers, in accordance with the provisions of the Junction contract, while Ashby and Junction both contend that the 1961 and 1970 contracts gave Junction rights superior to Delhi's in whatever quantities of gas it needed to supply any of its customers, not just to the city of Junction and Texas Mexican Pipe Line Company pump station.
Delhi contends that Junction has torturously interfered with its contractual relations and alternately that Ashby and Junction have conspired to deprive it of benefits under the 1970 contract and seeks relief in three forms: (a) an injunction enjoining defendants from causing a breach of contract and further interferences with plaintiff's rights thereunder; (b) damages for breach of contract; and (c) a declaration of rights under the contract.
By a single point of error, defendants assert that the trial court erred in overruling their pleas of privilege to be sued in Kimble County for the reason that this case comes within the provisions of Subdivision 14, Article 1995, and, for this reason, should have been transferred to Kimble County. It is defendants' basic contention that the dedication of gas reserves provided for in the contracts created an interest in real estate and that since such dedicated gas reserves are situated in Kimble County, Texas, this case must be tried in Kimble County, under the provisions of Subdivision 14. Plaintiff contends that the trial court properly overruled defendants' pleas of privilege because this is a suit upon a contract to enforce the same and to recover consequential damages based upon the breach thereof, and that a suit of this nature is not within the purview of Subdivision 14, Article 1995, and is not a suit to recover any of the relief as provided in Subdivision 14. In the trial court, plaintiff also contended that the venue of this case was properly in Bexar County, Texas, under the provisions of Article 4656, but they do not brief this contention in this appeal and apparently no longer rely thereon.
The question on this appeal is whether the nature of the suit brought by plaintiff comes within the provision of Subdivision 14 of the venue statutes. Where the venue depends on the nature of the suit, such venue is ordinarily determined by the principal right asserted in the plaintiff's petition and the relief sought for the breach thereof. Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706, 708 (1957); Wagner v. Pulliam, 361 S.W.2d 470 (Tex.Civ.App.Eastland 1962, no writ).
Defendants assert that since oil and gas in place are realty, suits to recover the same or to quiet title to them, or to prevent or stay their wastes, must be brought in the county where the subject gas reserves are located. Plaintiff concedes the gas reserves in place are an interest in land, but does not agree that this is a suit by Delhi to recover an interest in gas reserves, or that this is a suit to quiet title to gas reserves, or that this is a suit to prevent wastes. It asserts that the suit here involved is purely a suit by Delhi to enforce its rights to purchase gas pursuant to *690 its contract, and to recover consequential damages as a result of the breach thereof, and the fact that land is involved in this character of suit does not operate to bring it within the provisions of Subdivision 14.
In Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949), various royalty owners brought suit in Panola County against R. E. Smith, a resident of Harris County to compel specific performance of a contract entered into between plaintiffs and defendants pertaining to the pooling of royalty interests owned by plaintiff in the Carthage Gas Field in Panola County; an accounting; and for damages. Smith filed his plea of privilege to be sued in Harris County, the County of his residence. Plaintiffs controverted seeking to hold venue in Panola County under Subdivision 14. The Supreme Court, in holding with such case was not within the ambit of Subdivision 14, said:
"The decisions of this court for many years have been uniformly to the effect that a suit for specific performance of a contract to convey an interest in land, or for damages for breach of such contract, does not come under the provisions of the venue statutes relating to suits for the recovery of lands or damages thereto. Hearst's Heirs v. Kuykendall's Heirs, 16 Tex. 327; Miller v. Rusk, 17 Tex. 170; Cavin v. Hill, 83 Tex. 73, 18 S.W. 323. In Miller v. Rusk, supra, the court said, 17 Tex. at page 172:
`Where the suit is upon the contract, whether it be to compel the specific performance of it, or to recover damages for its breach, it is not a suit for the "recovery of land or damages thereto," and consequently is not within the exception and rule of the Statute, which requires the suit to be brought in the county where the land lies, though it be not the county of the defendant's residence.'"
It is not enough that the suit merely involves land, it must be a suit for the recovery of land or damages thereto, or to quiet the title to land, or to prevent or stay waste on land. This court in Batex Oil Company v. LaBrisa Land and Cattle Company, 352 S.W.2d 769, 773 (Tex.Civ.App. San Antonio 1962, writ dism'd) said:
"It is well settled that a suit for specific performance of a contract of sale of real estate, although the judgment therein may result in a transfer of title to real estate, does not come under Exception 14 of the venue statute requiring suits for the recovery of land or damages thereto to be brought in the county where the land is situated."
See also Umbaugh v. Miers, 256 S.W.2d 660 (Tex.Civ.App.San Antonio 1953, no writ).[5]
Among other cases, defendants' cite a case by this court, Guffey v. Utex Exploration Company, 376 S.W.2d 1 (Tex.Civ. App.San Antonio 1964, writ ref'd n. r. e.), which involved one of the litigants in this case and some of the gas involved in this litigation. The issue before the court was whether an oral contract for the sale of gas was enforceable under the statute of frauds. There is language in such case which appears to support defendants' position. The court in holding the oral contract not enforceable under the statute of frauds[6] said: "The contract was one for the sale of gas in place, which is a part of the real estate, and is such a contract as is required to be in writing," and "we can see no difference between selling a one-eighth interest in all the oil and gas produced from a well, and the sale of a definite quantity of oil and gas when produced *691 from a well, insofar as the law of conveyance is concerned." The court further held that the oral contract was not enforceable under the statute of frauds because it was a contract not to be performed within one year and therefore required to be in writing. The Guffey case was not a venue action and did not, in any way, involve Subdivision 14, and we do not regard it as decisive as to the matter of venue on a suit of the nature here involved to-wit: for the enforcement of a contract, for the construction thereof, and for damages for the breach thereof.
The damages sought by plaintiff in this suit are not damages to land as contemplated in Subdivision 14. In Brown v. Gulf Television Company, supra, the court said: "We are also of the opinion that plaintiff's alternative claim to damages cannot be properly classified as coming within the provisions of Article 1995, § 14. From an early day in this state the language of exception 14 and its predecessor sections has been construed as referring to `injury to the possession, or to the freehold or estate.'"
Plaintiff also contends that the trial court judgment was correct because the contracts are executory contracts for the sale of severed gas, and as such, are contracts for the sale of personal property, and not realty. In this regard, they assert that each of the contracts obligate the seller and buyer respectively to sell and buy specified quantities of gas at periodic intervals for a fixed term of years; that each of such contracts provide for delivery of the gas at the well head or separator on the lease premises; that the contracts provide that the seller shall be in control and possession of the gas and responsible for it until it is delivered to the buyer; and that the Delhi contract provides that the title to the gas shall pass to the buyer at the point of delivery. In support of this contention, they rely on the holding in Martin v. Amis, 288 S.W. 431, 433 (Tex.Comm'n App.1926, jdgmt adopted), wherein the court, in discussing a contract for the sale of gas stated: "They evidence an executory contract of sale of raw gas, as personalty." The court further stated:
"Its [the buyer's] acquisition of raw gas produced from the realty granted in the Gordon lease occurred after such gas had become personalty by a severance from the soil. It holds no interest or estate in the realty from which such raw gas was produced. The enjoyment by said corporation of rights appertaining to such realty, in the way of surface rights incident to its purchase of raw gas from the holders of such realty, does not constitute an interest or estate in the oil and gas in place under the land."
See also Phillips Petroleum Company v. Mecom, 375 S.W.2d 335 (Tex.Civ.App. Austin 1964, no writ), where the court stated that the law is well settled that oil and gas, when produced and severed becomes separate property.
Plaintiff asserts that it is no longer open to question that gas under such a contract is not sold at the time that the contract was entered into but the sale takes place at the time of delivery to the purchaser. Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866 (Tex.1968); Martin v. Amis, supra; Foster v. Atlantic Refining Company, 329 F.2d 485, 489 (United States Court of Appeals, Fifth Circuit 1964).
We do not deem it material in reaching our decision in this case whether the contract for the sale of gas is a contract for the sale of personalty, or realty, as we regard the suit here involved as a suit for the construction of a contract, and to enforce the terms thereof; for damages for the breach thereof; and for incidental relief; and as such, the venue of this suit is not controlled by the provisions of Subdivision 14, Article 1995.
The trial court properly overruled both defendants' pleas of privilege. The judgment of the trial court is affirmed.
NOTES
[1] Suits for the recovery of lands or damages thereto, or to remove incumberances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof may lie.
[2] This statute provides in effect that writs of injunction shall be returnable to and tried in the court where such suit is pending.
[3] Ashby is the successor in interest to Utex and stands in the shoes of Utex, and in discussing the contract, it will be sometimes referred to as the Ashby-Junction contract.
[4] The contract provided that the term "current need" as used in such contract is meant gas in such quantities as to meet the demand made upon buyer by its customers, it being understood that buyer should have the first call on the gas produced by seller from the reserves dedicated therein to supply the needs of buyer's customers.
[5] "Both sides urge that the contract involved can not be specifically enforced as it involved personal services. This point, however, is deemed immaterial. The action seemingly is one for breach of contract, to which exception 14 of Article 1995 has no application." (Page 661)
[6] Then Article 3995, V.A.C.S., now Article 26.01, Business & Commerce Code. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393464/ | 500 S.W.2d 175 (1973)
E. D. RICHARDSON, Appellant,
v.
CITY OF PASADENA et al., Appellees.
No. 845.
Court of Civil Appeals of Texas, Houston (14th Dist.).
September 26, 1973.
Rehearing Denied October 17, 1973.
*176 Charles E. Humphrey, Jr., J. Keith Short, B. J. Walter, Jr., Foreman, Dyess, Prewett, Rosenberg & Henderson, James Calaway, Houston, for appellant.
Charles A. Easterling, City Atty., Pasadena, for appellees.
COULSON, Justice.
This suit was instituted to set aside an order of the Civil Service Commission of the City of Pasadena indefinitely suspending and permanently dismissing E. D. Richardson from the classified service of the Police Department of the City of Pasadena for his insubordination in refusing to submit to a polygraph examination. After a trial de novo the district court upheld the indefinite suspension and permanent dismissal.
The first issue is whether the indefinite suspension and permanent dismissal of a police officer based solely upon his insubordination in refusing to submit to a polygraph examination is lawful. The second issue is whether the reception of affidavits by the Civil Service Commission after the close of testimony and without notice to appellant deprived him of fundamental due process.
Appellant complained through police department channels of his "Report of Performance Rating" for the six-month period ended December 31, 1971. Chief Ellis R. Means ordered an investigation which produced allegations of unsatisfactory performance by Officer Richardson. To determine whether the alleged improper activities (none of which involved charges of criminal conduct) had continued into the performance rating period in question and further to determine whether such activities had continued to the time of the investigation, Chief Means ordered appellant to submit to a polygraph examination. Appellant refused the order to take the polygraph examination. Thereafter Chief Means issued a written order indefinitely suspending Officer Richardson for insubordination. Officer Richardson timely appealed said order of indefinite suspension to the Civil Service Commission of the City of Pasadena.
At the Commission hearing, appellant maintained that Chief Means had merely requested that he take a polygraph examination. The Chief of Police, the only other witness, stated he had given a direct order. Six days after the open hearing, the Commission accepted the affidavits of three police officers who were present at the conference in question, which affidavits corroborated the version of Chief Means. The Commission found insubordination in the refusal of the polygraph examination and upheld the indefinite suspension and ordered the permanent dismissal of appellant.
The district court, during the trial de novo, heard the testimony of Chief Means, the appellant, the three civil service commissioners, two of the three affiants, and others. Applying the substantial evidence rule for review of administrative hearings, the trial court affirmed the indefinite suspension and permanent dismissal of Officer Richardson.
If the order to submit to a polygraph examination were unreasonable or unconstitutional, the appellant's refusal would not be the insubordination required for dismissal by Rule 13, Section 6(e) of the Policemen's Civil Service Rules of Pasadena. Appellant urges that his constitutional rights to privacy, freedom of association, and due process were violated by the special order and by his dismissal pursuant to his refusal. The question of whether a dismissal for refusal to submit to a polygraph examination is constitutional was addressed in Talent v. City of Abilene, 499 *177 S.W.2d 724 (Tex.Civ.App.Eastland 1973, no writ). There a fireman refused to take a polygraph examination concerning a criminal investigation. The Eastland Court of Civil Appeals rejected the constitutional argument, citing several precedents of other jurisdictions. These cases are pertinent, although they basically involve the right against self-incrimination in a criminal investigation rather than the right of privacy in an efficiency investigation. See Seattle Police Officers' Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972).
A private citizen has "the right of privacy" enunciated by the Texas Supreme Court in the case of Billings v. Atkinson, 489 S.W.2d 858 (Tex.Sup.1973). A private citizen has a right to refuse a polygraph examination. The appellant as a police officer is a public employee. By accepting public employment as a police officer he subordinated his right of privacy as a private citizen to the superior right of the public to an efficient and credible police department. A police officer is guilty of insubordination in refusing a direct order of a superior officer to submit to a polygraph examination during a departmental investigation of a matter relating to efficiency and credibility when reasonable cause exists to believe that the police officer so ordered can supply relevant knowledge or information. Insubordination in refusing a reasonable and constitutional command cannot be upheld without jeopardizing the system of police administration which is premised on discipline.
Chief of Police Means was confronted with allegations that Officer Richardson had engaged in improper conduct. Officer Richardson denied the allegations. The polygraph is a scientific instrument used by police departments as an aid in the search for truth. The order of the Chief of Police to the appellant to take a polygraph examination was not unreasonable under the circumstances nor was the order less reasonable because the investigation did not involve a charge of criminal conduct. See Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339 (1967).
The indefinite suspension and permanent dismissal of Officer Richardson based upon his insubordination in refusing to submit to the polygraph examination was lawful.
The second issue is whether the receipt of affidavits after the hearing without notice to, or the presence of, the appellant violated the requirements of due process. The Firemen's and Policemen's Civil Service Act provides:
"The members of the Civil Service Boards are hereby directed ... when sitting as a board of appeals for a suspended or aggrieved employee... to conduct such hearing fairly and impartially ... considering only the evidence presented before them in such hearing." Vernon's Tex.Rev.Civ. Stat.Ann. art. 1269m, sec. 16a (1963).
The record reveals that after the hearing the Civil Service Commission did receive and read three pertinent affidavits before its decision. The three affidavits were by police officers who were present at the conference between Chief Means and Officer Richardson, and they corroborate the statement of Chief Means before the Civil Service Commission to the effect that he had ordered Officer Richardson to take a polygraph examination. Appellant was deprived of the right to object to the admission of the affidavits and he was further deprived of the right to cross-examine the three affiants.
The Firemen's and Policemen's Civil Service Act provides for a trial de novo in the district court in the event the policemen is dissatisfied with the decision of the Commission. Tex.Rev.Civ.Stat.Ann. art. 1269m, sec. 18 (1963). Such an appeal is governed by the substantial evidence rule. The review is limited to an ascertainment of whether there was substantial evidence reasonably sufficient to support the challenged *178 order. Firemen's and Policemen's Civil Serv. Com'n v. Hamman, 404 S.W.2d 308 (Tex.Sup.1966).
In the case at bar, the trial court in the trial de novo heard the testimony of many witnesses including but not limited to Chief Means, the appellant, the three civil service commissioners, two of the three affiants, and it reviewed a full statement of facts, prepared by the court reporter who attended the hearing before the Civil Service Commission, and reviewed the three affidavits. The appellant was present at the trial de novo. He was represented by an attorney of his own choice who cross-examined the witnesses against the appellant. At said trial de novo appellant was afforded the opportunity to subpoena witnesses. After the trial de novo the court upheld the indefinite suspension and permanent dismissal of the appellant as being reasonably supported by substantial evidence. The court made findings of fact and conclusions of law.
Inasmuch as the Civil Service Commission in granting the challenged order acted upon substantial evidence reasonably sufficient to support said order, which supporting evidence was properly submitted at the hearing before the Civil Service Commission, the improper receipt by the Civil Service Commission after the closing of the hearing of the three affidavits in question did not violate fundamental due process. Firemen's and Policemen's Civil Serv. Com'n v. Hamman, supra; Fire Department of City v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949).
In the event the facts before the court had revealed that at the hearing before the Civil Service Commission the City failed to present substantial evidence reasonably sufficient to support the order of such Commission, the receipt by the Commission after the close of the hearing of the affidavits as the evidence supporting its order would be such a taint of illegality which would have deprived the appellant of fundamental due process and the order of the Commission upon appeal could have been set aside. Gerst v. Jefferson County Savings and Loan Asso., 390 S.W.2d 318 (Tex.Civ.App.Austin 1965, writ ref'd n.r. e.).
We have considered all of appellant's points of error and find no merit in them. They are overruled.
Judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3345494/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OP DECISION RE #118 AND #121
The defendant moved to disqualify plaintiff's counsel citing the following reasons: that she consulted with various members of counsel's law firm; that she was a witness in a civil action brought against her husband and was excused from trial by counsel; that counsel's law firm represented the parties in connection with the purchase of real property in 1989 and its refinancing in 1996.
The court heard testimony from the defendant and Attorney Irving Perlmutter with regard to these transactions. The issue regarding disposition of the real property is contested. The court finds that Attorney Perlmutter's law firm is in possession of the files concerning the purchase and financing of the marital property. As such, it is privy to information regarding the defendant's financial affairs. Attorney Perlmutter could not recall the information in these files.
Rule 1.9(2) of the Professional Rules of Conduct states:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) Represent another person in the same or a substantially related manner in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(2) Use information relating to the representation to CT Page 3619 the disadvantage of the former client except as rule 1.6 would permit with respect to a former client or when the information has become generally known.
The fact that Attorney Perlmutter does not recall the contents of the real estate files leaves open the possibility that information disadvantageous to Mrs. Hermes could be in the file. As a result, the lawyers in Attorney Perlmutter's firm are similarly disqualified pursuant to Rule 10(a) of the Rules of Professional Conduct. That rule states:
(a) While lawyers are associated in a firm, none of them shall represent a client when any one of them practicing alone would be prohibited by Rules 1.7, 1.8(c), 1.9 or 2.2.
For the foregoing reasons, the court grants the motion to disqualify Attorney Perlmutter and the members of his law firm.
SANDRA VILARDI LEHENY, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/239117/ | 231 F.2d 947
Ivar JEPSON, Appellant,v.William D. EGLY and Columbus W. Harris, Appellees (two cases).
Patent Appeals No. 6158.
Patent Appeals No. 6159.
United States Court of Customs and Patent Appeals.
April 3, 1956.
Rehearing Denied May 10, 1956.
George R. Clark, Mason, Kolehmainen, Rathburn & Wyss, and Walther E. Wyss, Chicago, Ill. (George R. Jones, Washington, D. C., of counsel), for appellant.
Eugene C. Knoblock, South Bend, Ind., for appellees.
Before O'CONNELL, Acting Chief Judge, and JOHNSON, WORLEY, COLE and JACKSON, retired, Judges.
JOHNSON, Judge.
1
These are appeals by Ivar Jepson from the decision of the Board of Patent Interferences of the United States Patent Office awarding priority of invention to the joint parties William D. Egly and Columbus W. Harris in Interference Nos. 85,640 and 86,202.
2
Interference No. 85,640 (Appeal No. 6158) involves the Jepson application, Serial No. 107,653, filed July 30, 1949, and the Egly and Harris joint application, Serial No. 53,492, filed October 8, 1948. Interference No. 86,202 (Appeal No. 6159) involves the Jepson application, Serial No. 126,857, filed November 12, 1949, and the above-mentioned Egly and Harris joint application.
3
The proceedings below in both interferences have been consolidated into a single record because of the related nature of the subject matter. We will therefore treat both appeals in one opinion. However, for the sake of clarity, this opinion will treat each appeal under a separate heading.
4
Interference No. 85,640 (Appeal No. 6158).
5
The inventions in issue relate to travelling lawn sprinklers. Both parties to the interference broadly disclose a lawn sprinkler having a rotatable sprinkling head mounting a plurality of nozzles each of which sprays a stream of water. The lawn sprinkler is adapted to be attached to a flexible hose which supplies water thereto. The travelling sprinklers have structure thereon which is placed in contact with the flexible hose so that as the rotatable sprinkling head rotates because of water pressure, the travelling sprinkler is caused to pull itself along the hose and thus traverse the path defined by the hose.
6
One of the issues before us is whether the two counts involved in the interference read on one modification of the invention set forth in the Jepson application. In order to answer this question, we deem it expedient to briefly describe the pertinent structure disclosed in each of the applications, namely, the structure which causes the sprinkler to travel.
7
In the Egly-Harris disclosure, the rotatable sprinkling head is caused to rotate by the water under pressure which is supplied thereto. Two vertical shafts are journalled in the sprinkler housing. Gears transmit motion from the rotating head to each of these shafts. The shafts have rollers fixedly mounted on them. The rollers are adapted to clamp the hose between them, and as the shafts and the rollers rotate the sprinkler is pulled along the hose and thus is caused to travel.
8
Jepson discloses an embodiment of his invention which is similar to the Egly-Harris structure. However, it is different in the sense that only one shaft which mounts a hose gripping roller is positively driven through gearing connecting it to the rotatable sprinkling head. A second roller which is not positively driven co-acts with the positively driven roller to grip the hose therebetween. The second roller merely rotates idly as the sprinkler is pulled along the hose by traction between the positively driven roller and the hose.
9
The following two counts are in issue in this case:
10
"1. A traveling lawn sprinkler comprising a housing adapted to be connected to a flexible water conduit, a water reactance sprinkler unit rotatably mounted by said housing, and rotatable drive members actuated by said unit and including a pair of rotatable members gripping said conduit therebetween to propel said housing.
11
"2. A sprinkler of the rotary reaction type having nozzles revolving about a vertical axis comprising a support for rotatably supporting said nozzles, a pair of rotatable members associated with said support adapted to receive a water supply conduit therebetween, means for biasing said rotatable members to grip said conduit, and means responsive to rotation of said nozzles for rotating said members to cause said sprinkler to propel itself along said conduit by traction with said conduit."
12
The Board of Patent Interferences was of the opinion that the above-described Jepson structure did not read on the above counts. The reasons for the board's opinion can best be stated by directly quoting the following portion of the board's opinion:
13
"In the modification shown in Figures 13 an [sic] 14, the `pair of rotatable members' recited near the end of Count 1 can only be the pair of rollers 212 and 213. According to the count they must form a part of the `drive members actuated by said unit' (the `water reactance sprinkler unit') since the count refers to the `drive members' as `including' the `pair of rotatable members'. In order for roller 213 to be connected to the other parts of the `drive members' so that it will, with them, be `actuated by said unit' it is necessary to include the hose 21 or the ground as part of the `drive members'. However, the `drive members' must be part of `a travelling lawn sprinkler' since the count is drawn to such a sprinkler `comprising-drive members'. Obviously the hose or the ground are not part of such a sprinkler, particularly since neither the ground nor the portion of hose between the rollers travels with the other parts of the sprinkler. Thus in attempting to apply count 1 to the sprinkler shown in Figures 13 and 14 one must use something external to the sprinkler itself. This is not necessary with respect to the devices shown in the other figures of Jepson's application or in his opponent's application.
14
"* * * In addition, Count 1 describes the `drive members' as `rotatable', which is not true in any pertinent sense of the hose or the ground.
15
"Similar considerations apply as to Count 2 relative to the type of device shown in Jepson's Figures 13 and 14 wherein the `pair of rotatable members-adapted to receive a water supply conduit therebetween' are rollers 212 and 213. `Means-for rotating said members' must include the hose (conduit) or ground for in their absence roller 213 will not be rotated; but neither the hose or ground is a part of the sprinkler, nor is either `responsive to rotation of said nozzles'. Moreover, it seems inapt to say that roller 213 is rotated `to cause said sprinkler to propel itself along said conduit' when it is such relative movement of the sprinkler and hose that causes the freely rotatable roller 213 to rotate. We accordingly hold that the type of sprinkler shown in Figures 13 and 14 of Jepson and in his Exhibits 9 and 10 does not support either count."
16
The first question we must answer is whether the board was correct in its above holding. It is well settled that counts of an interference should be given the broadest interpretation which they will reasonably support, Tansel v. Higonnet, 215 F.2d 457, 42 C.C.P.A., Patents, 732, and the word reasonably should not be deleted, De Benneville v. Anderson, 212 F.2d 612, 41 C.C.P.A., Patents, 891. Furthermore, while, on one hand, limitations not included in the counts cannot be subsequently read into them, Tansel v. Higonnet, supra, on the other hand, limitations expressed in the counts may not be disregarded, Kropa v. Robie, 187 F.2d 150, 38 C.C.P.A., Patents, 858.
17
In the light of the foregoing law, we concur with the board's conclusion. Count 1 calls for "rotatable drive members actuated by said unit and including a pair of rotatable members gripping said conduit." In the Jepson structure there is only one rotatable drive member disclosed, namely, the shaft which drives one of the rollers. We are therefore of the opinion that to say the Jepson structure, which only discloses one "member," reads on the count, which calls for "members," would be to disregard a limitation expressed in the count and thus give the count an unreasonable interpretation. Relative to count 2, we are of the opinion that a reasonable interpretation thereof also dictates that it does not read on the Jepson structure. This count recites "a pair of rotatable members * * * adapted to receive a water supply conduit therebetween." This structure is the rollers which grip the hose. The count further recites "means responsive to rotation of said nozzles for rotating said members to cause said sprinkler to propel itself along said conduit by traction with said conduit." However, the Jepson sprinkler does not have "means for rotating said members;" it only has means for rotating one member. Therefore, to give count 2 an interpretation which would include the above-described Jepson structure would, in our opinion, be disregarding a limitation of the count which in turn would result in an unreasonable interpretation thereof. In view of the foregoing reasons, it is our belief that the above-described Jepson structure, which has only one driven member, does not read on counts 1 and 2.
18
It is to be noted that evidence was submitted on behalf of Jepson for proving that the above-described sprinkler having but one driven member was actually built before February 1948, prior to the filing of the Egly-Harris application on October 8, 1948. This evidence included Exhibits 11 and 12, which are photographs of the sprinkler having one driven member. However, since a sprinkler having only one driven member will not conform to the above counts, the question of when such a sprinkler was built is immaterial, and therefore need not be considered.
19
There is another embodiment in the above-mentioned Jepson application which was conceded by appellees to satisfy the counts. It is urged by appellant that this embodiment, Exhibit 24, was conceived, built and tested prior to October 8, 1948, the filing date of the Egly-Harris application. In this respect an actual sprinkler, Exhibit 24, was submitted in evidence. However, the board was of the opinion that Egly and Harris were the first to complete the invention because of their earlier constructive reduction to practice, and that Jepson had not established prior actual reduction to practice by adequate corroborating testimony.
20
In the present case, Jepson is the junior party. Since the junior party is relying on an actual reduction to practice in order to prove priority, he must prove either an actual reduction to practice prior to the earliest date to which appellee may be entitled for actual or constructive reduction, Holslag v. Steinert, 143 F.2d 661, 31 C.C.P.A., Patents, 1116, or prior conception coupled with the exercise of reasonable diligence from just prior to the senior party's entry into the field to a later actual reduction to practice, Hull v. Davenport, 90 F.2d 103, 24 C.C.P.A., Patents, 1194. Furthermore, this being an interference between applicants, the junior party has the burden of proving priority of invention by a preponderance of the evidence. Clark v. Camras, 204 F.2d 273, 40 C.C.P.A., Patents, 963.
21
In the present case, the board found that there was not enough corroborating evidence to prove an actual reduction to practice by the appellant Jepson. There is no question of diligence involved here. Therefore, our opinion will treat the question of whether an actual prior reduction to practice by Jepson was proved in the manner required by law.
22
Appellant, Jepson, urges that he successfully reduced his sprinkler, which satisfies the counts, to practice prior to appellee's filing date. In addition to the actual sprinkler, Exhibit 24, appellant has submitted a layout drawing of Exhibit 24. The layout drawing is designated Exhibit 65, and is dated September 25, 1948. A photograph of Exhibit 24 was also submitted, and designated Exhibit 25. This photograph has a date "10-1-48" appearing therein on a card which is positioned in front of the sprinkler.
23
Jepson himself testified that Exhibit 24 was tested on Jepson's own lawn and on the roof of a building several times prior to October 1, 1948. In this respect, the following testimony was given by Mr. Jepson:
24
"Q. 284. Would you be able to recall about when this model was made or being made? A. I believe it was made in August or September of 1948.
25
* * * * *
26
"Q. 290. Mr. Jepson, I hand you herewith a photograph that has been marked for identification as Jepson Exhibit 25, and ask you whether this is a photograph of the model which has been marked for identification as Jepson Exhibit 24? A. Yes, it is a photograph of the Exhibit 24, and this photograph was taken on October 1, 1948.
27
"Q. 291. Does that mean, then, Mr. Jepson, that the model, Exhibit 24 was built sometime before October, 1948? Was it in complete form by that time? A. That is correct.
28
* * * * * *
29
"Q. 294. Mr. Jepson, would you refer to Jepson Exhibit 5-B and determine whether any of your model makers spent time somewhat prior to October, 1948, which would indicate that they were working on this model, Jepson Exhibit 24? A Yes, I find one model maker, Mr. Sigman. That I know definitely. He worked on the model that is shown as Exhibit 24. His time record shows that he worked on the walking sprinkler from 8-29-48 until 10-10-48.
30
"Q. 295. And you know for a fact that he did some work on this travelling sprinkler? A. I know definitely because I worked with him when he made it and I helped him out several times on problems that he had with it.
31
* * * * * *
32
"Q. 298. Would you say, therefore, that tests were made on this model before October 1, 1948? A. Yes, it must have been, because we didn't put the rubber on until a little later.
33
"Q. 299. Where did you test this model, Jepson Exhibit 24? A. Well, we tested it up on the roof of the Development Building, and I had it home on my own lawn several times to find out how it worked."
34
Two things are evident from the foregoing quoted testimony. The first is that there is no statement therein by Jepson just who the "we" were who tested the model on the roof of the development building, and whether any one saw Mr. Jepson test it on his own lawn. [See question 299, supra.] The second is that while Mr. Jepson testified that the photograph, Exhibit 25, was taken on October 1, 1948, and that Exhibit 24 was complete by that time, Mr. Jepson also testified that one model maker worked on a walking sprinkler from "8-29-48 until 10-10-48." According to the phraseology used in answering question 294, supra, it appears that the walking sprinkler referred to is Exhibit 24. On cross examination, the following testimony was obtained from Mr. Jepson:
35
"XQ. 483. Now, referring to Exhibit 25, have you any way, except for the date which appears upon it, for establishing the date on which that photograph was taken? A. I can tie that date up with some model work that was done on this model by looking at the time cards.
36
"XQ. 484. Exhibit 5-B? A. I can see, from this card, that the model maker, Mr. Sigman spend [sic] some time on the model from August 29, 1948 until October 10, 1948. He evidently made some corrections on the model after the photograph was taken, because the photograph was taken nine days before this last date appears."
37
One portion of Jepson's testimony is to the effect that Exhibit 24 was complete on "10-1-48," the date given in the photograph. However, Jepson's statement that "He evidently made some corrections on the model after the photograph was taken, * * *" seems to detract from the conclusiveness of the date of completion. However, we do not base any of our conclusions directly on the discrepancy of the foregoing dates, but on the well settled law.
38
It has uniformly been held in interference matters that the claim of an applicant that the subject matter in issue was fully completed, tested, and operated prior to the date of filing requiries corroboration in order to succeed. Janette v. Folds (Persons), 38 F.2d 361, 17 C.C.P.A., Patents, 879. Jira v. Weber, 201 F.2d 914, 40 C.C.P.A., Patents, 762. Regardless of the high character of an inventor and the persuasiveness of the testimony, the court is bound by the well established rule of patent law that independent corroboration of the testimony of an inventor is essential to establish actual reduction to practice of an invention, and that reports, official or otherwise, which are self serving statements cannot be considered as corroborative evidence of such reduction to practice. Crane v. Carlson, 125 F.2d 709, 29 C.C. P.A., Patents, 879.
39
The foregoing law, in our opinion, is determinative of the weight to be given appellant Jepson's testimony. It is to be noted from Jepson's testimony that no one was mentioned therein who saw Mr. Jepson perform the tests on his lawn. Furthermore, there is no statement in the testimony who the people referred to as "we" were who made the tests on the roof. Thus there have been no statements made as to who could corroborate Mr. Jepson's testimony. Furthermore, the photograph, Exhibit 25, is not only self serving for the purpose of showing that the device was built by "10-1-48," but neither does it corroborate that it was successfully tested by this date. In short, therefore, there has been no testimony given or evidence presented up to this point which would corroborate Jepson's testimony.
40
However, there is testimony in the record which was given by associates of Jepson which must be reviewed to determine whether it sufficiently corroborates that Exhibit 24 was reduced to practice. The first of these witnesses is Mr. Kukulski, a development engineer who worked with Mr. Jepson. His testimony is in part as follows:
41
"Q. 378. Do you remember doing any testing of the Jepson Exhibit 24? A. Yes, I tested it myself.
42
"Q. 379. Where did you test it? A. This job here we tested across the street from our plant. There is a school, a high school stadium, a football field at the northeast corner of Central and Roosevelt and they have a large spot of grass there and we tested this unit out there, right out on the grass.
43
"Q. 380. Where do you get the water out there? A. From a hydrant, from a regular fire hydrant. We obtained permission from the caretaker of the grounds there, and we have an adapter that fits the hydrant. This adapter is a reducer and contains a pressure guage and a valve and things of that nature.
44
"Q. 381. Did you do this alone? A. I did that with Mr. Lane.
45
"Q. 382. When did you do this? A. Oh, I would say, that was in the Fall of 1948. I would say about October. It was rather cool. I remember the weather was nice.
46
* * * * * *
47
"Q. 389. Mr. Kukulski, I hand you herewith a photograph which has been introduced in evidence as Jepson Exhibit 25. Do you recognize this? A. That is a photograph of this unit Exhibit 24.
48
"Q. 390. Do you remember when it was taken? A. The date here is October 1, 1948.
49
"Q. 391. You assisted in taking the photographs, Jepson Exhibits 11 and 12. Did you on this one? A. I did on that too, yes, sir.
50
"Q. 392. And was it taken on October 1, 1948? A. That is right.
51
"Q. 393. When you tested this sprinkler on the lawn across from the Sunbeam plant, was it like this model or was it like the photograph? A. Of Jepson Exhibit 25 and the model of Exhibit 24, no. It was like the model. I noticed on the photograph they have a rubber facing here. Mr. Ottosen put that sponge rubber facing on the inside of the wheels. He was conducting some sort of a test. That is the only difference.
52
"Q. 394. Did you ever see any tests made while the rubber was on there? A. Yes, I saw them making a test in the lab.
53
"Q. 395. When was that made, before or after your tests? A. That was done after, I think. It may have been before. I am not absolutely sure on that."
54
On cross examination, Mr. Kukulski testified as follows:
55
"XQ. 639. Now you said that you made some tests on the Exhibit 24 device on the high school football field across the street from your plant? A. Correct.
56
"XQ. 640. You said that it was in the Fall of 1948? A. That is right.
57
"XQ. 641. Can you come any closer than that to setting the date of those tests? A. We could ascertain it rather closely from the drawings.
58
"Mr. Knoblock: Could I have the drawings on the wheels?
59
"Mr. Wyss: We don't have the drawings on the wheels. This is the only drawing.
60
"The Witness: Just about this time, September 25th, I would say, somewhere the beginning of October.
61
"XQ. 642. You mean the beginning of November? A. I can't remember that close now. I would say it was shortly after this layout.
62
"XQ. 643. Could it have been the following Spring? A. No. Shortly after this."
63
It is our opinion that the foregoing testimony does not clearly show that the device was successfully tested prior to appellees' filing date of October 8, 1948. Furthermore, appellant has neither argued nor made a showing of diligence from a time immediately preceding appellees' entry into the field to a subsequent reduction to practice as required by the rule stated in Hull v. Davenport, supra. Therefore, this aspect of interference law is not before us. However, our analysis of the testimony of Kukulski, both cross and direct, does not definitely show that Exhibit 24 was adequately tested prior to appellees' filing date, nor are there sufficient facts given which would lead to such a conclusion. We are therefore of the opinion the Kukulski's testimony does not adequately corroborate Jepson's testimony.
64
Mr. Ottosen, head of the Model Shop wherein Exhibit 24 was made, testified as follows:
65
"Q. 115. When did you build the sprinkler, Jepson Exhibit 24? When would you say that you completed it? A. That would be the same year, 1948.
66
"Q. 116. Would you be able to tell what part of the year it was? A. Yes. It was early summer.
67
"Q. 117. Early summer of 1948? A. Yes, because immediately after we made that one, we found that we didn't get quite enough traction — I mean pull — as we wanted. We always like to have double of what we need. At the same time, we knew by driving with two wheels we would get more traction than we would with one. That is why we went and designed this with the double drive.
68
"Q. 118. Did you see that sprinkler that you built, Mr. Ottosen, which is Jepson Exhibit 24, tested or did you test it yourself? A. I tested it and when it was tested it was on the roof. That we run on the roof.
69
"Q. 119. Do you happen to know of your own knowledge whether it was tested on any lawns? A. We did test it across the street.
70
"Q. 120. By across the street you mean — A. Across from the plant there is a parkway owned by the Board of Education.
71
"Q. 121. Did you see it tested there? A. I saw it tested there.
72
"Q. 122. Would you be able to tell about when that was? A. That was in the summer of 1948."
73
The board summarized part of Ottosen's testimony as follows:
74
"The layout above referred to is Exhibit 65, which was finished September 25, 1948 (page 180 Qs. 361, 362). Jepson says after he conceived the idea he `at first' asked Kukulski to make a layout and `later on' authorized the model shop to building up makers just worked from the layout (page 65 Q. 281; page 66 Q. 283). Ottosen nevertheless says he never saw the layout before he built Exhibit 24 (page 241 Q. 102A). Since this testimony is in conflict with that of other witnesses it would appear to be in error particularly as to the date, since the testimony of the others conforms to contemporaneous records. * * *"
75
We feel, as did the board, that Ottosen's testimony is in conflict with other of the testimony which was given both as to the time when Exhibit 24 was built and as to when it was tested. It is therefore our opinion that it does not corroborate Jepson's testimony of a successful reduction to practice prior to the filing date of appellees' application.
76
Mr. Vaillant, an engineer in charge of the testing laboratory having the function of testing models, gave the following testimony:
77
"Q. 96. Mr. Vaillant, I hand you herewith a photograph which has been offered in evidence as Jepson Exhibit 25. Did you take the photograph? A. Yes, I did.
78
"Q. 97. When did you take it? A. I would say, 10/1/48.
79
"Q. 98. Are you sure that you took it on that date? A. That was the date.
80
"Q. 99. Have you ever seen the device that is photographed there? A. Yes, I have.
81
"Q. 100. Did you make any tests on it? A. Yes, I have. I tested that sprinkler personally on the roof. There again, we were interested in the amount of torque that was developed by the amount of pull.
82
"Q. 101. Is that the same sprinkler that I hand you herewith, which has been marked Jepson Exhibit 24? A. That is correct, the same sprinkler.
83
"Q. 102. And you tested that personally on the roof? A. Yes, I did.
84
"Q. 103. Did you test it anywhere else? A. No, I didn't test it anywhere else, just on the roof.
85
"Q. 104. What would you say of the results of the test that you made on the roof? A. We found it to be very satisfactory. If I remember right, we had much more torque with this model. As a matter of fact, I think the torque was at least twice as much, if I recall rightly."
86
While this testimony indicates that the photograph was taken on "10-1-48," there is no statement therein as to when the actual sprinkler, Exhibit 24, was tested. It is therefore our opinion that this testimony is insufficient to corroborate Jepson's testimony to the effect that Exhibit 24 was completely tested prior to the filing date of appellees' application.
87
The board found that no test record were produced by appellant with respect to Exhibit 24. In this respect the board stated:
88
"* * * When Ottosen turned the Exhibit 24 device over to the Testing Department (page 244 Q. 129) it would appear that this `first model of the double drive' (page 241 Q. 100) would be subjected to the `official testing' described above. However, no records are produced from the test report file (Cf. page 265 Q. 47 and page 267) that concern the Exhibit 24 sprinkler. Such records, Exhibits 67 to 69, were produced with respect to the earlier sprinkler shown in Exhibits 11 and 12. Those tests were made by the technician Lane (page 267 Q. 63) and Lane later made tests of the Exhibit 24 device with Kukulski on the football field (pages 182, 183); but Vaillant does not testify concerning those tests. Vaillant testifies that he himself tested the Exhibit 24 sprinkler on the roof, and `just on the roof' (pages 273, 274 Qs. 100 to 103). He does not state when that was, and testifies as follows as to the `results' (page 274): * * *"
89
The board's statement is not controverted. However, the record does show that the concern which employs Jepson is accustomed to keeping testing records. It would seem that such records should have been produced. See MacGregor v. Johnston, 71 F.2d 165, 21 C.C. P.A., Patents, 1216.
90
Appellant urges that no extensive testing of Exhibit 24 was required because another model having one driven member (the model which we held not to read on the counts) was extensively tested. However, it is our opinion that the testing of that other model has no bearing on the reduction to practice of Exhibit 24 since that embodiment relates to a species of the invention which is not supported by the counts.
91
It is our opinion, after making the foregoing analysis of the facts of this case in the light of the applicable law, that Jepson's testimony of a successful reduction to practice prior to appellees' filing date has not been adequately corroborated by the testimony of the other witnesses. In short, reviewing the board's decision, the record, and the briefs, we are of the opinion that the junior party, Jepson, has not met the burden of proving priority of invention by a preponderance of the evidence.
92
For the foregoing reasons, the decision of the Board of Patent Interferences is affirmed.
93
Affirmed.
94
Interference No. 86,202 (Appeal No. 6159).
95
Interference No. 86,202 (Appeal No. 6159) involves the Jepson application, Serial No. 126,857, filed November 12, 1949, and the Egly and Harris joint application, Serial No. 53,492, filed October 8, 1948. This interference resulted from the granting of a motion for an additional interference by Jepson in the companion interference. Jepson is the junior party.
96
The Egly-Harris application was partly described in conjunction with the above companion interference. However, in addition to the above-described structure, the application discloses a mechanical arrangement consisting of a lever fixed to an eccentric disk mounted on the sprinkler housing. The disk is in turn mechanically coupled to one of the shafts, which is driven by the water motor. By manipulating the lever, the shaft is caused to change its position for the ultimate purpose of causing the roller which is affixed to said shaft to move toward another roller for the purpose of clamping the hose therebetween.
97
The Jepson structure disclosed in application Serial No. 126,857, is a travelling sprinkler of the general type described in conjunction with the above companion interference. The sprinkler consists of a housing in which is mounted a horizontal shaft having two portions of worm gearing thereon. As the water motor operates suitable gearing causes the horizontal shaft to rotate. The wormed portions of the shaft are each geared to and thus rotate vertical shafts journalled in bearings. Each bearing can move in the housing. Levers are operatively positioned relative to said bearings to cause said bearings and shafts, when the levers are manipulated, to move toward and away from each other against the bias of springs. The function of the foregoing structure is to facilitate the positioning of the garden hose between the rollers by causing the rollers to move toward and away from each other.
98
The following four counts are in issue in this case:
99
"1. In a self-propelling lawn sprinkler, a movable carriage, a motor associated with said carriage and rotatable in response to the conversion of water under pressure supplied thereto through a hose or the like to mechanical motion, means for supporting said carriage, a pair of spaced vertical shafts supported by said carriage and drivingly connected to said water motor, a pair of friction drive rollers one connected to each of said shafts adapted to receive therebetween said hose, means for biasing said rollers into frictional engagement with a hose disposed therebetween whereby said sprinkler is pulled along said hose in response to operation of said motor, and water distributing means on said carriage for sprinkling an area surrounding said carriage when water under pressure is supplied to said water distributing means.
100
"2. For use in a self-propelling lawn sprinkler of the type comprising a movable carriage and a water motor associated therewith and rotatable in response to the conversion of water under pressure supplied thereto through a hose or the like to mechanical motion, the combination of a pair of spaced vertical shafts capable of being drivingly connected to said water motor, and a pair of friction drive rollers one connected to each of said shafts for receiving therebetween said hose, said rollers and associated shafts being movable apart when it is desired to insert said hose between said rollers.
101
"3. A traveling lawn sprinkler comprising a housing adapted to be connected to a flexible water conduit, a water reactance sprinkler unit rotatably mounted by said housing, rotatable drive members actuated by said unit and adapted for frictional driving engagement with said conduit to propel said housing, and means for locking said drive members in conduit-gripping relation.
102
"4. A traveling lawn sprinkler comprising a housing adapted to be connected to a flexible water conduit, a water reactance sprinkler unit rotatably mounted by said housing, rotatable drive members actuated by said unit and including a pair of rotatable conduit-clamping rollers having frictional driving engagement with said conduit to propel said housing, and a plurality of spaced ground-engaging supports connected to said housing."
103
The board granted priority to the parties Egly and Harris.
104
As stated above, Jepson is the junior party. In order to obtain priority he must prove either an actual reduction to practice prior to the earliest date to which appellee may be entitled for actual or constructive reduction, Holslag v. Steinert, supra, or prior conception coupled with the exercise of reasonable diligence from just prior to the senior party's entry into the field to a later actual or constructive reduction to practice, Hull v. Davenport, supra.
105
The board found that there was no reasonable continuous diligence on the part of Jepson up to the time of the filing of his application on November 12, 1949. Appellant, has found no error in this holding. This aspect of the case is therefore not before us.
106
Appellant urges, however, that the mechanism described in the counts was successfully reduced to practice prior to appellees' filing date. Relative to counts 3 and 4 appellant relies on the actual reduction to practice of the structure of Exhibits 11 and 12, and Exhibit 24.
107
We discussed the structure of Exhibits 11 and 12 at great length in the above companion appeal, and were of the opinion that they did not meet the counts. Counts 3 and 4 of the present interference call for "rotatable drive members actuated by said unit." Count 1 of the companion interference calls for the same structure. For reasons given in the companion appeal, we are of the opinion that the structure of Exhibits 11 and 12 does not meet this limitation in the counts. Therefore the structure of Exhibits 11 and 12 cannot be used as a reduction to practice of counts 3 and 4.
108
We reviewed the evidence relative to the reduction to practice of Exhibit 24 in the companion appeal. For the same reasons given therein, we are of the opinion that appellant has not proved by a preponderance of the evidence that he actually reduced Exhibit 24 to practice prior to appellees' filing date. We therefore deem it unnecessary to discuss this subject matter again at this point.
109
It is to be noted that counts 3 and 4 contain certain limitations which are not present in the counts of the companion appeal. These limitations are the locking means (count 3) and the ground engaging supports (count 4). However, since we have already determined that Exhibits 11, 12, and 24 cannot be relied upon for a reduction to practice of those counts, it is unnecessary for us to determine whether those exhibits possess the aforementioned limitations.
110
Appellant Jepson strongly urges that Exhibit 18 clearly supports every element called for by count 2, supra, and that this exhibit was successfully reduced to practice before any date upon which the appellees can rely. Exhibit 18 is a mechanical movement which was built for Jepson for the purpose of testing certain principles of operation of a self propelled lawn sprinkler. This exhibit is not a complete travelling sprinkler, but a sub-combination of parts which allegedly could be used in such a sprinkler. It is not necessary for the purposes of this opinion to describe Exhibit 18 in great detail. It is only necessary to state that Exhibit 18 is a device adapted to be cranked by hand and relates primarily to gearing for causing a single rotary motion input to positively drive two shafts having rollers affixed thereon, said rollers being adapted to clamp a hose therebetween. It is to be noted that Exhibit 18 does not have the structure recited in the preamble of count 2, nor does it possess the water motor or certain other parts necessary for a complete travelling sprinkler.
111
Appellant strongly urges that count 2 is not directed to a travelling lawn sprinkler but "to a mechanical movement or mechanism which is capable of being used in a travelling lawn sprinkler of the type having a water motor," and that the preamble of count 2 is not a limitation of the count. Appellant then in essence concludes that the Exhibit 18 mechanical movement constitutes a reduction to practice of count 2.
112
It is our opinion that appellants' argument is not sound. In Kropa v. Robie, supra [187 F.2d 151], we made an exhaustive analysis of the effect of the preamble on claims or counts. In the course of our opinion, we stated:
113
"* * * This court has often had before it the Jepson problem (243 O.G. 525-1917) — whether the preamble to claims in ex parte cases or to the counts in interference cases should be considered as limitations in the claims or counts. Of the thirty-seven cases of this court we have reviewed with respect to this problem it appears that the preamble has been denied the effect of a limitation where the claim or count was drawn to a structure and the portion of the claim following the preamble was a self-contained description of the structure not depending for completeness upon the introductory clause; * * *. In those cases, the claim or count apart from the introductory clause completely defined the subject matter, and the preamble merely stated a purpose or intended use of that subject matter. On the other hand, in those ex parte and interference cases where the preamble to the claim or count was expressly or by necessary implication given the effect of a limitation, the introductory phrase was deemed essential to point out the invention defined by the claim or count. In the latter class of cases, the preamble was considered necessary to give life, meaning and vitality to the claims or counts. Usually, in those cases, there inhered in the article specified in the preamble a problem which transcended that before prior artisans and the solution of which was not conceived by or known to them. * * *"
114
An analysis of count 2 shows that the portion of the count following the preamble is not a self-contained description of structure not depending for completeness upon the introductory clause. More specifically, the body of count 2, by reciting the water motor, relies for completeness on the preamble of the count. Furthermore, it is our opinion in the present case that the preamble to count 2 is essential to point out the invention defined by the count, and is necessary to give life, meaning, and vitality to the count. It can readily be seen that if the preamble and the reference to the water motor are deleted from the count, there is very little left to the count. Thus it is our opinion that count 2 does not merely recite a mechanical movement subcombination, but is directed to a self-propelling lawn sprinkler.
115
Since count 2, in our opinion, is directed to a travelling lawn sprinkler, and since Exhibit 18 is but a mechanical movement, we are of the opinion that Exhibit 18 cannot constitute a reduction to practice of count 2 since it is not directed to the same device recited in the count. This being the case, it is unnecessary to review the evidence which has been submitted of proving a reduction to practice of Exhibit 18.
116
Appellant urges that a successful reduction to practice of count 2 effectively amounts to a successful reduction of count 1 of this interference. In essence, appellant states that since Exhibit 18, which is but a mechanical movement, was reduced to practice, it must serve as a reduction to practice of count 1 which is directed to a travelling sprinkler because it was obvious that Exhibit 18 could be driven by the water motor of a travelling sprinkler so that no testing of a device such as recited in count 1 was required. We have already determined, in connection with count 2, that the mechanical movement of Exhibit 18 and a travelling sprinkler do not relate to the same device. Furthermore, appellant's argument that the reduction to practice of Exhibit 18 constitutes a reduction to practice of count 1 seems to be refuted by the facts of the case. The following testimony was given by Mr. Jepson on his cross-examination:
117
"* * * Did you ever make a model incorporating the mechanism of Exhibit 18 as mounted on wheels separate from the rollers, as illustrated in the patent application 126857?
118
"Mr. Wyss: He has already answered by saying he did not.
119
"A. I believe I did answer that. We did not. It looked too complicated. That is why I went back to this other type of —
120
"Mr. Knoblock: For the record, I wanted it repeated. That is all."
121
It would appear that if the inventor himself thought it was too complicated to incorporate Exhibit 18 into a travelling sprinkler, it cannot now be urged that the building of Exhibit 18 constituted a reduction to practice of the travelling sprinkler.
122
We therefore cannot subscribe to appellant's argument, and we hold that Exhibit 18 does not constitute a reduction to practice of count 1.
123
It is to be noted that appellant did not include in the record appellees' Exhibit 42, an article which was published in a magazine. The exhibit was added on stipulation of the parties to correct diminution of the record, said stipulation having been instigated by appellees. This added matter was not necessary for a proper decision in this case, and costs for making such addition are therefore assessed against appellees.
124
We have carefully reviewed the record of this case, the briefs, and the board's exhaustive and complete decision. However, we are of the opinion that appellant as junior party has not proved by a preponderance of the evidence that he was the first inventor.
125
For the foregoing reasons, the decisions appealed from are affirmed.
126
Affirmed.
127
JACKSON, Judge, retired, recalled to participate.
128
O'CONNELL, Acting Chief Judge, and COLE, Judge, were present at the argument of this case, but, by reason of illness, did not participate in the decision. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1547472/ | 867 A.2d 1040 (2005)
385 Md. 123
Jesse ANDERSON
v.
STATE of Maryland.
No. 41, September Term, 2004.
Court of Appeals of Maryland.
February 9, 2005.
*1041 Brian M. Saccenti, Asst. Public Defender, Julia Doyle Bernhardt, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner.
Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
WILNER, J.
There is substantial evidence that petitioner, Jesse Anderson, sold heroin to two undercover Baltimore City detectives. The question is whether, because of the way the State chose to proceed in the case, Anderson may be prosecuted for those offenses. The answer is "no."
BACKGROUND
Anderson was the target of a sting operation conducted by Detectives Clasing, Barnes, and Butler. The operational scenario, as described by Detective Clasing, was to send one or more undercover detectives to purchase drugs from the target, to wait until those detectives, after purchasing the drugs, left the area, and then to have another detective accost the target in order to ascertain his identity. So as not to compromise the continued effectiveness of the undercover officers, charges against the target are normally delayed for a time.
In furtherance of that scheme, at 1:55 p.m. on October 1, 2002, Detective Barnes approached Anderson in the 1500 block of Myrtle Avenue and purchased two capsules of heroin from him for $20. Anderson removed the capsules from a cigarette pack he was holding. With the purchase complete, Barnes left the area. Five minutes later, Detective Butler approached Anderson, in the same place, and he, too, purchased two capsules containing heroin for $20 and then left the area. Those capsules also were removed from the cigarette pack. After making their respective purchases, Barnes and Butler called Detective Clasing and gave him a description of Anderson.
At about 2:30 p.m., Detective Clasing approached Anderson in order to conduct what he referred to as a "field interview." After directing Anderson to sit down on the curb, Clasing saw him throw a red object under a parked car. Clasing retrieved the object and found it to be a cigarette pack containing 25 capsules of suspected heroin. Clasing arrested Anderson and, the next day October 2, 2002 filed a Statement of Charges against him in the District Court. The Statement of Charges accused Anderson of one count of possession of heroin on October 1, 2002, at 1500 Myrtle Avenue. Eight days later, October 10, Anderson appeared in District Court and, either on a plea of guilty or a plea of not guilty with an agreed statement of facts which of the two is not entirely clear he was found guilty and sentenced to a term of nine months in the Baltimore City Jail, which he began serving immediately.[1]
*1042 On November 4, 2002, nearly four weeks after the District Court proceeding, the State obtained an indictment based on the sale to Detective Butler. The indictment charged Anderson with possession with intent to distribute heroin and with distribution of heroin to Butler. The date and place of those offenses were alleged to be October 1, 2002, at 1500 Myrtle Avenue. On November 12, the State obtained a second indictment, based on the sale to Detective Barnes. That indictment charged Anderson with possession of heroin, possession with intent to distribute heroin, and distribution of heroin to Detective Barnes. The date and place of those offenses were alleged to be October 1, 2002, at 1500 Myrtle Avenue.
Anderson moved to dismiss the two indictments on the ground of double jeopardy. *1043 He averred that the offenses charged in the indictments and that charged in the District Court case all arose at about the same time and place and involved the same cigarette pack, and he argued that his conviction in the District Court barred further prosecution. The court indicated that the argument may have had merit under the holding in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) but observed that the Supreme Court had later overruled that decision. See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The applicable test for double jeopardy purposes, the court found, remained that enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). To constitute double jeopardy under that test, the court declared, the multiple offenses must arise from incidents that occur at the same time and place, but it found that the charges embodied in the two indictments arose from incidents that occurred at a different time than the incident underlying the District Court charge. For that reason, the motion was denied.
Anderson filed an immediate appeal to the Court of Special Appeals. See Bunting v. State, 312 Md. 472, 477-78, 540 A.2d 805, 807-08 (1988) and cases cited there, recognizing the right under the collateral order doctrine to take an immediate appeal from the denial of a motion to dismiss a criminal charge on double jeopardy grounds. The intermediate appellate court, in an unreported opinion, agreed that, because all of the possession charges, in both the indictments and the Statement of Charges, "relate to the same quantity of CDS under appellant's control on the day of his arrest," double jeopardy barred the possession and possession with intent to distribute charges in the two indictments. Relying on Hawkins v. State, 77 Md.App. 338, 550 A.2d 416 (1988), however, the court held that the distribution charge arose from "separate acts unrelated to the possession offenses which resulted in appellant's arrest by Detective Clasing." It noted that the distribution offenses had already occurred prior to Clasing's observation of Anderson discarding the cigarette pack and that the District Court conviction therefore had no bearing on the earlier distributions. We granted certiorari to review that decision.
DISCUSSION
As a contextual preface to our consideration of the double jeopardy issue, it is helpful to note that, subject to certain exceptions, the District Court has exclusive initial jurisdiction over a charge of simple possession of a controlled dangerous substance in violation of Maryland Code, § 5-601 of the Criminal Law Article (CL). See Maryland Code, §§ 4-301(b)(1) and 4-302(d)(2) of the Cts. & Jud. Proc. Article (CJP). One of the exceptions to that exclusive initial jurisdiction, provided for in CJP § 4-302(d)(2)(ii), is that the Circuit Court may try a charge of simple possession if the defendant "[i]s charged with another offense arising out of the same circumstances that is within a circuit court's jurisdiction." (Emphasis added).
Distribution of a controlled dangerous substance and possession with intent to distribute such a substance are felonies. See CL §§ 5-602 and 5-607(a). As such, and because they are not within the ambit of CJP § 4-302(a), those charges must originate and be tried in the Circuit Court. Thus, if a distribution or possession with intent charge arises from the "same circumstances" as a simple possession charge, the latter may be joined with the former and filed and tried in the Circuit Court. That has a significant utility, for at least two reasons. First, even if one or more of the crimes charged is a lesser included offense of another, subject to any collateral reason for severance, all may be *1044 prosecuted together, and any double jeopardy problem that arises from multiple convictions may be resolved by merging the lesser and greater convictions and imposing sentence only on the greater offense. That allows the State to punish the defendant for the most serious crime.
Second, joinder in the Circuit Court avoids the prospect of the kind of double jeopardy problem that has arisen in this case. Subject to the authority granted to the State Prosecutor in title 9, subtitle 12 of the State Government Article, it is the statutory duty of the State's Attorney to "prosecute... on the part of the State, all cases in which the State may be interested." See Maryland Code, Art. 10, § 34; also Babbitt v. State, 294 Md. 134, 448 A.2d 930 (1982). Police officers, however, on their own and apparently without consulting the prosecutors in the State's Attorney's Office, are permitted to file criminal charges in the District Court. Maryland Rule 4-202(b) reflects that practice by permitting a Statement of Charges to be signed only by a peace officer or District Court Commissioner, rather than by a prosecutor. If left unknown to, or unattended by, the prosecutor, however, the District Court case can create coordination problems that can lead to the very situation now before us.
Both the Federal Constitution, through the Fifth and Fourteenth Amendments, and Maryland common law prohibit the State from placing a person twice in jeopardy for the same offense. That prohibition provides a dual protection against prosecuting a person for an offense after that person has already been prosecuted for, and either convicted or acquitted of, the "same offense," and against imposing multiple punishments for the "same offense." See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Purnell v. State, 375 Md. 678, 827 A.2d 68 (2003). With respect to both protections, the issue most often raised is whether the second prosecution or additional punishment is, in fact, for the "same offense."
That issue can arise in at least two contexts where there are two or more separate statutes or common law provisions that embrace the same criminal conduct, and where a single statute may be read as creating multiple units of prosecution for search and conduct. Depending on the context, the issue can turn on whether (1) the two or more offenses charged, in fact, arise from the same incident or course of conduct and thus are the same in fact, or (2) if so, despite a facial distinction between the offenses, as defined in the statutes or by the common law, the relationship between them is such that they are the same in law for double jeopardy purposes. See Jones v. State, 357 Md. 141, 158, 742 A.2d 493, 502 (1999). Both questions sameness in fact and sameness in law are relevant here.
In Blockburger v. United States, supra, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the Supreme Court held that the standard to be used in resolving the sameness in law issue for purposes of the Constitutional prohibition was the "required evidence" test, and we have adopted and adhered to that standard as well in applying the common law prohibition. See Newton v. State, 280 Md. 260, 373 A.2d 262 (1977); Purnell v. State, supra, 375 Md. at 693, 827 A.2d at 77. In Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 246-47 (1976), we defined that test as follows:
"The required evidence test is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct *1045 of episode. But where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes."
See also Middleton v. State, 318 Md. 749, 757-58, 569 A.2d 1276, 1279-80 (1990).
That test focuses on the relationship between the offenses, rather than on whether the multiple offenses arise from the same conduct or incident; indeed, it assumes sameness in fact. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The question here, in that regard, is whether, under a Blockburger analysis, possession of a controlled substance is the "same offense" as possession with intent to distribute or actual distribution of the substance.
In State v. Woodson, 338 Md. 322, 329, 658 A.2d 272, 276 (1995), we reached the necessary conclusion that, because every element of the crime of possession is also an element of the crime of possession with intent to distribute and only the latter offense contains an element intent to distribute not contained in the former, the two offenses "are deemed the same offense for double jeopardy purposes." In Hankins v. State, 80 Md.App. 647, 565 A.2d 686 (1989), the Court of Special Appeals correctly concluded that the same result pertains with respect to possession and distribution.
Criminal Law Art. § 5-601(a)(1) makes it unlawful to possess a controlled dangerous substance. The word "possess" is defined in § 5-101(u) as to "exercise actual or constructive dominion or control over a thing by one or more persons." Section 5-602(1) makes it unlawful to distribute a controlled dangerous substance. The word "distribute," with respect to a controlled dangerous substance, is defined in § 5-101(l) as "to deliver other than by dispensing." "Dispense" is defined in § 5-101(k) as to deliver "by or in accordance with the lawful order of an authorized provider" as defined in § 5-101(d). "Deliver" means "to make an actual, constructive, or attempted transfer or exchange from one person to another whether or not remuneration is paid or an agency relationship exists." § 5-101(h).
Putting these various definitions together, distribution occurs when a controlled dangerous substance is delivered, either actually or constructively, other than by lawful order of an authorized provider. It is not possible, under these statutes, to "distribute" a controlled dangerous substance in violation of § 5-602 unless the distributor has actual or constructive possession (dominion or control) of the substance. Thus, possession of the substance distributed is necessarily an element of the distribution. The crime of distribution obviously contains an element not contained in the crime of possession the distribution but there is no element in the crime of possession not contained in the crime of distribution. Upon the same analysis used in Woodson, therefore, possession and distribution are the "same" offenses for double jeopardy purposes.
It follows, then, that possession of the heroin distributed to Detectives Barnes and Butler is a lesser included offense of the respective distributions to the detectives, as charged in the two indictments, and that it is therefore the "same offense" as the distribution for double jeopardy purposes. The sameness in law prong is clearly established. The issue thus becomes whether the possession offense charged in the District Court and the distribution offenses charged in the indictments arose as part of the same course of conduct whether they are the same in fact. Anderson, of course, urges that they did arise from the same course of conduct that the heroin that he possessed *1046 when arrested by Detective Clasing he also possessed when the capsules were sold to Detectives Butler and Barnes and, indeed, came from the same cigarette pack. The State looks at the matter differently. Relying on Hawkins v. State, 77 Md.App. 338, 550 A.2d 416 (1988), it asserts that, when arrested by Detective Clasing, Anderson no longer had possession of the capsules sold to the detectives, so the possession could not be the same. Possession of the four capsules sold to the detectives ended when the capsules were sold. When arrested by Clasing, he had only the 25 capsules. Anderson focuses on the situation at the moment of the first distribution; the State focuses on the situation at the time of Anderson's arrest.
Hawkins does, indeed, support the State's position. In that case, a police officer observed Hawkins remove some aluminum foil packets from a plastic bag, hand one to another individual, and accept money from that individual. She then alerted other officers and directed them to arrest Hawkins. As an officer approached, Hawkins fled. While running, he reached into his pocket and discarded the plastic bag containing the aluminum foil packets, which packets, it was later shown, contained marijuana and PCP. Hawkins was convicted of both possession and distribution, and the question arose whether he could be sentenced for both. Relying on a number of out-of-State cases, the Court of Special Appeals held that the multiple sentences could stand because the crimes "spawned from separate acts." That was so, the court held, because the distribution had been completed before the discard of the bag observed by the arresting officer.
There have been a number of cases in which this issue has been addressed. The cases arise from a wide variety of fact situations, and, not surprisingly, they reach different results. We start with the proposition that, absent a clear statutory direction to the contrary, the uninterrupted possession of an item of contraband is ordinarily regarded as one continuing offense under Maryland law. See Duncan v. State, 282 Md. 385, 389, 384 A.2d 456, 458-59 (1978) where, in dicta, we observed that "[w]hen mere possession of a prohibited article is a crime, the offense is a continuing one because the crime is committed each day the article remains in possession, as there is a continuing course of conduct." See also Webb v. State, 311 Md. 610, 536 A.2d 1161 (1988) where we applied that doctrine to the possession of a handgun and precluded separate convictions and sentences for the uninterrupted possession of the same handgun on two occasions three hours apart. The doctrine of continuing possession is both unremarkable and necessary; otherwise, what would the unit of prosecution be each minute the item is possessed, each hour, each day?
We noted in Webb, however:
"It may be that were the wearing, carrying, or transporting of the handgun by Webb interrupted by some lawful possession of it ... a subsequent unlawful wearing, carrying, or transporting of it would constitute another violation of the statute. And it may be that had Webb removed the weapon from his actual or constructive possession, it would be a separate violation when he retrieved it and wore it again on his person. And it may be that if it was shown that the handgun involved in the first incident was a different weapon from that involved in the second incident, there would be two violations."
Id. at 618, 536 A.2d at 1165.
These hypotheses illustrate that, when the possession that underlies the first incident ends before the second incident when the possession is interrupted in some way and is not continuous multiple offenses, *1047 separately punishable, may arise. That is one aspect of the problem, and happens to be the one now before us. Another, which may coexist with the first, is where the defendant possesses two or more quantities of a contraband drug that are kept in different places. Although that aspect is not before us, the underlying question is the same in both situations whether the possession that underlies one offense is the same possession that underlies the other and much of the discussion of the double jeopardy issue has been in that second context. The fact patterns vary, and it is not easy to compartmentalize the decisions. The common thread, if there is one, is to consider if there is a commonality of time, location, and purpose: was the contraband that formed the basis of the two offenses possessed at the same time, in the same location, and for essentially the same purpose? If so, courts have found the two offenses to be the same.
The easier cases are where the defendant simultaneously possesses small amounts of contraband in nearby places for personal use. In that situation, where there is a commonality of time, location, and purpose, courts have concluded that there is but one possession and therefore but one offense. See State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998) (en banc), where a minute amount of marijuana was found in the defendant's store and another minute amount in his car that was parked just outside the store, and he was convicted on two counts of possession. Noting that the statute was silent as to the unit of prosecution in that situation, the Washington court applied the rule of lenity. In doing so, it observed that, under the State's theory, a defendant could be convicted and sentenced three times if marijuana was found in his sock, his pocket, and his purse, and it declined to permit that "slippery slope of prosecutorial discretion to multiply charges." Id. at 1075. See also United States v. Wallis, 1 M.J. 975 (N.C.M.R.1976) (possession of unlit marijuana cigarette by sailor while on flight deck and possession of small amount of marijuana in his locker discovered fifteen minutes later constituted one offense); United States v. Hughes, 1 M.J. 346 (C.M.A.1976).
The courts have reached different results where there is not a commonality in all three respects. In Potts v. State, 300 Md. 567, 479 A.2d 1335 (1984), the police found in Potts's house, while executing a search warrant, two quantities of marijuana one consisting of 40 bags of the drug located in a plastic shopping bag and the other consisting of three bags found in a cigar box. The Court regarded the latter as a personal supply. Potts was convicted of possession with intent to distribute and sentenced to two years imprisonment based on the first stash and simple possession, with a concurrent two month sentence based on the second, and he complained that, under double jeopardy principles, the convictions had to be merged. This Court disagreed, apparently because the two stashes were being held for different purposes. Compare Rashad v. Burt, 108 F.3d 677 (6th Cir.1997) where the court held that a defendant who had been convicted of possession based on a stash of 650 grams of cocaine found in his house, could not be later prosecuted for possession with intent to distribute 4,850 grams of cocaine found in his car, parked just outside his house.
In In re Davis, 142 Wash.2d 165, 12 P.3d 603 (2000), the court sustained separate convictions and sentences for possession with intent to manufacture or distribute based on evidence that the defendant operated two distinct marijuana growing operations at different locations same time, same purpose, different location. *1048 See also United States v. Blakeney, 753 F.2d 152 (D.C.Cir.1985), where the court sustained separate convictions and sentences based on possession of nearly five pounds of marijuana found in defendant's home and seven envelopes of marijuana found in his possession when he was subsequently arrested at his place of employment, several miles away. The court stressed not only the difference in location but also in purpose to distribute the marijuana possessed at work to co-workers at the place of employment and to reserve the stash at home for other distributions.
Some of the cases are hard to pigeonhole under this approach, in that they either stretch or sharply circumscribe notions of commonality as to time, location, or purpose. In State v. Stevens, 123 Wis.2d 303, 367 N.W.2d 788, cert. denied, 474 U.S. 852, 106 S.Ct. 151, 88 L.Ed.2d 125 (1985), the court upheld convictions for possession with intent to distribute based on a stash of cocaine and marijuana found and seized during a search of the defendant's home on December 29 and separate convictions for simple possession of cocaine and marijuana based on quantities found in a shoulder bag in the defendant's car the next day, as he was returning home from vacation. Though acknowledging that possession and possession with intent to deliver are the same in law, the court viewed the offenses as different in fact if they "are either separated in time or are significantly different in nature." 367 N.W.2d at 798. It noted that the defendant's possession of the drugs in his house had been terminated by the seizure of those drugs on December 29, but that his possession of the drugs in the shoulder bag continued the next day. There was thus, in the court's view, no commonality as to time.
A similar result, based on slightly different facts, was reached in United States v. Ray, 731 F.2d 1361 (9th Cir.1984). Although the opinion is skimpy in reciting the underlying facts, it appears that one count in an indictment alleged distribution of a quantity of cocaine on December 7, and another alleged possession with intent to distribute a remaining quantity of cocaine on December 8. The court affirmed separate convictions for the two offenses on the ground, tersely stated, that "[t]he cocaine at issue in count 28 cannot be the same cocaine that is at issue in count 27, since the count 27 cocaine had already been distributed by December 8." Id. at 1368.
In United States v. Carter, 576 F.2d 1061 (3rd Cir.1978), Carter carried 19 one-ounce packages of heroin from Los Angeles to Newark, where he delivered them all to Gorsuch at the same time. Gorsuch separated the heroin into two stashes one, containing 677 grams, was for a pre-arranged resale the following day; the other, containing 95 grams, he retained for future resale to others. Gorsuch followed through with the pre-arranged sale, to undercover Federal agents, whereupon Carter, as a co-conspirator, was charged with separate counts of possession with intent to distribute the 95 grams and distribution of the 677 grams, and he complained that the indictment was multiplicitous that it charged the same offense in separate counts.
Carter first argued that he had made only one distribution, of the entire amount to Gorsuch, and that he was not liable for Gorsuch's subsequent conduct. The court rejected that argument on the basis that, as a co-conspirator, Carter could be convicted of the two substantive offenses committed by Gorsuch. As to the complaint of multiplicity, the court held that Congress intended that "two distinct offenses, punishable by separate sentences, should be seen to arise when the evidence shows that the acts of possession and distribution involved discrete quantities of narcotics, and *1049 thus that the facts required to prove the two offenses differ." Id. at 1064. Because Gorsuch retained the 95 grams for further distribution after the sale of the 677 grams, the court held that the possession and distribution counts were distinct: the heroin that was distributed was different from the heroin retained for future sale. The holding articulated by the court was:
"When an individual possesses an amount of heroin that could result in a future distribution, and when the same individual also distributes another quantity of heroin, he is punishable for both possession and for distribution."
Id. at 1064 (Emphasis added). The Carter court thus regarded the separation of the stash as being for different purposes and therefore as creating two separate possessions, only one of which was involved in the distribution.
That approach was also used in State v. McFadden, 63 Wash.App. 441, 820 P.2d 53 (1991), review denied, 119 Wash.2d 1002, 832 P.2d 487 (1992) where the defendant was charged with two counts of possession of cocaine one arising from 84 grams found in his van and the other from his bringing 5.5 grams into an apartment for the purpose of selling it. The court sustained the two charges on the ground that the two stashes were in different locations. An intermediate appellate court in Georgia took the same position in Camp v. State, 181 Ga.App. 714, 353 S.E.2d 832 (1987). The defendant had a large stash of marijuana, from which she took a small amount that she sold. Upholding separate sentences for possession with intent to distribute and for the distribution, the court concluded that "[i]nasmuch as the sale of marijuana was not directly related to nor did possession of the quantity sold constitute the basis for the count of possession of the remainder of the marijuana, the separate conviction and punishment did not constitute double jeopardy." Id. at 835.
The efficacy of applying a strict time, location, and purpose approach to street dealers such as Anderson depends on how we view those criteria, particularly that of time. Anderson began his working day with a certain quantity of drugs that he kept in the cigarette pack. He apparently remained in the same location near 1500 Myrtle Avenue throughout the day (or at least between 1:55 and 2:30 p.m.) distributing the drugs from that location and from that cigarette pack. There is no evidence that he was resupplied between the time he sold two capsules to Detective Barnes and the time he was arrested by Detective Clasing. There was, therefore, clearly a commonality as to location and purpose. The question is whether, for double jeopardy purposes, there was a continuity of time. Do we view the time element from the moment he started business, from the point at which he made each distribution, or from the point at which he was arrested?
Hawkins and Ray viewed the time element from the point of arrest: at that point, under that view, Anderson no longer had in his possession the drugs that previously had been distributed, so there was no commonality as to time. Because he did not then possess the drugs that he had sold to the detectives, his possession of what was left could have no bearing on, or significance with respect to, the distributions.
That view, we think, may work in some situations, but does not work here, principally because of the charge actually made against Anderson in the District Court. Although the Statement of Probable Cause attached to the Statement of Charges notes that the cigarette pack, when recovered by Detective Clasing, contained 25 gel-caps of suspected heroin, the Statement of Charges itself charged Anderson generally with possession of heroin in violation *1050 of CL § 5-601 on October 1, 2002 at 1500 Myrtle Avenue. It did not specify a time and did not specify how much heroin Anderson possessed. In a full prosecution of that offense, Anderson could have been convicted based on whatever he had in his possession that day at that place, including the drugs sold to detectives Barnes and Butler or, indeed, to anyone else.
In determining the scope of the former conviction, the court must ordinarily look at the effective charging document upon which judgment was entered, not just the evidence presented in support of that charge. We have often made clear that the primary purpose of a charging document is to inform the defendant of the accusation against him/her by so describing the crime "as to inform the accused of the specific conduct with which he is charged," Jones v. State, 303 Md. 323, 336, 493 A.2d 1062, 1069 (1985), in order, among other things, to "protect[ ] the accused from a future prosecution for the same offense." Williams v. State, 302 Md. 787, 791, 490 A.2d 1277, 1279 (1985). See also State v. Morton, 295 Md. 487, 490-91, 456 A.2d 909, 911 (1983) and cases cited there.
One may never know, unless a transcript is prepared, what evidence was presented, and one could never be certain in any event what evidence a trier of fact (or the court on motion) credited in reaching its verdict. The Supreme Court, for Constitutional purposes, and we, as a matter of common law, have rejected an "actual evidence" test to determine sameness in law, and we see no profit, absent special circumstances not present here, in adopting that test to determine sameness in fact. In most cases, the only sensible and workable criterion for determining the nature and scope of the prior offense is the effective charging document. That states the offense for which the defendant was tried.
Because the Statement of Charges filed in the District Court encompassed all of the heroin that Anderson possessed on October 1, 2002, at 1500 Myrtle Avenue, it necessarily included the heroin that he sold to Detectives Barnes and Butler. Having been convicted of that offense, he cannot later be prosecuted for crimes that, in law, constitute the same offense. The motion to dismiss the two indictments should have been granted.[2]
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY AND TO REMAND TO CIRCUIT COURT WITH INSTRUCTIONS TO DISMISS INDICTMENT NOS. XXXXXXXXX AND XXXXXXXXX; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.
NOTES
[1] The transcript of the District Court proceeding that was included in the record leaves a great deal to be desired and raised some serious concerns on our part. It shows that the possession of heroin charge was consolidated with a possession of cocaine charge arising from an entirely separate incident that occurred on September 12. It gives no indication that the State was represented at the trial, which, as noted, took place only eight days after the Statement of Charges was filed. There is no indication anywhere in the transcript that a prosecutor, or even Detective Clasing, who filed the Statement of Charges, was present. Clasing later testified that he was not present. The transcript shows that the only participants were the judge, who was not identified, the clerk, who was not identified, defense counsel, who was not identified, and Anderson.
The entire proceeding, which encompassed both charges, could not have taken more than five minutes, for it consumed less than four pages of transcript. The transcript shows that the clerk called the case and immediately read into the record a statement of facts relating to the possession of heroin charge that consumes less than a half-page (eleven lines) of transcript. Defense counsel indicated that he/she had no additions to the clerk's statement, whereupon the court immediately found, from the "facts as agreed as read into the record," that the evidence sufficed to support a verdict of guilty beyond a reasonable doubt and thus entered a verdict of guilty. That process was then repeated, in equally summary fashion, with respect to the cocaine charge.
Although the docket shows that, at some point, Anderson entered a plea of not guilty, when and how that was done is not clear from the record. No plea was entered or confirmed at the "trial." The court, when indicating its intent to impose a sentence of incarceration, asked Anderson, who begged not to be incarcerated, if he wanted to continue with his "guilty plea" or withdraw it. When Anderson responded that he wanted to continue, the court said that it had "agreed" to a sentence of nine months, which it then imposed. The court then immediately imposed a concurrent sentence of nine months with respect to the September 12 incident.
The judge's comments suggest that a bargain of some kind was negotiated and agreed to, although the record gives no indication of how, where, when, or under what circumstances such a bargain was struck, much less whether a prosecutor was even aware of such a bargain or participated in negotiating it. After this Opinion was initially filed, we were informed, in a Motion for Reconsideration, supported by an affidavit of an Assistant State's Attorney in Baltimore City, that the transcript that the parties placed and allowed to remain in the record as the "Official Transcript" of what had occurred in the District Court, that they each relied upon in presenting their arguments, and that we relied upon in resolving the issues presented, was "incomplete," "inaccurate," and "deficient." That "Official Transcript," we are now told, failed to reflect that the State's Attorney was aware of the District Court charge, that a prosecutor participated in the District Court proceeding, and that it was, in fact, the prosecutor, and not the clerk, who read "the agreed statement of charges." Although that would explain an otherwise apparent and troubling lack of prosecutorial oversight, it does not explain why the State's Attorney and defense counsel allowed such a now-conceded "incomplete," "inaccurate," and "deficient" transcript of the critical proceeding to be placed in the record in the Circuit Court and thus to be offered to that Court as an accurate representation of what had occurred or why the Public Defender and the Attorney General permitted such a wholly misleading transcript to remain in the record on appeal, without comment, to have relied on the transcript in their arguments to this Court, and, thereby, to have represented it as genuine. We have no doubt that the derelictions on the part of counsel were inadvertent and not deliberate.
[2] We need not consider here whether a different result would be warranted had the Statement of Charges specified and charged only the possession of the 25 capsules at 2:30 p.m. | 01-03-2023 | 10-30-2013 |
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