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https://www.courtlistener.com/api/rest/v3/opinions/1019454/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1096
DAVID A. ROBERTS,
Plaintiff - Appellant,
versus
JOHN NICHOLAS, Commissioner, Maine Department
of Human Services, and individually; PETER
WALSH, Individually and in his official
capacity as Commissioner of Maine Department
of Human Services; KEVIN W. CONCANNON,
Individually and in his official capacity as
Commissioner (former) of Maine Department of
Human Services; MARK O. VAN VALKENBURGH,
Individually and in his official capacity as
Agent for the Maine Department of Human
Services; INGRID B. LAPOINTE, Individually and
in her official capacity as Agent for the
Maine Department of Human Services; ANNE-MARIE
JOHNSON, Individually and in her official
capacity as Agent for the Maine Department of
Human Services; LORETTA DUMOND, Individually
and in her official capacity as Agent for the
Maine Department of Human Services; MAINE
DEPARTMENT OF HUMAN SERVICES,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-04-2039-WDQ)
Submitted: March 13, 2006 Decided: May 24, 2006
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
David A. Roberts, Appellant Pro Se. Joseph B. Spillman, Assistant
Attorney General, Baltimore, Maryland; Christopher Coles Taub,
OFFICE OF THE ATTORNEY GENERAL, Augusta, Maine, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
David A. Roberts appeals the order of the district court
dismissing his suit against the Maine Department of Human Services
and several current and former state officials (collectively
“MDHS”) for lack of subject matter jurisdiction. This lawsuit
arose out of attempts by MDHS to enforce a Maine state court child
support order. Roberts sued under 42 U.S.C. § 1983 (2000),
alleging that MDHS’s enforcement efforts violated his
constitutional rights. The district court held that the Rooker-
Feldman doctrine barred Roberts’s suit. See Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
Subsequent to the district court’s dismissal of Roberts’s
complaint, the Supreme Court clarified the scope of the Rooker-
Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
125 S. Ct. 1517 (2005):
The Rooker-Feldman doctrine . . . is confined to cases of
the kind from which the doctrine acquired its name: cases
brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the
district court proceedings commenced and inviting
district court review and rejection of those judgments.
Id. at 1521-22; see also Davani v. Va. Dep’t of Transp., 434 F.3d
712, 713 (2006) (“Exxon requires us to examine whether the state-
court loser who files suit in federal district court seeks redress
for an injury caused by the state-court decision itself. If he is
- 3 -
not challenging the state-court decision, the Rooker-Feldman
doctrine does not apply.”)
Roberts’s complaint alleges a constitutional injury
arising not expressly from the state court judgment itself, but
rather from MDHS’s post-judgment collection efforts. The district
court did not have the benefit of Exxon and Davani in its
assessment of the applicability of the Rooker-Feldman doctrine.
Moreover, assuming that the Rooker-Feldman doctrine no longer
precludes Roberts’s suit from going forward, the district court has
not had an opportunity to address either the merits of Robert’s
complaint, or the other defenses raised by MDHS. Because the
district court is in the best position to evaluate these matters in
the first instance, we vacate the district court’s order and remand
the case for further consideration.*
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
*
Our disposition should not be read as indicating any view
regarding the applicability of the Rooker-Feldman doctrine or the
other defenses asserted by MDHS, on the merits. We leave these
matters for plenary resolution by the district court, as that court
deems appropriate.
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548284/ | 9 B.R. 394 (1981)
In re INDEPENDENCE LAND TITLE CORPORATION OF ILLINOIS, Debtor.
Jay A. STEINBERG, Trustee in Bankruptcy, Petitioner,
v.
The NATIONAL BANK AND TRUST COMPANY OF SYCAMORE, Respondent.
No. 80 B 3675.
United States Bankruptcy Court, N.D. Illinois, E.D.
March 4, 1981.
*395 Jay A. Steinberg, Chicago, Ill., for trustee.
Minnihan, Smith & Brown, Sycamore, Ill., for Bank.
MEMORANDUM AND ORDER
ROBERT L. EISEN, Bankruptcy Judge.
This matter came to be heard on the trustee's application to avoid a lien on a motor vehicle. The National Bank and Trust Company of Sycamore contends the lien is valid and perfected while the trustee contends the lien is null and void as a preference. The court having researched the issues presented and being fully advised in the premises makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. In February 1980 the debtor assigned its interest in the car to Mr. Wade, President of the debtor corporation.
2. Mr. Wade, as President of the debtor, endorsed the back of the certificate of title, thereby assigning the car to himself individually. Mr. Wade took possession of the car but failed to send the certificate of title to the Secretary of State for the issuance of a new certificate of title.
3. On March 18, 1980 the debtor applied to the Bank for a loan so that the debtor could repurchase the car from Mr. Wade.
a. On March 18, 1980 the debtor and the Bank executed an installment note and a Motor Vehicle Security Agreement whereby the parties attempted to grant the Bank a security interest in the car.
b. On March 18, 1980 the debtor gave Mr. Wade the loan proceeds.
c. On March 18, 1980 Mr. Wade gave the Bank the certificate of title which showed the debtor as the owner and then showed the assignment of ownership from the debtor to Mr. Wade.
d. On March 18, 1980 there was no room on the back of the certificate of title for further assignments so the Bank, with Mr. Wade's cooperation, mailed the certificate of title to the Secretary of *396 State requesting a new certificate of title showing Mr. Wade as the car's owner.
4. On March 27, 1980 the debtor filed a petition under Chapter 11.
5. On or about April 24, 1980 the Bank received the new certificate of title showing Mr. Wade as the car's owner.
6. On or about May 15, 1980 Mr. Wade endorsed the new certificate of title thereby assigning the car to the debtor.
7. The Bank subsequently sent the certificate of title, as assigned, to the Secretary of State requesting a new certificate of title showing the debtor as the owner and the Bank as the lienholder.
8. On June 5, 1980 the Secretary of State issued a certificate of title indicating the debtor's and the Bank's respective interests in the car.
ISSUE
Does the transfer fall within an exception to the trustee's avoiding powers?
DISCUSSION
The Bank contends it has a valid and perfected security interest in the car. The trustee contends the transfer is voidable as a preference. The Bank does not deny that the transfer created a preference voidable under 11 U.S.C. § 547(b). The Bank, however, does contend that the transfer falls within an exception to the trustee's avoiding powers. The exceptions to the trustee's avoiding powers appear in 11 U.S.C. § 547(c) which states that:
The trustee may not avoid under this section a transfer
1. to the extent that such transfer was (a) intended by the debtor and creditor . . . to be a contemporaneous exchange for new value given to the debtor; and (b) in fact a substantially contemporaneous exchange;
* * * * * *
3. of a security interest in property acquired by the debtor (a) to the extent such security interest secures new value that was
* * * * * *
and (b) that is perfected before 10 days after such security interest attaches.
Section 547(c)(1) will be referred to as the "substantially contemporaneous exchange" exception and § 547(c)(3) will be referred to as the "enabling loan" exception. The Bank argues in the alternative that either the transfer comes within the "substantially contemporaneous exchange" exception or that it comes within the "enabling loan" exception.
The first issue considered is whether the creation of the security interest was "substantially contemporaneous" with the giving of the loan. The transfer in question is the giving of the security interest in exchange for the loan. 11 U.S.C. § 101(40). The transfer is made when the security interest is perfected. 11 U.S.C. § 547(e)(2). This court holds that the transfer was not perfected until subsequent to May 15, 1980 at the earliest. The Illinois Vehicle Code holds that a security interest in a car is perfected when the certificate of title is delivered to the Secretary of State with an application containing the name and address of the lienholder as well as the required fee. S.H.A., Ch. 95½, § 3-202(b). The debtor did not have rights in the car until May 15, 1980 so it was impossible for the Bank to perfect a security interest before that date. 11 U.S.C. § 547(e)(3). Contemporaneous is defined as "originating, arising or being formed or made at the same time . . ." Webster's Third International Dictionary, Unabridged (1961). The Bank submits no case authorities holding that a two-month gap between a loan and the perfection of a security interest constitutes a "substantially contemporaneous exchange." The court therefore finds that the exchange was not substantially contemporaneous and thus not within the exception to the trustee's avoiding power set forth in § 547(c)(1). The court cites In re Kelley, Bkrtcy., 3 B.R. 651; C.C.H. ¶ 67,688, p. 78,217 (E.D.Tenn.1980) and In re Poteet, Bkrtcy., 5 B.R. 631 (E.D.Tenn.1980) in support of the instant holding. As the Poteet court stated:
*397 Delayed perfection of the security interest thus resulted in a transfer avoidable by the trustee as preferential.
Id. at 636.
Alternatively, the Bank contends that the transfer is within the "enabling loan" exception of § 547(c)(3). The Bank contends that the security interest first attached on May 15, 1980 when the debtor acquired rights in the collateral S.H.A. c. 26, § 9-203. Then the Bank contends the security interest was perfected within 10 days of attachment. S.H.A. ch. 95½, § 3-202(b). Section 547(e) of the Bankruptcy Code determines when a transfer is made for the purposes of the preference section of the Code. The Code states that:
For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred.
11 U.S.C. § 547(e)(3). For the purposes of the preference section, the transfer was not made until May 15, 1980. Thus the transfer was a post-petition transaction. The loan was made March 18, 1980 and the Chapter 11 petition was filed March 27, 1980. The certificate of title showing the debtor as owner and the Bank as lienholder was not issued until June 5, 1980. The court holds that the transaction was not within the "enabling loan" exception to the trustee's avoiding powers, 11 U.S.C. § 547(c)(3), and as further support states that:
(a) . . . the trustee may avoid a transfer of property of the estate
(1) that occurs after the commencement of the case; and
* * * * * *
(2)(B) that is not authorized under this title or by the court.
11 U.S.C. § 549. The transfer occurred after the case was commenced and it was not authorized by the Code or the Court.
It is therefore concluded that the disputed transaction is not within either the "substantially contemporaneous exchange" or the "enabling loan" exceptions to the trustee's avoiding power. Furthermore, the transaction may be avoided pursuant to 11 U.S.C. § 549.
WHEREFORE, IT IS HEREBY ORDERED that the lien of the National Bank and Trust Company of Sycamore on the 1978 Dodge Magnum, Serial No. XS22K8R206107, owned by the debtor is null and void and that possession of the car is hereby awarded to the trustee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548292/ | 162 F.2d 872 (1947)
UNITED STATES
v.
A. H. FISCHER LUMBER CO.
SAME
v.
A. H. FISCHER CO., Inc., CHARLESTON, S. C.
Nos. 5602, 5603.
Circuit Court of Appeals, Fourth Circuit.
July 25, 1947.
*873 Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (Ben Scott Whaley, U. S. Atty., of Charleston, S. C., on the brief), for appellant.
Charles W. Waring, of Charleston, S. C. (Waring & Brockinton, of Charleston, S. C. on the brief), for appellees.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
These are appeals from orders dismissing two action instituted by the Administrator of the Office of Price Administration to recover damages for violation of the Emergency Price Control Act of 1942, 50 U.S. C.A.Appendix, § 901 et seq., and obtain injunctive relief against the A. H. Fischer Company, a corporation created under the laws of South Carolina and doing business in the City of Charleston in that state. Summons in each case was served by the Marshal upon an official of the A. H. Fischer Company; and in each case that company entered a special appearance and moved to dismiss on the ground that it was not properly named in the summons and complaint. In the first action, which was commenced on October 22, 1946 and in which defendant was named as A. H. Fischer Lumber Company, the court refused plaintiff leave to amend so as to strike out the word "Lumber" and on December 19, 1946 sustained the motion to dismiss. In January 1947 plaintiff filed another action against defendant, under the name of A. H. Fischer Company, Inc. The court refused plaintiff leave to amend by striking out the "Inc." and entered an order dismissing the action. Appeals were taken from both orders of dismissal.
We think that the court committed error in both cases. The defendant was engaged in some branch of the lumber or woodworking business, there was no other corporation in the locality with a similar name, and nobody was misled in the first case by including the word "Lumber" in the corporate name of the defendant in the summons and complaint. Process was served upon one of defendant's officers; and when its attorney came into court with a special appearance, neither he nor anyone else had any doubt that the defendant was the corporation intended to be named as defendant. In the second case, the use of the word "Inc." was merely descriptive of the defendant as being a corporation. Without amendment the process in both cases adequately named the defendant and was sufficient to bring it into court. A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, as is the case here, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. As said in 14 C.J. 325, "As a genral rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment citation, writ of certiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled." See, also, 18 C.J.S., Corporations § 172.
The corporation had the right to be accurately named in the process and pleadings of the court; and misnomer was properly raised by motion to dismiss under the new practice in lieu of the old plea in abatement. When the motion was made. however, plaintiff, upon his request, should *874 have been permitted to amend. What was involved was, at most, a mere misnomer that injured no one, and there is no reason why it should not have been corrected by amendment. The case is not one, as the judge below apparently thought, of an amendment which would bring the defendant into the case for the first time and might prejudice its right to rely on the statute of limitations.[*] The defendant had unquestionably been brought into the case, and in the absence of the motion to dismiss, would have been bound without amendment by any judgment that might have been rendered therein. The office of the requested amendment would merely have been to name the defendant properly. Rule 4(h) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c provides:
"Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued."
That amendments in furtherance of justice shall be freely allowed is the clear intendment of the rules, the provision of Rule 15(a) with regard to the amendment of pleadings being:
"Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." (Italics supplied).
This is but a codification of the modern rule recognized in practically every jurisdiction and well stated in 39 Am.Jur. 1002 as follows:
"Under modern practice, if the right party is before the court, although under a wrong name, an amendment to cure a misnomer of parties will be allowed. Under the practice statutes and rules of practice of the several states, where the proper party is before the court, although there under a wrong name, and, if the plaintiff, he is the party having the cause of action, and, if the defendant, he is the party the plaintiff intended to sue and did sue, and the court considers such defendant within its jurisdiction, an amendment of process and pleading will be allowed to change or correct the name of either plaintiff or defendant to cure the misnomer. Such amendments may be allowed notwithstanding the running of the statute of limitations between the time of commencing suit and the motion for amendment, provided there is no change in the cause of action originally stated. Such an amendment relates back to the institution of the original suit."
See also the comprehensive note in 124 A.L.R. 86 and cases there cited.
It is true that the amendment of process and pleadings is a matter resting in the discretion of the District Court; but the discretion thus vested is a sound discretion to be exercised, not arbitrarily, but in accordance with accepted legal principles, and is subject to review on appeal if not so exercised. See In re Haskell, 7 Cir., 73 F.2d 879. It is clear, however, that the denial of amendment was based, in the first case, not on an exercise of discretion but on the erroneous view that the judge had no discretion to permit the amendment but was required to deny it as a matter of law. In denying it, he said: "The defect in erroneously naming the defendant is one that I think goes to the basis of the suit and cannot be cured by mere amendment but must be cured by instituting a new action if the plaintiff be so advised." This was a holding that there was no discretion to permit amendment and was erroneous as matter of law. In the second case, if the "Inc." be regarded as descriptive rather than nominative, as we think it should, no *875 amendment was necessary; and it was error as matter of law to dismiss the case.
It is argued that appeal cannot be maintained from the first order of dismissal because of the action of plaintiff in instituting another suit on the same cause of action; but there is nothing in this point. It should be observed, in this connection, that the causes of action are not identical, and that the second action is less comprehensive than the first. In the first case, an injunction was asked with triple damages in an undetermined amount on account of transactions occurring between October 1, 1943 and May 31, 1946. In the second case, no injunction was asked but triple damages in the sum of $48,367.65 on account of transactions between February 1, 1946 and May 31, 1946. We know of no principle of law, however, which would deny to plaintiff the right to appeal from the dismissal of the first case merely because he had instituted another suit pending appeal to protect the rights of the public against the running of the statute of limitations if the appeal should not be successful. A subsequent action may, under some circumstances, be abated because of the pendency of a prior action in an appellate court (see 1 Am.Jur. 47-48); but certainly the institution of a subsequent action is no ground for dismissing an appeal in a prior one. No authority is cited which remotely sustains such a proposition and we know of none. The authorities cited as to abandonment of the right to appeal by acceptance of the provisions of an order sustaining a demurrer but permitting an amendment of pleading manifestly have no relevance.
The orders appealed from will be reversed in both cases and the cases will be remanded with direction to permit the plaintiff to amend the process and pleadings so as to describe correctly the defendant and with permission to plaintiff to dismiss whichever of the actions he desires to dismiss. Since the plaintiff can obtain in the first action all the relief that he asks in both, one or the other of the actions should be dismissed. In order that there may be no further unnecessary delay in this matter, the mandate will issue forthwith.
Reversed and remanded.
NOTES
[*] The judge relied upon Sweeney v. Greenwood Index-Journal Co., D.C., 37 F. Supp. 484; but that case is not binding authority and we do not regard it as according with the liberal rule of modern practise. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1019524/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6377
RONNIE MITCHELL,
Petitioner - Appellant,
versus
COLIE RUSHTON, Warden; HENRY MCMASTER,
Attorney General,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Cameron McGowan Currie, District
Judge. (6:05-cv-01637-CMC)
Submitted: May 18, 2006 Decided: June 1, 2006
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Ronnie Mitchell, Appellant Pro Se. William Edgar Salter, III,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronnie Mitchell, a state prisoner, seeks to appeal the
district court’s order accepting the recommendation of the
magistrate judge and denying relief on his petition filed under 28
U.S.C. § 2254 (2000), and dismissing it as untimely, as well as the
district court’s order denying his Fed. R. Civ. P. 59(e) motion for
reconsideration of that order. The orders are not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here, a
district court dismisses a § 2254 petition solely on procedural
grounds, a certificate of appealability will not issue unless the
petitioner can demonstrate both “(1) ‘that jurists of reason would
find it debatable whether the petition states a valid claim of the
denial of a constitutional right’ and (2) ‘that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir.
2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We
have independently reviewed the record and conclude that Mitchell
has not made the requisite showing. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). Accordingly, we deny a certificate of
appealability, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
- 2 -
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1019532/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EARL SYLVESTER TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-99-119-RLW; CA-05-723-RLW)
Submitted: May 18, 2006 Decided: May 31, 2006
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Earl Sylvester Turner, Appellant Pro Se. Richard Barton Campbell,
Sara Elizabeth Flannery, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Earl Sylvester Turner seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b) motion as a
successive 28 U.S.C. § 2255 (2000) motion, and dismissing it on
that basis. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Turner has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Turner’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to
file a successive § 2255 motion, a prisoner must assert claims
- 2 -
based on either: (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) newly discovered evidence, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Turner’s claims do not satisfy either of these criteria.
Therefore, we deny authorization to file a successive § 2255
motion.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 3 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589775/ | 270 S.W.3d 831 (2008)
Terry BRENNAN and Loretta Brennan, Appellants,
v.
Layne WADLOW, Appellee.
No. 06-1406.
Supreme Court of Arkansas.
January 10, 2008.
*832 James & House, P.A., by Matthew R. House, Little Rock, for appellants.
Laser Law Firm, by Kevin Staten and Brian A. Brown, Little Rock, for appellee.
JIM HANNAH, Chief Justice.
Terry and Loretta Brennan appeal a decision of the Garland County Circuit Court dismissing their complaint with prejudice. They assert that the circuit court erred in finding that they failed to serve appellee Layne Wadlow in compliance with Ark. R. Civ. P. 4 when they served his father at his father's place of business. More specifically, the Brennans allege that service was effective because Layne listed the address of his father's place of business as his own address on his driver's license. Further, the Brennans allege that the circuit court erred in finding that the statute of limitations had run and dismissing the complaint with prejudice. They argue that in putting the address of his father's place of business on his driver's license, Layne made misrepresentations and committed fraud that tolled the statute of limitations; therefore, they allege that Layne was responsible for their failure to serve him at his dwelling house or usual place of abode as required by Ark. R. Civ. P.4(d)(1). We disagree and affirm. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(5).
On the evening of February 21, 2003, Layne was driving in Hot Springs when he struck pedestrian Terry Brennan. Layne provided police his driver's license, and the accident report reflects his address as that of his father Casey Wadlow's business. Layne indicated in a statement under oath that he gave police his driver's license and provided the address where he was living in Hot Springs at the time. He stated further that he did not receive mail where *833 he lived and instead used the address of his father's business as his mailing address. He indicated that the business had no living quarters and that he had never lived there.
The complaint was filed February 6, 2006. Under Ark.Code Ann. § 16-56-105 (Repl.2005), an action for personal injury must be brought within three years after the cause of action accrues. See Shelter Mut. Ins. Co. v. Nash, 357 Ark. 581, 184 S.W.3d 425 (2004). The complaint was thus timely filed. Under Ark. R. Civ. P. 4(i), the Brennans had 120 days within which to serve the summons issued on February 6, 2006. Therefore, the Brennans had until June 26, 2006 to serve the summons and complaint.
On April 25, 2006, counsel for the Brennans sent a letter to process server Tommy Wright indicating that an enclosed summons and complaint were to be served on Layne Wadlow. The letter stated, "The information contained in the police report reflects that the Defendant Layne Wadlow lived at 135 Stonewall, Hot Springs, Arkansas at the time of the accident in February 2003." Wright was further provided with Layne's birth date, Social Security number, a description of the car he was driving at the time of the accident, the license plate number, the name of the owner, and a telephone number for Layne listed on the police report. Wright served the summons and complaint on Layne's father Casey at Casey's place of business.
Casey received the summons and complaint and told Wright he would pass it on. Layne stated that he was aware that his father was served with a summons and complaint on April 28, 2006. He indicated that his father gave him a copy, and that he in turn gave the copy to his mother under the expectation that she would handle the matter. At the time of the accident, Layne was sixteen years old, driving his mother's car, and was insured under her policy. In an affidavit attached to the motion to dismiss, Layne asserted that his father was never authorized to act as his agent to receive service of process and that no person had ever been appointed as his guardian.
On June 26, 2006, 147 days after the complaint was filed, and more than three years after the accident, Layne filed a motion to dismiss under Ark. R. Civ. P. 12, asserting that service failed to meet the requirements of Ark. R. Civ. P. 4, and that the complaint had to be dismissed with prejudice because the statute of limitations on the Brennans' action had run. The Brennans could have brought a motion to extend time to serve the summons under Rule 4(i); however, that motion had to be brought within the 120 day period, and no such motion was filed. The circuit court dismissed the complaint with prejudice.
The Brennans argue on appeal that the circuit court erred in finding that service failed to comply with Rule 4. They assert that Layne, as an individual, was served at his dwelling house or usual place of abode as required by Rule 4(d)(1) because they served Layne at the address he listed as his address on his driver's license. They contend service was effective because Layne's father was served at the place that Layne represented to be his residence. They state that Layne told police at the time of his accident that his residence was 135 Stonewall. Layne stated that he told police the address where he was living at the time.
With respect to personal service, Rule 4 states in pertinent part as follows:
(d) Personal Service Inside the State. A copy of the summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service *834 shall be made upon any person designated by statute to receive service or as follows:
(1) Upon an individual, other than an infant by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.
Id. (emphasis added). The process server left a copy of the complaint at Layne's father's business with his father. This was not Layne's dwelling house or usual place of abode, and his father was not residing there.
Strict compliance with Rule 4 is required. In Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004), this court stated as follows:
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001) (citing Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982)). Our case law is equally well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Id.; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (citing Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d [531] (1989) and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). This court has held that the same reasoning applies to service requirements imposed by court rules. Carruth v. Design Interiors, Inc., supra; Wilburn v. Keenan Companies, Inc., supra. More particularly, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact....
Nucor Corp., 358 Ark. at 119, 186 S.W.3d at 736 (quoting Smith v. Sidney Moncrief Pontiac, Buick, GMC, Co., 353 Ark. 701, 709, 120 S.W.3d 525, 530 (2003)). The Brennans attempted service under Rule 4(d)(1). They left a copy of the summons and complaint with Layne's father at his father's place of business; however, Rule 4(d)(1) required that the copy of the summons and complaint be left with a person who resided at Layne's dwelling house or usual place of abode. Layne's father's place of business was not Layne's dwelling house or usual place of abode, and it if were, his father did not reside there. The Brennans did not comply with Rule 4. The complaint was properly dismissed for failure to comply with Rule 4. See Ark. R. Civ. P. 4(i).
However, the Brennans also argue that even if they failed to meet the requirements of Rule 4, dismissal of their complaint with prejudice was error because Layne's fraud and misrepresentations tolled the statute of limitations. "For fraud to toll the statute of limitations it must be concealed." Bomar v. Moser, 369 Ark. 123, 131, 251 S.W.3d 234, 241 (2007). The Brennans offer no evidence that Layne committed fraud; thus, there could be no fraud to conceal. To prove fraud, a party must show (1) a false representation of material fact, (2) a knowledge that the representation is false or that there is insufficient evidence upon which to make the representation, (3) an intent to induce action or inaction in reliance upon the representation, (4) justifiable reliance on the representation, and (5) damage suffered as a result of the reliance. Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 *835 (2006). In asserting that Layne committed fraud, the Brennans argue that they and their process server were entitled to rely on Layne's representations on his license that he lived at 135 Stonewall. They allege that Layne's representations on his driver's license "proximately" caused the service related problems. As support for their assertion, they cite us to two statutes on driver's licenses and argue that failure to comply with the statutes constitutes misrepresentation and fraud. Arkansas Code Annotated section 27-16-801(a)(2)(B)(i) (Supp.2005) (Licenses generally-Validity periods Contents-Fees-Disposition of moneys) provides that "[e]ach license shall include ... the name, residence address, date of birth, and a brief description of the licensee." Further, Ark.Code Ann. § 27-16-506 (Repl. 2004) (Notification of change of address or name) provides that a holder of a driver's license "shall" notify the Department within ten days. Nothing in these statutes provides that failure to comply constitutes fraud or misrepresentation. The Brennans cite to no convincing authority for their position that they were defrauded by Layne when he put the address of his father's business on his license. There was no relationship existent between Layne and the Brennans at the time Layne got his license, so he could not have made a material misrepresentation to them. Even if there were such proof, there is no proof that Layne knew he was falsely representing where he lived when he listed his father's business address. Layne listed his father's business address because he received mail there. Further, there is no evidence of intent and no evidence of reliance by the Brennans to their detriment. There could not be. At the time Layne put his father's business on his driver's license, the accident had not occurred, and he did not even know the Brennans. The failure to provide convincing authority precludes review on appeal. See Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006).[1]
The Brennans' attempt to serve Layne by serving his father at his father's place of business did not comply with Rule 4(d)(1). Under Rule 4(d)(1) they failed to serve Layne within 120 days of the date the complaint was filed and did not file a motion for an extension of time within which to serve Layne. See Rule 4(I). Based on the failure to serve Layne within the time allowed under Rule 4, the complaint had to be dismissed without prejudice. Id. However, at the time of dismissal, the statute of limitations had run. Under Ark.Code Ann. § 16-56-105, suit had to be brought within three years. Three years ran in February 2006, and the dismissal was granted August 17, 2006. There was no fraud to toll the statute of limitations. The statute of limitations had run, and the dismissal with prejudice was proper. Affirmed.
NOTES
[1] The Brennans also argue fraudulent concealment. Fraudulent concealment consists of some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed or perpetrated in a way that it conceals itself. Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996). There is no evidence that Layne did anything to keep the Brennans' cause of action concealed. They simply failed to timely serve him as required under Rule 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589383/ | 972 So.2d 181 (2008)
COLLINS
v.
STATE
No. 2D07-2018.
District Court of Appeal of Florida, Second District.
January 8, 2008.
Decision without published opinion. App. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645244/ | 40 So.3d 844 (2010)
Antonio PEREZ, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D10-66.
District Court of Appeal of Florida, Third District.
July 14, 2010.
Antonio Perez, in proper person.
Bill McCollum, Attorney General, for appellee.
Before GERSTEN, SHEPHERD, and LAGOA, JJ.
PER CURIAM.
Affirmed. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding issues that could have been raised on direct appeal are not cognizable through collateral attack). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645247/ | 994 So.2d 1104 (2008)
GARWOOD
v.
THE FLORIDA BAR.
No. SC08-1902.
Supreme Court of Florida.
October 10, 2008.
Decision without published opinion. Mand.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586353/ | 162 P.3d 988 (2007)
343 Or. 115
DOREY
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION.
No. S54838.
Supreme Court of Oregon.
June 19, 2007.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/532972/ | 890 F.2d 1251
28 Soc.Sec.Rep.Ser. 21, Unempl.Ins.Rep. CCH 15223AFrancisco PEREZ TORRES, Plaintiff, Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 89-1116.
United States Court of Appeals,First Circuit.
Submitted June 9, 1989.Decided Sept. 15, 1989.
Ivan O. Gonzalez Cruz, Juan A. Hernandez Rivera, Bayamon, P.R., Angel L. Cintron Carrasquillo, and William Dominguez Torres, Caguas, P.R., on brief for plaintiff, appellant.
Daniel F. Lopez Romo, U.S. Atty., Jose F. Blanco, Asst. U.S. Atty., Hato Rey, P.R., and Robert M. Peckrill, Asst. Regional Counsel, Dept. of Health & Human Services, on brief for defendant, appellee.
Before BOWNES, TORRUELLA, and SELYA, Circuit Judges.
PER CURIAM.
1
This is an appeal from the denial of social security disability benefits. The district court found that substantial evidence supported the Secretary's decision, at step five of the sequential evaluation process, that the claimant, Francisco Perez, retained the functional capacity to perform the full range of sedentary work. We affirm.
2
Perez applied for benefits in March 1986 alleging a disabling leg condition and arthritis. In subsequent submissions, Perez also alleged acute lower back pain and an emotional condition. At the July 1987 hearing Perez testified that he had worked as a salesman in the men's clothing department of Sears, Roebuck and Co. for sixteen years until December 1985. Earlier problems with the nerves and tendons of both feet had necessitated foot surgery in 1984. After about seven months of recuperation and therapy, he had returned to Sears for another year before stopping work due to foot pain and leg cramps which prevented him from walking around and standing. He also complained that he could no longer bend and carry, lift or move the merchandise for display. He described his difficulty in walking, the inability to walk or stand for long periods, sitting for long periods was also compromised due to back and neck pain from an automobile accident injury suffered after the operation on his feet. Perez stated that medication relieved but did not eliminate the pain caused by both conditions.
3
After leaving his job, Perez had a second operation on his left foot in January 1986. In August 1986 he began seeing a psychiatrist, Dr. Rivera Polanco, on a monthly basis for insecurity, nervousness, violent reactiveness and problems at home. His daily activities included watching television and reading the newspapers, limited driving due to leg numbness, and rare social contacts except for seeing cock fights. Perez has a twelfth-grade education and was 46 years old at the time of the hearing.
4
The medical evidence submitted by Perez falls into two categories: hospitals and State Insurance Fund (SIF) records for the two-year period from May 1984 to April 1986, and reports from four treating and evaluating physicians.
5
Hospital records document the two foot surgeries in 1984 and 1986. His admitting diagnosis in 1984 was bilateral tarsal tunnel syndrome and hypertension. Upon continued complaints of left foot pain, Perez was admitted for treatment of hallux valgus and underwent bunion and bunionette excision in January 1986. His prognosis was good upon discharge. These records also show an emergency room visit in May 1985 after a motor vehicle accident. A cervical spine x-ray performed at that time revealed degenerative spondylosis at C4 and C5 vertebrae but no fracture. An April 1986 lumbar spine x-ray was read to show degenerative joint disease. The last hospital report of April 1986 notes claimant's complaints of left foot and low back pain for which medication was prescribed. Concurrently, Perez was seen at the SIF for a six-month period from October 1985 to April 1986 and, according to his statements, thereafter for the purpose of receiving medication.
6
Dr. Mendez, a rheumatologist, submitted an August 1986 evaluation which indicated that he had seen Perez once in April 1984 and had referred him for possible foot surgery at that time. Perez' chief complaints in 1986 were severe pain in both legs and feet which persisted despite rest, physical therapy and medication. At the examination, Perez walked with a stiff, uncertain gait. His mental status was found to be alert, of normal intellect, well-orientated, able to concentrate and with adequate recent and remote memory. Based upon an April 1986 x-ray of the lumbar spine, an electromyograph (E.M.G.) and nerve conduction studies of the lower extremities, Mendez' final diagnosis was: 1) radiculopathy, left leg, S1 by E.M.G., 2) degenerative joint disease of the lumbar spine and 3) status post tarsal tunnel syndrome. Regarding treatment for the back condition, Mendez' records that Perez has been advised to sleep on a firm bed, to promote self-care and to undertake physical therapy. Without comment as to the efficacy of any modality, Mendez also notes that the claimant had been treated with muscle relaxants, analgesics and tranquilizers. Mendez' assessment of Perez' functional capacity was that he could not stand, walk or sit for long periods of time and was unable to carry even small loads. The prognosis was poor.
7
In June 1986 Dr. Llompart evaluated Perez who complained of low back pain, pain in both feet and weakness in both ankles. Dr. Llompart's orthopedic exam records that Perez walked with a mild degree of low back protection and showed some midline back tenderness, but was otherwise essentially normal. X-rays taken of the lumbar spine, right ankle and left foot showed slight spurring. Dr. Llompart assessed Perez' present condition: he should avoid activities that require more than minimal standing or walking; he should not carry or lift more than mild weights; he should climb stairs or bend his back only occasionally.
8
In September 1987 the claimant was evaluated by Dr. Fontanez, a neurosurgeon. Perez' chief complaints were pain in both feet, especially the left lower extremity, lumbar pain and difficulty in waist movements. Dr. Fontanez' exam noted lumbar muscle spasm and tenderness to palpitation, reduced reflex and muscle tone of the left leg and weak hand grasps. In summary, Fontanez diagnosed: myositis, radiculopathy, lumbar spondyloarthritis, status post tarsal tunnel release surgery and chronic benign pain. He assessed these conditions to impose a permanent disability to engage in any type of gainful activity.
9
In August 1986 Perez began seeing Dr. Rivera, a psychiatrist, who completed two mental impairment evidence reports indicating fifteen visits through July 1987. Perez' chief complaints were feeling anxious, uneasy and unable to sleep well. Dr. Rivera noted an inability to relax, anxiety, recurrent suicidal ideation, a depressed affect, some disorientation, and diminished memory, intellectual function judgment, insight and self-esteem. The diagnosis was severe dysthymic disorder and medication was prescribed. Dr. Rivera noted, however, that Perez did not tolerate medication well, was intensely preoccupied with staying invalid in his two legs and should continue to put muscle tone on both legs. Regarding his ability to function, Rivera found that Perez could not adapt to work stress or concentrate adequately to perform productive labor, that he had difficulty with interpersonal relations and often became irritable, hostile and tearful.
10
The agency sent Perez to three consulting physicians. Dr. Lugo performed a psychiatric evaluation in October 1986 and offered a clinical diagnosis of dysthymic disorder--moderate depression, for which Perez had received medication with no reported secondary effects. The mental examination revealed logical, coherent and relevant thought content, good contact with reality, adequate mental process, but slight to moderate psychomotor retardation. Perez was found to be oriented in three spheres, with good memory and the ability to concentrate without distraction. His insight, judgment and intellectual functions were intact. Dr. Lugo noted, however, that Perez' physical condition, to the extent that it worsened, complicated the prognosis which he characterized as very dismal. He recommended neurological and vascular examinations.
11
Perez was then seen by an agency consulting neurologist, Dr. Garayalde-Cotroneo. Perez' chief complaint was back pain with continuing foot pain, difficulty walking and bending forward. Perez reported taking no medications. The neurologist noted that Perez walked slowly and with hesitation. The examination indicated difficulty with toe and heel walking, diminished sensation in both legs, and some limitation in bending forward, but was otherwise normal, including no indication of back muscle spasm. X-rays showed moderately advanced spondyloathritic changes along the cervical spine and similar but minimal changes along the lumbar spine. The diagnostic impression was: status post tarsal tunnel release surgery with no objective evidence of active radiculopathy, myelopathy or myositis. An orthopedic exam was advised.
12
Finally, Perez was seen by Dr. Ulloa who performed another consulting neurological evaluation in December 1986. Perez complained of daily mild cervical and lower back pain which was relieved by medication. The exam revealed no neck or muscle spasm. Nerve and motor systems were normal. A diminished sensation of the left leg was found as well as a limping gait. Perez' mental status was unremarkable except for the notation of multiple somatic complaints. Dr. Ulloa's impression was arthritis (gout by history), bilateral tarsal tunnel operation, and no evidence of active radiculopathy.
13
The Secretary also submitted medical opinions from non-examining agency physicians. A December 1986 report compared the treating and consulting psychiatrist evaluations and, after completing a psychiatric review technique form (PRTF), found the claimant's mental condition to be not severe. Similarly, in January 1987 a non-examining agency neurologist assessed Perez' neurologic condition as slight.
14
The ALJ evaluated the evidence and found that the:
15
(c)laimant's original and main problem is musculoskeletal, namely, status post bilateral tarsal tunnel syndrome, degenerative joint disease of lumbar spine and left S1 radiculopathy. These conditions, when combined, are significant and impose limitations in claimant's capacity to do basic work related activity such as performing more than sedentary activities. Claimant has also a recent emotional component of slight nature, imposing minimal limitations in claimant's capacity to do sedentary activities.
16
App. at 6. The ALJ considered Perez' complaints of severe pain credible only to the extent of precluding prolonged walking and standing, and discounted, by implication, the back pain complaints. The mental complaints were found not credible to the extent claimed in light of all the medical evidence. Id. at 8. The ALJ's PRTF rated the mental condition as non-severe. Taking into account the exertional limitation, the ALJ found that Perez could do the full-range of sedentary work or a limited range of light work. Without further discussing light work, the ALJ made a finding that Perez' capacity for the full-range of sedentary work had not been significantly compromised by his additional nonexertional limitations. Id. at 9. Using the Medical Vocational Guidelines of Appendix 2 to Subpart P of Part 404, 20 C.F.R., (the grid), as a framework, the claimant was found not disabled.
17
On appeal, the claimant agrees with the conclusion that he cannot return to his prior job and can perform only a sedentary level of exertion. Perez disagrees that his mental impairment is mild. He contends that his mental condition, taken together with his pain, significantly compromises his ability to perform the full range of sedentary work and that a vocational expert must testify regarding what jobs, if any, the claimant can do.
18
The government argues that the ALJ properly relied upon the rules of the grid (noting that although the ALJ cited the wrong rule, the correct rule would also direct a finding of non-disability), and that the evidence supported the finding that the claimant's nonexertional impairments were not significant enough to diminish Perez' ability to perform a broad range of unskilled sedentary work. We agree.
19
With respect to Perez' pain complaints caused by the foot and back conditions, we note that, aside from the hospitalizations and related records of surgery and recuperation, Perez saw Drs. Mendez, Llompart, and Fontanez four times between April 1984 and September 1986 primarily for evaluation rather than treatment. At the hearing, ten months later in July 1987, Perez testified that he was then being treated by Dr. Rivera, a psychiatrist, and that he had received physiotherapy from Dr. Flores Vilar in the past year. However, the only report submitted by that doctor was an April 1986 electromyograph examination of the lower extremities. While Perez also testified that his medication helped the pain, a consulting neurologist in November 1986 noted the claimant reported that he was taking no medication at that time.
20
Perez' treating psychiatrist found a severe dysthymic disorder. The agency consulting psychiatrist diagnosed dysthymic disorder-moderate depression. Both doctors related the mental condition to the claimant's underlying physical complaints. Dr. Rivera, the treating psychiatrist, found Perez to be absorbed with remaining an invalid and that he needed to continue to put on muscle tone in both legs. According to the American Psychiatric Association, a dysthymic disorder is a chronic mood disturbance involving either a depressed state or a loss of interest or pleasure in almost all usual activities and pastimes. DSM-III, Sec. 300.40, 220-3 (3d. ed. 1980). It is a less severe condition than a major depressive episode and occupational impairment is usually mild to moderate because of the chronic, rather than severe nature of the syndrome. Id. at 221. While the mental impairment component here presents a closer question, based upon all the evidence of mental impairment, including positive, albeit brief mental status assessments by treating physician Mendez and consultant Ulloa, we find that substantial evidence supports the conclusion that Perez' mental condition was mild.
21
The claimant argues that the ALJ was prejudiced with regard to the mental impairment claim because of unfair comments made in the decision regarding the timing of some of Perez' filings and medical consultations. The ALJ stated that the claimant had exaggerated his symptoms and that his treating psychiatrist, out of kindness, rendered the opinion he did. Although the ALJ misread the record in stating that the claimant had never alleged a mental condition--the claimant alleged an emotional condition in August 1986, and again in his hearing request in February 1987,--we have examined the entire record and find the error harmless.
22
The claimant sought no regular treatment for his two allegedly painful conditions, and he submitted no medical evidence of treatment for his back condition. 20 C.F.R. Sec. 404.1513. On this record the ALJ was entitled to discount the severity of the pain complaints and conclude that the pain Perez experienced, which was amenable to medication, and his mild mental condition did not significantly diminish his ability to perform most jobs in the sedentary range. The use of the grid in this case was proper, Borrero Lebron v. Secretary of Health & Human Services, 747 F.2d 818, 820 (1st Cir.1984), and the AlJ was not required to call upon a vocational expert. Gray v. Heckler, 760 F.2d 369, 372 n. 4 (1st Cir.1985); see also, Torres v. Secretary of Health & Human Services, 668 F.2d 67, 69 (1st Cir.1981).
23
The record reasonably and adequately supports the Secretary's conclusion that the claimant's nonexertional impairments were slight and that his ability to perform the full range of sedentary work was not seriously affected.
24
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1033361/ | Case: 12-30736 Document: 00512301401 Page: 1 Date Filed: 07/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2013
No. 12-30736 Lyle W. Cayce
Clerk
CANTU SERVICES, INCORPORATED,
Plaintiff - Appellee
v.
RENEE ELLENDER ROBERIE; CURT EYSINK;
KEVIN MONK; JOSEPH BURTON;
JANELL BOSARGE; MARK S. MARTIN,
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:12-CV-1292
Before JONES and CLEMENT, Circuit Judges, and KAZEN*, District Judge.
EDITH H. JONES, Circuit Judge:**
This case arises from allegations by Cantu Services, Inc. (“Cantu”) that
Renee Roberie, Curt Eysink, Kevin Monk, Joseph Burton, Janell Bosarge, and
Mark Martin (collectively, the “State Officials”); the Louisiana Workforce
Commission (the “Commission”); and Melvin Lee Frazier violated Cantu’s rights
*
District Judge of the Southern District of Texas, sitting by designation.
**
Pursuant to 5TH CIR. R. 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.
R. 47.5.4.
Case: 12-30736 Document: 00512301401 Page: 2 Date Filed: 07/09/2013
No. 12-30736
regarding a contract renewal under the Randolph-Sheppard Act, 20 U.S.C.
§§ 107–107(e) (2006) (“Randolph-Sheppard”). Cantu argues that the State
Officials, acting in their official capacities, violated its constitutional rights to
due process and equal protection. The State Officials filed a motion to dismiss
claiming immunity under the Eleventh Amendment, the district court denied
their motion, and the State Officials appealed. For the following reasons, we
REVERSE and REMAND with instructions to dismiss the official-capacity
claims of the State Officials without prejudice under Rule 12(b)(1).
BACKGROUND
This case concerns the award of a food service contract at Fort Polk in
Leesville, Louisiana under Randolph-Sheppard. Randolph-Sheppard was
created by Congress to provide employment and broader economic opportunities
for blind individuals by directing the United States Department of Education to
designate a State Licensing Agency (“SLA”) in each state. The SLAs issue
licenses to blind individuals for the operation of vending facilities on federal
property. Blind individuals are given priority in vendor selection, and a food
service company frequently serves as a “teaming partner” to assist the licensed
blind vendor for large, complex contracts such as that for Fort Polk. In
Louisiana, the SLA is the Commission.
Cantu served as teaming partner for blind vendor Eugene Breaud for the
Fort Polk food service contract from 2001 until Breaud’s death in early 2011.
Cantu fulfilled the contractual obligations on the behalf of the Commission, first
without a blind vendor and later with a temporary licensed blind vendor. In
anticipation of a new, full contract, the Commission issued a bid announcement
stating that it would assist the new licensed blind vendor in interviewing and
selecting the teaming partner for the new contract. The Commission selected
Frazier as the new licensed blind vendor in August 2011. The Commission
invited three potential teaming partners, including Cantu and its competitor
2
Case: 12-30736 Document: 00512301401 Page: 3 Date Filed: 07/09/2013
No. 12-30736
Blackstone Consulting, Inc. (“Blackstone”), to give presentations to Frazier and
the Commission.
Cantu alleges that Frazier indicated he had selected it as his teaming
partner.1 The parties agree that the choice of teaming partner was ultimately
Frazier’s to make, but the State Officials insist that Frazier did not have the
authority to select a teaming partner without the Commission’s assistance and
approval. Frazier ultimately selected Blackstone. Cantu sued and successfully
sought a temporary restraining order. Frazier and the State Officials were not
allowed to proceed with the contract until the district court dissolved its TRO
and denied Cantu’s motion for a preliminary injunction.
The United States Government has since entered into the long-term food
service contract with Frazier, using Blackstone as the teaming partner. Cantu
has appealed.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction to consider an interlocutory appeal from denial
of a motion to dismiss on the basis of Eleventh Amendment immunity. Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142,
113 S. Ct. 684, 687 (1993); Earles v. State Bd. of Certified Pub. Accountants,
139 F.3d 1033, 1036 (5th Cir. 1998). We review a district court’s ruling on a
motion to dismiss de novo. Jackson v. City of Beaumont Police Dep’t, 958 F.2d
616, 618 (5th Cir. 1992) (citation omitted). We view “the facts as pled in the
light most favorable to the nonmovant.” Jebaco, Inc. v. Harrah’s Operating Co.,
587 F.3d 314, 318 (5th Cir. 2009) (citation omitted). A complaint must provide
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). The
complaint must allege “more than labels and conclusions.” Id. at 555.
1
This allegation is central to Cantu’s breach of contract claims against Frazier, which
are not before us on this appeal.
3
Case: 12-30736 Document: 00512301401 Page: 4 Date Filed: 07/09/2013
No. 12-30736
Cantu asks this court to declare the bidding process unfair and void for
violating its equal protection and due process rights, to enjoin the enforcement
of the new contract, and thus to require the Commission to hold a new bidding
process.
DISCUSSION
The Eleventh Amendment “generally precludes actions against state
officers in their official capacities.” McCarthy ex rel. Travis v. Hawkins, 381 F.3d
407, 412 (5th Cir. 2004). The Supreme Court’s decision in Ex parte Young
created an exception for claims for prospective relief. 209 U.S. 123, 28 S. Ct. 441
(1908). The Ex parte Young doctrine “ensures that state officials do not employ
the Eleventh Amendment as a means of avoiding compliance with federal law.”
Puerto Rico Aqueduct, 113 S. Ct. at 688. For Ex parte Young to apply, the “suit
must be brought against individual persons in their official capacities as agents
of the state and the relief sought must be declaratory or injunctive in nature and
prospective in effect.” Saltz v. Tenn. Dep’t of Emp’t Sec., 976 F.2d 966, 968 (5th
Cir. 1992).
[Ex parte] Young has been focused on cases in which a violation of
federal law by a state official is ongoing as opposed to cases in which
federal law has been violated at one time or over a period of time in
the past, as well as on cases in which the relief against the state
official directly ends the violation of federal law as opposed to cases
in which that relief is intended indirectly to encourage compliance
with federal law through deterrence or directly to meet third-party
interests such as compensation. As we have noted: “Remedies
designed to end a continuing violation of federal law are necessary
to vindicate the federal interest in assuring the supremacy of that
law. But compensatory or deterrence interests are insufficient to
overcome the dictates of the Eleventh Amendment.”
Relief that in essence serves to compensate a party injured in the
past by an action of a state official in his official capacity that was
illegal under federal law is barred even when the state official is the
named defendant. This is true if the relief is expressly denominated
4
Case: 12-30736 Document: 00512301401 Page: 5 Date Filed: 07/09/2013
No. 12-30736
as damages. It is also true if the relief is tantamount to an award
of damages for a past violation of federal law, even though styled as
something else. On the other hand, relief that serves directly to
bring an end to a present violation of federal law is not barred by
the Eleventh Amendment even though accompanied by a
substantial ancillary effect on the state treasury.
Papasan v. Allain, 478 U.S. 265, 277–78, 106 S. Ct. 2932, 2941 (1986).
The Supreme Court recently explained more succinctly that to avoid an
Eleventh Amendment bar by means of Ex parte Young, “a court need only
conduct a straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.” Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___, 131 S. Ct.
1632, 1639 (2011) (quoting Verizon Md. Inc. v. Pub. Svc. Comm’n., 535 U.S. 635,
645, 122 S. Ct. 1753, 1760 (2002) (internal citation and quotation marks
omitted)).
Cantu’s amended complaint seeks a judgment “providing injunctive and
other equitable relief against [the State Officials], including but not limited to
an injunction prohibiting Defendants’ preparation for any contract changes and
prohibiting Defendants from proceeding with future food service contract[s]
without Cantu as the teaming partner.” Cantu’s complaint, on its face, seeks
prospective relief as required under Ex parte Young. See In re Tejas Testing
Tech. One, No. 96-50830, 1998 WL 414018, at *4 (5th Cir. June 26, 1998)
(unpublished) (holding claims “at least on their face” were for prospective relief
even where “whether [the] claims [were] truly for prospective declaratory or
injunctive relief [was] uncertain”).
Despite its facial pleading, the question remains whether Cantu alleged
an ongoing federal law violation. Cantu must establish that it has a
constitutionally protected interest that was continuing to be infringed by the
State officials. A vendor would not normally have a liberty or property interest
5
Case: 12-30736 Document: 00512301401 Page: 6 Date Filed: 07/09/2013
No. 12-30736
in the renewal of its contract. See Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 573-78, 92 S. Ct. 2701, 2707-10 (1972) (holding untenured
professor had no liberty or property interest in renewal of his employment
contract). But rather than argue that its contract was improperly terminated,
or that it was improperly not allowed to bid, Cantu argues that it had a
constitutionally protected interest in a fair bidding process for the new contract.
The process was unfair, according to Cantu, because the State Officials
interfered with its agreement with Frazier and forced Blackstone on Frazier
when Blackstone surreptitiously offered a sweet deal to the Commission. We
may assume arguendo that this constitutes a sufficient pleading of a federal law
violation.
Cantu is also required to show, however, that the allegedly
unconstitutional bidding process was not a “one-time, past event” but an ongoing
violation. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 510 (6th Cir. 2008).
Cantu relies on this court’s decision in Nelson v. University of Texas at Dallas,
535 F.3d 318, 323 (5th Cir. 2008), and contends that the harm was ongoing for
the purposes of Ex parte Young. In Nelson we noted the validity of arguments
that employment termination is a discrete, not ongoing, act but felt bound by our
decision in Warnock v. Pecos County, Texas holding that a request for
reinstatement of employment was cognizable under Ex parte Young. Nelson,
535 F.3d at 323–24 (citing Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th
Cir. 1996)). The special considerations surrounding public employment, and the
holding in Warnock, are not binding in this case concerning the different
situation of an award process for a public contract. The award process
terminated with the issuance of a new contract. Moreover, the “right” to be a
teaming partner did not confer on Cantu the right to enter into the Fort Polk
contract. Consequently, there is no ongoing violation of law remediable by
prospective relief under Ex parte Young. Cantu is unable to point to any
6
Case: 12-30736 Document: 00512301401 Page: 7 Date Filed: 07/09/2013
No. 12-30736
“disappointed bidder” cases extending the holding of Nelson. We will not so
extend Ex parte Young here.
CONCLUSION
For these reasons, we REVERSE and REMAND with instructions for the
district court to dismiss the official-capacity2 claims without prejudice under
Federal Rules of Civil Procedure 12(b)(1).3
2
Because the district court has not yet ruled on Cantu’s claims against the State
Officials in their personal capacities, those individual-capacity claims are not before us in this
appeal.
3
Generally, this court has treated dismissals based on state sovereign immunity as
jurisdictional under Fed. Rule Civ. Proc. 12(b)(1) See, e.g. Warnock, 88 F.3d at 343. Like the
Supreme Court itself, however, we recognize the uniquely ambiguous character of Eleventh
Amendment immunity. See Union Pac. R.Co. v. La. Pub. Svc. Comm., 662 F.3d 336,340 (5th
Cir. 2011)(noting that “Eleventh Amendment immunity operates like a jurisdictional bar,” but
“may be waived by the state”); see also 13 C. WRIGHT & A. MILLER, Fed. Prac. & Proc. § 3524.1
(3d ed.).
7 | 01-03-2023 | 07-10-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1019680/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN LEE FOSTER, a/k/a Plum,
Defendant - Appellant.
No. 06-6487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN LEE FOSTER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:03-CR-319-01; 5:05-CV-553-F)
Submitted: June 5, 2006 Decided: June 21, 2006
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
No. 05-7550 dismissed; No. 06-6487 affirmed by unpublished per
curiam opinion.
Nathan Lee Foster, Appellant Pro Se. Winnie Jordan Reaves,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
In appeal No. 05-7550, Nathan Lee Foster seeks to
challenge the district court’s order denying relief on his 28
U.S.C. § 2255 (2000) motion. In appeal No. 06-6487, he challenges
the district court’s denial of his “Place Holder” motion, in which
he sought sixty days to prepare a motion for collateral relief in
light of United States v. Booker, 543 U.S. 220 (2005).
With respect to Foster’s appeal of the denial of his
§ 2255 motion, the order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of his constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
We have independently reviewed the record and conclude that Foster
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss appeal No. 05-7550.
With respect to appeal No. 06-6487, our decision in
United States v. Morris, 429 F.3d 65 (2005), precludes Foster from
- 3 -
preparing a motion that would rely on the retroactive application
of Booker to his case on collateral review. We accordingly affirm
the district court’s decision in appeal No. 06-6487. See United
States v. Foster, 5:03-CR-319-01 (E.D.N.C. Mar. 3, 2006).
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
No. 05-7550 DISMISSED
No. 06-6487 AFFIRMED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589434/ | 783 N.W.2d 133 (2010)
287 Mich. App. 136
PARIS MEADOWS, LLC
v.
CITY OF KENTWOOD.
Docket No. 286978.
Court of Appeals of Michigan.
Submitted December 2, 2009, at Grand Rapids.
Decided January 12, 2010, at 9:10 a.m.
*135 Charron & Hanisch, P.L.C., Grand Rapids (by David W. Charron and Heidi L. Hohendorf), for petitioner.
Law, Weathers & Richardson, P.C. (by Jessica L. Wood, Grand Rapids, and Jeffrey T. Gray), for respondent.
Before: MARKEY, P.J., and BANDSTRA and MURRAY, JJ.
MURRAY, J.
I. INTRODUCTION
Petitioner, Paris Meadows, L.L.C., appeals as of right a July 23, 2008, judgment entered by the Michigan Tax Tribunal that granted the city of Kentwood's motion for summary disposition and denied Paris Meadows' motion for summary disposition. The central question on appeal is whether the city can tax the common element of Paris Meadows' condominium development independent of the condominium units. We hold that it cannot, and therefore reverse the decision of the Tax Tribunal and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Paris Meadows developed a residential 24-unit condominium project, and recorded a Master Deed for the project on December 29, 2005, in Kent County. The disputed property is designated as a "convertible area" on the subdivision plan, and is defined in the Master Deed as part of the "general common elements" of the condominium project. The general common elements include "[t]he land (including air space) described in Section 2.1 [setting forth the legal description of the condominium project] of this Master Deed (except for any land which is part of a Condominium Unit and any portion designated in Exhibit B as a Limited Common Element)."[1] Paris Meadows, as the developer, reserved the right to contract or expand "all or any portion of the lands described from time to time in Section 2.1 [except for units that are sold or subject to a binding purchase agreement] by an amendment or series of amendments to the Master Deed ... without the consent of any Co-owner, mortgagee, or other person" before six years from the date the Master Deed was recorded. Paris Meadows similarly reserved the right to convert, within those six years, "any General Common Element into one or more additional Condominium Units and/or into Limited Common Element(s) appurtenant *136 to one or more Units, by an amendment... without the consent of any Co-owner, mortgagee, or other person." Although Paris Meadows reserved these development rights, the co-owners were granted exclusive rights to their individual units, the appurtenant limited common elements, and have an undivided interest in, "and an inseparable right to share with other Co-owners, the General Common Elements of the Project as described in this Master Deed."
This dispute originated in March 2007, when the city sent Paris Meadows a notice of assessment regarding Paris Meadows' property. The city assessed the disputed property at $240,500, and indicated a taxable value of $240,500. Paris Meadows asserted that the disputed property was not subject to separate taxation against it because the property consisted solely of the general common element area of the condominium project, and no condominium units were established on the property.
Paris Meadows petitioned for review of the assessment to the city of Kentwood Board of Review, arguing that the general common elements of the project were not subject to taxation under MCL 559.231 of the Michigan Condominium Act (MCA), MCL 559.101 et seq. The Board of Review denied Paris Meadows' appeal and sustained the assessed and taxable value of $240,500. Paris Meadows appealed that decision to the Tax Tribunal's small claims division, where it moved for summary disposition, again arguing that the disputed property consisted only of the "general common element, and not a condominium unit, pursuant to the Michigan Condominium Act."
In its response to Paris Meadows' motion for summary disposition, and in its own motion for summary disposition, the city arguedrelying on Richmond Street, LLC v. City of Walker, 16 MTTR 571, 2008 WL 5083015 (Docket No. 337980, June 23, 2008),that the disputed property consisted of a "convertible area," not a general common element, to which Paris Meadows had the exclusive right (for six years) to develop with additional condominium units, and noted that utilities and streets were already constructed before the Master Deed was recorded. The city also argued that Paris Meadows may be treated as the owner of the property and taxed as the owner, as Paris Meadows has control over the property and is the agent of the co-owners under the Master Deed.
The Tax Tribunal denied Paris Meadows' motion for summary disposition, and granted the city's motion for summary disposition. In doing so, the Tax Tribunal noted that because the Master Deed provided that the developer reserved the right to contract, convert, or expand the condominium project (including the disputed area) for six years after the Master Deed was filed, under its earlier decision in Bay Harbor Yacht Club v. City of Petoskey, 16 MTTR 339, 2006 WL 3170332 (Docket No. 298777, May 2, 2006), the disputed property was not a "true" common element until after the six years ran because the common element was not inseparable from the individual condominium units. Thus, the Tax Tribunal upheld the assessment on Paris Meadows for the common element.
III. ANALYSIS
This Court reviews de novo the Tax Tribunal's decision to grant or deny a motion for summary disposition under MCR 2.116(C)(10). Signature Villas, LLC v. City of Ann Arbor, 269 Mich.App. 694, 698, 714 N.W.2d 392 (2006). This Court must view the affidavits, pleadings, and other documentary evidence in the light most favorable to Paris Meadows, and decide whether Paris Meadows has raised a genuine issue of material fact. Id. at 698-699, *137 714 N.W.2d 392; MCR 2.116(C)(10). The central dispute in this case involves the proper interpretation and application of statutory language, which is a question of law that this Court reviews de novo. Signature Villas, supra at 699, 714 N.W.2d 392. "The primary goal of statutory interpretation is to give effect to the intent of the Legislature." In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). This Court begins by reviewing the text of the statute at issue; if the language is unambiguous, it is presumed that the Legislature intended the meaning plainly expressed, and judicial construction of the statute is not permitted. Id. Nothing may be read into a clear statute "that is not within the manifest intent of the Legislature as derived from the words of the statute itself." Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 63, 642 N.W.2d 663 (2002).
The tribunal's factual findings are to be affirmed if supported by competent, material, and substantial evidence. Meadowlanes Ltd. Dividend Housing Ass'n v. City of Holland, 437 Mich. 473, 482, 473 N.W.2d 636 (1991). Because we are reviewing a decision of a state agency, we give
"respectful consideration" and [must have] "cogent reasons" for overruling an agency's interpretation. Furthermore, when the law is "doubtful or obscure," the agency's interpretation is an aid for discerning the Legislatures intent. However, the agency's interpretation is not binding on the courts, and it cannot conflict with the Legislatures intent as expressed in the language of the statute at issue. [In re Complaint of Rovas Against SBC Michigan, 482 Mich. 90, 103, 754 N.W.2d 259 (2008).]
Finally, we must recall that "the authority to impose a tax must be expressly authorized by law; it will not be inferred." Michigan Bell Tel. Co. v. Dep't of Treasury, 445 Mich. 470, 477, 518 N.W.2d 808 (1994) (citations omitted).
As noted, the critical issue is whether the convertible property, designated as a common element, can be separately valued and assessed for taxation purposes where the condominium project developer retains the right to convert, contract, or otherwise develop the convertible property for six years. Several statutory definitions of key terms must be considered. Under the MCA, recording a master deed that complies with the MCA establishes the condominium project. MCL 559.172(1). A "condominium project" under the MCA is "a plan or project consisting of not less than 2 condominium units established in conformance with this act." MCL 559.104(1). The MCA defines "condominium unit" as "that portion of the condominium project designed and intended for separate ownership and use, as described in the master deed, regardless of whether it is intended for residential, office, industrial, business, recreational, use as a time-share unit, or any other type of use." MCL 559.104(3). A "co-owner" is defined as "a person, firm, corporation, partnership, association, trust, or other legal entity or any combination of those entities, who owns a condominium unit within the condominium project." MCL 559.106(1). Pursuant to MCL 559.165, the co-owners are required to comply with the terms of the master deed and the association bylaws.
Importantly, "common elements" are defined as "the portions of the condominium project other than the condominium units." MCL 559.103(7). The "convertible area" is designated as "a unit or a portion of the common elements of the condominium project referred to in the condominium documents within which additional condominium units or general or limited common *138 elements may be created in accordance with this act." MCL 559.105(3).[2] In addition, the MCA provides that when a condominium project is established, "each condominium unit, together with and inseparable from its appurtenant share of the common elements, shall be a sole property subject to ownership, mortgaging, taxation, possession, sale, and all types of juridical acts, inter vivos or causa mortis independent of the other condominium units." MCL 559.161. "Each co-owner has an exclusive right to his condominium unit and has such rights to share with other co-owners the common elements of the condominium project as are designated by the master deed." MCL 559.163.
In assessing property taxes on condominium projects, MCL 559.231 provides, in part:
(1) Special assessments and property taxes shall be assessed against the individual condominium units identified as units of the condominium subdivision plan and not on the total property of the project or any other part of the project, except for the year in which the condominium project was established subsequent to the tax day....
(2) Special assessments and property taxes in any year in which the property existed as an established condominium project on the tax day shall be assessed against the individual condominium unit, notwithstanding any subsequent vacation of the condominium project. Condominium units shall be described for such purposes by reference to the condominium unit number of the condominium subdivision plan and the caption of the plan together with the liber and page of the county records in which the approved master deed is recorded. Assessments for subsequent real property improvements to a specific condominium unit shall be assessed to that condominium unit description only. For property tax and special assessment purposes, each condominium unit shall be treated as a separate single unit of real property and shall not be combined with any other unit or units and no assessment of any fraction of any unit or combination of any unit with other units or fractions of any unit shall be made, nor shall any division or split of the assessment or taxes of any single condominium unit be made notwithstanding separate or common ownership of the unit. [Emphasis added.]
The master deed may allocate "an undivided interest in the common elements" to each condominium unit. MCL 559.137(1). Additionally, "the undivided interest in the common elements allocated to any condominium unit shall not be altered, and any purported transfer, encumbrance, or other disposition of that interest without the condominium unit to which it appertains is void[,]" except where the MCA expressly provides otherwise. MCL 559.137(5).
We were recently presented with a very similar case in which we reversed the decision of the Tax Tribunal and held that where the developer retained the right to develop or remove land within the condominium project, the land could not be taxed separately from the condominium units under MCL 559.231. Richmond Street, LLC v. City of Walker, unpublished opinion per curiam of the Court of Appeals, issued July 14, 2009 (Docket *139 No. 286454), 2009 WL 2031890.[3] In Richmond Street, LLC, supra, 16 MTTR at 574, the master deed referred to the disputed property, an undeveloped wetland area, as the general common elements. Like our case, in the master deed the developer also reserved the right to elect, within six years of recording the deed, to contract, withdraw, expand, or convert any of the general common elements by amending the master deed without the consent of any co-owners or others. Id. The Tax Tribunal held that "[t]he degree of control over property by a developer in a convertible condominium project like Richmond's straddles the fence between permitted statutory control and actual control." Id. at 577. Examining the "market realities," the Tax Tribunal concluded that the developer "really controls the land[.]" Id. The Tax Tribunal noted that merely designating a piece of property as a common area, while reserving rights to the developer, does not remove the property from taxation, and found that although the option to convert or develop the property expired in six years and did not exceed the statutory limit, the property "labeled as a `common element' is not truly a common element until after the six years have run, ending the developer's rights to expand the condominium development"; the co-owners of the units therefore did not possess an inseparable appurtenant share of the common elements until the six years elapsed. Id.
On appeal, this Court held that, according to the MCA's definitions of a condominium unit and common elements, "a condominium project consists of `units' and `common elements' only. Any part of the project that is not a unit must be a common element." Richmond Street, LLC, unpub. op. at 2 (emphasis in original). Further, this Court stated that under MCL 559.231(1) and MCL 559.161, the condominium units were properly assessed on the basis of their individual value plus the value of the common elements that was "prorated by the value of each unit and added to the unit's tax bill." Id. This Court concluded that the Tax Tribunal erroneously
used its own definition of "common elements," rather than the one provided by statute, and decided that "common elements" could only include land over which all co-owners had equal control, so the land was not a common element. This reasoning is clearly contrary to the plain language of the MCA. Under the definition provided in MCL 559.103(7), every part of a project that is not part of a unit is a "common element." Notably, some of these common elements might include "limited common elements," which by definition are not subject to the use of all co-owners equally. MCL 559.107(2). Although a developer may retain rights to withdraw or develop land within the project, until it records an amended master deed the land remains part of the project and, under MCL 559.231, no part of the project is taxed separately from the units. The MTT failed to recognize that although units and their appurtenant common elements are inseparable, the MCA fully contemplates that the size of common elements can be altered through the means set forth in the Act. The MTT seemed to find an irresolvable conflict between petitioner's reserved rights and the MCA's provision in MCL 559.137(5) that a transfer of an interest in common *140 elements separate from a unit is void, but that provision is only applicable "[e]xcept to the extent otherwise expressly provided by this act...." [MCL 559.137(5).] Because the MCA expressly provides for the withdrawal or conversion of common elements, the MTT erred in finding that petitioner's reservation of such rights was contrary to the MCA. [Id., unpub. op. at 2-3 (emphasis in original).]
Indicating that the Tax Tribunal "erred in imposing its view of what the statute should read instead of simply reading the definitions and provisions that the Legislature included in the act[,]" this Court concluded that the city lacked authority under the MCA "to tax any part of a condominium project separately from the units unless that part has been withdrawn according to the procedures set forth in the MCA." Id., unpub. op. at 3.
We agree with this rationale, and adopt it as our own. Consequently, we hold that the Tax Tribunal erred by concluding that Paris Meadows' reservation of rights to develop the disputed property rendered the property not a common element, and thus separately taxable. According to the language in the master deed and the MCA, the disputed property was a common element, in which the co-owners held an undivided, inseparable interest, and the fact that Paris Meadows retained the right to withdraw or develop the property for six years did not vitiate this fact. MCL 559.103(7); Richmond Street, LLC, unpub. op. at 2-3.
The plain language of the MCA specifically provides for the right of the developer to subsequently develop or otherwise modify property within the condominium project. For example, pursuant to MCL 559.132, if the project is an expandable project, then the master deed must explicitly include this reservation of rights by the developer, any restrictions on this election (such as co-owner consent), a time limit of not more than six years, a description of the land that may be added, the specific methods for expansion, and any limitations on the development. Where the project is a "contractable" condominium project, the master deed must contain a reservation explicitly providing the developer with an option to elect to withdraw land, any restrictions on electing the option (such as co-owner consent), a time limit of six years, a description of the subject property, and any restrictions on withdrawing the land. MCL 559.133. Additionally, the MCA also allows for the creation of a "convertible area," which can be either "a unit or a portion of the common elements," wherein general or limited common elements or condominium units may subsequently be created. MCL 559.105(3); MCL 559.131 (providing that certain specific information regarding the potential development of convertible areas of the project must be contained in the master deed). In general, "or" is a disjunctive term, indicating a choice between two alternatives, i.e., a unit or a portion of the common elements. Auto-Owners Ins. Co. v. Stenberg Bros., Inc., 227 Mich.App. 45, 50, 575 N.W.2d 79 (1997). MCL 559.141(1) specifically provides that the "developer may convert all or any portion of any convertible area into condominium units or common elements, including, without limitation, limited common elements, subject to the restrictions which the condominium documents may specify."
Similar to the Tax Tribunal in Richmond Street, LLC, the Tax Tribunal in the present case "seemed to find an irresolvable conflict" as a result of the fact that Paris Meadows reserved rights in the common elements that were owned by all co-owners of the condominium units. Richmond Street, LLC, unpub. op. at 2. *141 Interpreting the MCA to preclude a developer from retaining rights in the common elements goes against the plain language of the act. The MCA clearly provides for the reservation of development rights by the developer. The Legislative intent is further demonstrated by the fact that the MCA permits the master deed to designate what are the common elements of the condominium project and what rights the units' co-owners hold in them, as the master deed did in this case. MCL 559.163; MCL 559.137(1).
In conclusion, the plain language of the MCA prohibits the separate taxation of the disputed property except through the condominium units. MCL 559.161; MCL 559.137(5); MCL 559.231(1). The disputed property, as a common element, was subject to ownership and taxation only through the individual condominium units, because the individual condominium units are owned and taxed as individual units plus their inseparable and appurtenant shares of the common elements. MCL 559.161. Property taxes may only be assessed against the individual units, not the total property of the project. MCL 559.231(1). As this Court previously held, "no part of the project is taxed separately from the units," Richmond Street, LLC, unpub. op. at 2, even when the developer reserves development rights. MCL 559.103(7). The Tax Tribunal erred by concluding otherwise.
The city's final argument is that it could assess taxes on the disputed property against Paris Meadows because it was an agent of the co-owners. However, whether Paris Meadows was an agent of the co-owners is irrelevant, because, pursuant to MCL 211.3, where the owner of the property is known, the owner is taxed:
Real property shall be assessed in the township or place where situated, to the owner if known, and also to the occupant, if any; if the owner be not known, and there be an occupant, then to such occupant, and either or both shall be liable for the taxes on said property, and if there be no owner or occupant known then as unknown. A trustee, guardian, executor, administrator, assignee or agent, having control or possession of real property, may be treated as the owner.
Hence, resort to the agent of the owner is not necessary because the owners of the disputed property are known: the co-owners of the individual condominium units.
Reversed and remanded. No costs, a public question being involved. We do not retain jurisdiction.
NOTES
[1] The limited common elements include cable and utility lines, decks, patios, porches, driveways, sidewalks, parking areas, and heating and cooling appliances.
[2] "General common elements" are "the common elements other than the limited common elements." MCL 559.106(5). "Limited common elements" are "a portion of the common elements reserved in the master deed for the exclusive use of less than all of the co-owners." MCL 559.107(2).
[3] Although unpublished opinions of this Court are not binding precedent, MCR 7.215(C)(1); In re Application of Indiana Michigan Power Co., 275 Mich.App. 369, 380, 738 N.W.2d 289 (2007), they may, however, be considered instructive or persuasive. Id. In the present circumstances, Richmond Street, LLC, provides instructive and persuasive value. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589439/ | 972 So.2d 194 (2008)
RIVERA
v.
STATE.
No. 3D07-2735.
District Court of Appeal of Florida, Third District.
November 28, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/288897/ | 422 F.2d 1272
Robert W. JACKSON, Appellant,v.HARTFORD ACCIDENT AND INDEMNITY COMPANY, Marvin Rice, Virgil Erickson and John Fetzer, Appellees.
No. 19671.
United States Court of Appeals, Eighth Circuit.
March 10, 1970.
Elwyn L. Cady, Jr., Independence, Mo., for appellant.
Paul Scott Kelly, Jr., of Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, Mo., for appellees, Marvin Rice and Hartford Accident and Indemnity Co.
Robert A. Schroeder and Theodore J. Furry, Kansas City, Mo., for appellee John Fetzer.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
MEHAFFY, Circuit Judge.
1
This appeal is from a judgment adverse to plaintiff-appellant in an action for damages for alleged deprivation of plaintiff's rights under the Civil Rights Act, 42 U.S.C. § 1983.1 Defendants-appellees are Marvin Rice, sheriff of Chariton County, Missouri; Virgil Erickson, his deputy; Hartford Accident and Indemnity Company, surety on the officers' bonds; and Dr. John Fetzer, an osteopathic physician who as county physician treated plaintiff during his incarceration.
2
The basis of plaintiff's claims as set forth in his amended complaint is that defendants failed to "furnish non-negligent professional medical and surgical attention to plaintiff as was required to fulfill the duty imposed by law." It is contended that defendants' failure to fulfill this duty amounted to cruel and unusual punishment in violation of the Eighth Amendment and constituted a lack of due process under the Fourteenth Amendment to the Constitution of the United States.
3
This case was tried before Chief Judge Becker of the United States District Court for the Western District of Missouri sitting without a jury. Judge Becker held in an unreported but elaborate opinion constituting his findings of fact and conclusions of law that there was no evidence of negligence, and judgment was accordingly entered for defendants. We affirm the judgment of the district court.
4
Briefly recited, the evidence reflects that on Saturday night, September 11, 1965, plaintiff, who had been drinking for several hours and was drunk, was arrested by a deputy sheriff on a charge of disturbing the peace. The deputy sheriff attempted to place plaintiff in a patrol car but on several tries plaintiff struggled out of control and it finally became necessary for the deputy sheriff to hit plaintiff on the head with his night stick in order to handcuff him and take him to the county jail. After being driven to the jail, plaintiff was able to walk in unassisted. He slept most of the next day, which was Sunday. It is conceded that the arrest was lawful and no claim was made other than failure to furnish proper and non-negligent medical care. On Monday, September 13, 1965, plaintiff was taken before the magistrate's court and after pleading guilty to the charge of disturbing the peace, he was sentenced to sixty days in jail.
5
It was not until the following Tuesday, September 14, 1965, that plaintiff asked to see a doctor. The sheriff promptly called Dr. Fetzer, the county physician, who examined plaintiff on this date. Plaintiff complained at that time that he was nervous, could not sleep nor eat and felt shaky. Dr Fetzer examined him and diagnosed his condition as withdrawal from excessive use of alcohol and prescribed aspirin. Dr. Fetzer found plaintiff's temperature to be normal, his heart beat fast and blood pressure normal. Two days later Dr. Fetzer again examined plaintiff and in his opinion plaintiff had recovered from his drunkenness and would be all right within a few days.
6
A doctor was at the jail one or two days a week during plaintiff's incarceration but he did not again ask to see a doctor or ask to be examined until October 4, 1965. On this date Dr. Fetzer was unavailable but Dr. George Quinn was called. He examined plaintiff and observed that he had a broken and abscessed tooth which caused swelling of his left cheek. Dr. Quinn prescribed an antibiotic for treatment of the infected tooth. Dr. Fetzer next visited plaintiff on October 11 and observed the swelling and the abscessed tooth, but saw no evidence of a fracture. He lanced the swelling and administered antibiotics and penicillin. On October 14, Dr. Fetzer again examined plaintiff and found the tooth still infected but an examination on October 25 revealed that the infection had cleared up. On this date, however, plaintiff still complained of pain and Dr. Fetzer recommended that the jaw be x-rayed. He made arrangements for plaintiff to be released from jail some eleven or twelve days prior to the expiration of his sentence for the purpose of going to the University of Missouri Medical Center for x-rays inasmuch as there were no x-ray facilities in Chariton County. The x-ray at the Medical Center revealed that plaintiff had a fractured jaw which required wiring in order to allow it to heal properly, but did not require repositioning. Since there were no facilities at the Medical Center for wiring the jaw, plaintiff was sent to the General Hospital in Kansas City where the wiring operation was performed and the abscessed tooth extracted. If the fracture had been discovered earlier, the proper procedure would nonetheless have been to clear up the infection before wiring the jaw.
7
Judge Becker found from the evidence that plaintiff was seen a total of fifteen to twenty times by three doctors, including Dr. Fetzer, Dr. Quinn and one Dr. Pressly, while incarcerated for some forty-eight days in the Chariton County jail. Dr. Scott, who testified for plaintiff at the trial, stated that plaintiff's jaw position was satisfactory. Judge Becker found that under the uncontradicted evidence "defendants Rice and Erickson provided apparently competent practitioners to attend plaintiff each and every time he requested medical service and that there was no other instance of apparent need in which Sheriff Rice or his deputy Erickson refused or neglected to provide an apparently competent practitioner." The court further found that "Dr. Fetzer appropriately diagnosed and treated the infected tooth, and not untimely, in view of the circumstances, suspected plaintiff's jaw to be broken, whereupon he took steps to effect plaintiff's immediate and early release for the purpose of having an x-ray taken."
8
It was plaintiff's testimony that he demanded to see a doctor and have his jaw x-rayed as early as the first Monday he was in jail although this conflicted with his deposition and was against the overwhelming countervailing evidence. In sum, Judge Becker held that under the evidence Dr. Fetzer could not reasonably be found to have accorded plaintiff negligent treatment, much less to have subjected him to cruel and unusual punishment violative of the Eighth and Fourteenth Amendments.
9
We think that Judge Becker's findings under the evidence in this case on its factual aspects are dispositive of the controversy. In cases tried to the court without a jury, we have no right to set aside a finding of the trial court if there is any substantial evidence to sustain it except for the reasons contained in the well-settled rule that we stated in Christensen v. Great Plains Gas. Co., 418 F.2d 995, 998 (8th Cir. 1969), in the following language:
10
"We have no right to set aside a finding of fact of the trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. St. Louis Testing Laboratories, Inc. v. Mississippi Valley Structural Steel Co., 375 F.2d 565, 567 (8th Cir. 1967)."
11
Plaintiff contends that certain admissions of Sheriff Rice and Dr. Fetzer constituted judicial admissions establishing that his federal rights under § 1983 were violated. We have considered this contention and find it has no merit.
12
Plaintiff also contends that the court erred in not considering and relying on the expert testimony of Dr. Scott. Aside from the fact that this doctor had limited private practice experience, he was asked to answer a hypothetical question which was obviously incomplete for failure to include some necessary facts and improper for other reasons not necessary to relate. Further, his answer was contradicited by all the other doctors. It is the trial court's function, not ours, to assess the weight to be given such testimony even though it be from an expert. We said in Parke-Davis & Co. v. Stromsodt, 411 F.2d 1390, 1395 (8th Cir. 1969), that "* * * the resolution of conflicting testimony, including that of expert witnesses, is for the trier of fact. (Citing cases.)"
13
Since the evidence clearly supports Judge Becker's holding that defendants were guilty of no negligence whatsoever, we do not need to reach the question of application of the federal act. Assuming that it is applicable, there is no evidence justifying a finding that there was any negligence on the part of defendants or any possibility of a violation of the plaintiff's rights under the Eighth and Fourteenth Amendments to the Constitution of the United States.
14
The judgment is affirmed.
Notes:
1
42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
LAY, Circuit Judge (concurring):
15
I concur in the court's opinion. Upon review of the entire evidence one cannot reasonably state with "definite and firm conviction that a mistake has been committed." United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
16
I dislike entering into a mired, well-worn path of semantic debate. However, the common law lives only by the words judges write, so significantly, the preciseness of judicial definitions often serves as the pivotal factor for future cases. The language that this court has traditionally utilized in defining the standard of "clearly erroneous," as applied to a trial judge's findings, is not only troublesome to me, but seemly patent error.
17
In December 1943, this court decided the often cited case of Cleo Syrup Corp. v. Coca-Cola Co., 139 F.2d 416, 150 A.L. R. 1056 (8 Cir. 1943). Judge Sanborn stated these principles:
18
"This court, upon review, will not retry issues of fact or substitute its judgment with respect to such issues for that of the trial court. * * * In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law." 139 F.2d at 417-418.
19
This language was drawn from his earlier opinion Aetna Life Ins. Co. v. Kepler, 116 F.2d 1, 5 (8 Cir. 1941). Judge Sanborn there pointed out the old distinction between equity rules and law rules as to review of the trial court's findings of fact. He said:
20
"Prior to the effective date (September 16, 1938) of the Rules of Civil Procedure, the findings of fact of a trial court, in an action at law tried without a jury, were as conclusive, upon review, as a verdict of a jury, and could not be set aside by the reviewing court if there was any substantial evidence to support them. A different rule prevailed in equity cases. The findings of fact of the trial court in such cases were presumptively correct, and, unless clearly against the weight of the evidence or induced by an erroneous view of the law, would not be disturbed by a reviewing court."
21
He then pointed out the effect of the then new Rule 52(a)
22
"* * * was to establish a uniform standard for testing the validity of findings of fact in any case tried without a jury. The standard adopted was that which had always prevailed in equity.
23
"This Court, with respect to jury-waived cases, is no longer merely a court of error which considers only questions of law. It now acts as a court of review in all non-jury cases in accordance with the practice which formerly prevailed in equity appeals."
24
The opinion quotes from the Chairman of the Advisory Committee (Honorable William Mitchell) regarding the adoption of Rule 52(a). The Chairman pointed out that under 52(a), a trial judge's findings in both types of actions (equity as well as law) "can be set aside if against the clear weight of evidence, even though there is some evidence that might support a verdict or findings in a law case under the old system." 116 F. 2d at 5, n. 3.
25
However, in concluding his discussion, Judge Sanborn said: "The findings of fact of the court below to the extent that they are unsupported by substantial evidence * * * are not binding upon this Court." 116 F.2d at 5.
26
The danger lurking behind this statement is, as this court has done many times in the past, in restating the converse of the above rule to the effect that "we have no right to set aside a finding of the trial court if there is any substantial evidence to sustain it. * * *" This simply reinstates the rule supposedly discarded by the adoption of Rule 52(a). See United States v. U. S. Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525.
27
Text writers have consistently been critical of the courts for equating "substantial evidence" with the "clearly erroneous" rule. An example of this is stated in 2B Barron-Holtzoff, Federal Practice & Procedure, § 1135 at p. 549 (Rev. Rules ed. 1961):
28
"There is occasionally a suggestion that a finding which is supported by substantial evidence cannot be clearly erroneous. This is not the law. If the findings of the trial court appear to be against the clear weight of the evidence, after giving full effect to the special qualification of the trial judge to estimate the credibility and value of oral testimony, the appellate court may set aside the findings, and will do so even where there is evidence which, if credible, would be substantial, if the effect of the testimony considered as a whole convinces the appellate court that the finding is so against the great preponderance of credible testimony that it does not reflect the truth and right of the case." Professor Davis points out:
29
"The scope of review of findings of a judge without a jury, however, is different from the scope of review of administrative findings and of jury verdicts, for findings of a judge may be upset if they are `clearly erroneous.' Because findings may be clearly erroneous without being unreasonable so as to be upset under the substantial-evidence rule, the scope of review of administrative findings is narrower than the scope of review of a judge's findings." Davis, Admin. Law § 29.02 at p. 121.
30
The Davis treatise also points up the overall legislative history of the Administrative Procedure Act, 5 U.S.C.A. § 551 et seq. (hereinafter APA). Its sponsors rejected the "clearly erroneous" test and adopted the "substantial evidence" rule in its place. Professor Davis, in quoting from a law review commentator, sets forth:
31
"`Application of the "clearly erroneous" rule to administrative agencies was favored and opposed precisely because it would give administrative findings less finality than they enjoyed under the "substantial evidence" rule.'" § 29.02 at p. 123.
32
The history of the APA is similarly detailed by Mr. Justice Frankfurter in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
33
Perhaps, as some have intimated, the distinction between review of findings of fact based upon "substantial evidence" and review based upon the "clearly erroneous" rule is too marginal to make a difference.1 Justice Frankfurter, however, did not assume as much when he earlier observed:
34
"The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work.
35
* * * * * *
36
"But a standard leaving an unavoidable margin for individual judgment does not leave the judicial judgment at large even though the phrasing of the standard does not wholly fence it in. The legislative history of these Acts demonstrates a purpose to impose on courts a responsibility which has not always been recognized." 340 U.S. at 489, 71 S.Ct. at 465.
37
It is submitted that courts of review would add more light to the standard of "clearly erroneous" by avoiding use of the term of "substantial evidence."
38
One of the major areas of confusion arises in distinguishing between "substantial evidence" and "substantial evidence on the record as a whole." For example, where substantial evidence on the record as a whole exists, an administrative board's finding is conclusive on a reviewing court. Yet, it is clear that this standard is not applicable under the "clearly erroneous test."2
39
The Fifth Circuit points up another area of confusion:
40
"The clearly erroneous concept * * * affords a greater latitude [of review] than would an appeal from a jury verdict. In the latter it is a question of substantial evidence. In the former, there is still the qualitative factor of the truth and right of the case — the impression that a fundamentally wrong result has been reached." (Emphasis ours.) Oil Screw Noah's Ark v. Bentley & Felton Corp., 322 F.2d 3, 5-6 (5 Cir. 1963).
41
See also United States v. U. S. Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525, 92 L. Ed. 746.
42
In the final analysis, the language from the Gypsum case gives us a definite guideline as to the meaning of "clearly erroneous," and formulas attempting to rephrase it are more confusing than helpful.3 The ultimate test of any appellate standard of review is what finality and integrity be given to findings being reviewed. The rules emphasize that traditional weight be given to a trial court's determination of credibility of the witnesses. Nevertheless, Rule 52(a) when viewed in light of its legislative history and by Supreme Court decisions, demonstrates that an appellate court may substitute its judgment for the trial court's findings notwithstanding substantial evidence to support it, when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." The occasion to so hold seldom arises, but I deem it important not only here, but in all proceedings, to hold firm to Judge Frank's observation: "It follows that evidence sufficient to support a jury verdict or an administrative finding may not suffice to support a trial judge's finding." Orvis v. Higgins, 180 F.2d 537, 540 (2 Cir. 1950).
Notes:
1
See NLRB v. Southland Mfg. Co., 201 F.2d 244, 250 (4 Cir. 1952) (per J. Soper)
2
Cf. Montana-Dakota Utilities Co. v. Federal Power Comm'n, 169 F.2d 392, 398 (8 Cir. 1948): "The findings of an administrative agency are not to be tested by Rule 52(a) of the Rules of Civil Procedure." See also the statement in Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951):
"To be sure, the requirement for canvassing `the whole record' in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view."
3
InUniversal Camera Mr. Justice Frankfurter similarly spoke of the definitions as to the "substantial evidence" rule:
"Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment." 340 U.S. at 489, 71 S.Ct. at 465. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1589444/ | 14 So.3d 51 (2009)
A.B. and B.B., Appellants,
v.
LAUDERDALE COUNTY DEPARTMENT OF HUMAN SERVICES, Appellee.
No. 2006-CA-01362-COA.
Court of Appeals of Mississippi.
June 17, 2008.
Rehearing Denied November 25, 2008.
James A. Williams, attorney for appellants.
Katherine Jane Caldwell, attorney for appellee.
EN BANC.
GRIFFIS, J., for the Court.
¶ 1. A.B. and B.B.[1] appeal from the Lauderdale County Youth Court's termination of their parental rights, alleging (1) that the court erred in failing to appoint a lawyer for A.B. at the initial hearing on a petition for neglect brought against them by the Lauderdale County Department of Human Services (DHS), (2) that the court erred in not considering less permanent alternatives to termination of their parental rights, and (3) that the court erred in terminating B.B.'s parental rights when B.B. did not receive notice or summons regarding the neglect hearing. Finding no error, we affirm.
FACTS
¶ 2. A.B. and B.B. are the parents of three children that are at issue here: two girls, Tonya and Sonya, and a boy, Ned. Tonya and Sonya are twins who were born *52 on November 1, 2001. Ned was born on September 20, 2003. At some point while A.B. was pregnant with Ned, the Lauderdale County Department of Human Services became aware of allegations that Tonya and Sonya were living in a poorly kept house and were being exposed to drugs. After an investigation, DHS took custody of Tonya and Sonya on August 26, 2003, pursuant to an order from the youth court. Around the same time, A.B. admitted that she was currently using drugs even though she was pregnant. DHS took custody of Ned on September 22, 2003, two days after he was born.
¶ 3. Thereafter, A.B. and B.B. entered into a service agreement with DHS that was intended to make A.B. and B.B. fit to rear their children. On May 4, 2004, the court returned custody of the three children to A.B. and B.B. because they had completed their service agreement. Subsequent inquiries by DHS revealed that A.B. and B.B. appeared to be taking adequate care of the children. DHS was relieved of any further responsibility for the children on June 10, 2004.
¶ 4. In early November 2004, A.B. attended her father's funeral. Her actions at the funeral led to concerns that she was once again abusing drugs, and DHS was contacted. On November 9, 2004, after two unsuccessful attempts to locate A.B. and the children, Brenda Snowden, a social worker with DHS, went to A.B.'s home. Peering through a glass in a storm door, Snowden observed the three children, but no adults. One of the girls came over and opened the door. Snowden observed that Ned appeared to be adequately clothed and sufficiently cared for, but she noted that the same was not true of the twins. One of the girls was completely naked, while the other had on a diaper that was so saturated with urine and feces that it hung down to her knees. Snowden called repeatedly for A.B., to no avail. After walking down a hallway, Snowden found A.B. and a man on a bed in another room. The man was not B.B., and A.B. had on nothing but a T-shirt. Snowden stated that she had great difficulty waking A.B., who appeared to be in a deep slumber. Although it was two in the afternoon, A.B. stated that she was in bed because she had just fed the children breakfast and had then gone back to bed. Snowden requested a urine sample from A.B., which A.B. gave. Analysis of the sample revealed that it was too diluted to be useful in determining whether A.B. had been using drugs. Another urine sample taken later in November also came back as diluted.
¶ 5. On November 30, 2004, pursuant to a court order transferring custody of the children to DHS, Snowden, accompanied by Gypsy Ward, a Lauderdale County deputy, went to the home[2] where she had found A.B. and the children on November 9. Snowden and Ward did not find A.B. or the children, but Ward found a plastic bag containing what appeared to be a contraband substance.[3] Ward testified that the house was "horrible. It was-it was nasty. They didn't have no [sic] power; didn't have no [sic] water and they was [sic] using the toilet and couldn't flush it." After the discovery of what appeared to be a controlled substance, Ward contacted the *53 Drug Task Force, and Anthony Ball, a drug task force agent, came to assist. After finding no one at the home, Snowden proceeded to a trailer on the other side of Lauderdale County where she had reason to believe the children were located.[4] At the trailer, Snowden encountered B.B., who claimed that he did not know where A.B. was. However, one of the children told Snowden that A.B. had climbed out of a window of the trailer and had run away in response to Snowden's approach. After she was located, A.B. denied that she had climbed out of a window of the trailer.
¶ 6. A.B. was arrested for possession of drugs based on the substance that was found in the plastic bag at the house on November 30.[5] On December 30, 2004, the court held a neglect hearing. B.B. was not present at the hearing because he could not be located. A.B. was present at the hearing and admitted that she could not take care of her children due to her incarceration. Additionally, she testified that she passed a drug screen on November 30 or December 1 after she was incarcerated. Her probation officer, William Lucy, confirmed the truthfulness of this testimony. At the conclusion of the hearing, the court found that the children were neglected and ordered DHS to "immediately pursue termination of parental rights" of A.B. and B.B. On April 14, 2005, B.B. sent a letter to the court, explaining that he had retained an attorney. On May 26, 2005, DHS filed a petition to terminate A.B. and B.B.'s parental rights.
¶ 7. A hearing on the termination of parental rights was held on July 13, 2006, over a year after the filing of the petition and more than a year and a half after the neglect hearing. A.B. was present at the hearing with counsel. B.B. apparently could not be found and was not present at the hearing. At the hearing, testimony was elicited regarding the November 2004 events, as well as the events that had happened when A.B. and B.B. lost custody of their children in 2003. The court essentially refused to hear any evidence of A.B.'s rehabilitation between December 30, 2004, and the date of the hearing a year and a half later. Specifically, the court refused to allow A.B.'s probation officer to testify that A.B. had tested negative on two drug tests since November 2004.
¶ 8. In its order terminating parental rights, the court found that A.B. and B.B.:
exhibit ongoing behavior which would make it impossible to return the Minor Petitioners to said Respondents' care and custody because said Respondents have a drug addiction, unlikely to change within a reasonable time, which condition makes said Respondents unable to assume minimally, acceptable care of the Minor Petitioners constituting grounds for termination of their parental rights. ...
The Court finds that the Respondents... exhibit and have failed to eliminate ongoing behavior, identified to said Respondents by the Lauderdale County Department of Human Services, which prevents placement of the Minor Petitioners with said Respondents in spite of diligent efforts of the Department of Human Services to assist said Respondents constituting grounds for termination of their parental rights. ...
*54 The Court finds that [Tonya, Sonya, and Ned] have been adjudicated to have been abused or neglected and custody has been transferred from [A.B. and B.B.] for placement pursuant to Section 43-15-13 of the Mississippi Code of 1972, Annotated, and a court of competent jurisdiction has determined that reunification shall not be in the Minor Petitioners' best interest, constituting grounds for termination of their parental rights. ...
¶ 9. We now consider whether the youth court erred by terminating the parental rights of A.B. and B.B.
ANALYSIS
1. Appointment of Attorney
¶ 10. A.B. complains that she was not appointed an attorney at the December 30 neglect hearing. The record is void of any request by her for an attorney. Documentation sent to her regarding the neglect hearing clearly stated that she was entitled to have an attorney present to represent her. We have found nothing that indicates that the court should have sua sponte appointed A.B. an attorney. This issue is without merit.
2. Propriety of Termination
¶ 11. Although A.B. and B.B. frame their contentions on this issue in terms of the court's failure to consider alternatives other than permanent termination of parental rights, we have chosen to address the core question: whether the court erred in terminating A.B. and B.B.'s parental rights.
¶ 12. There is a two-part test, initially outlined in Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984), that a court must use when deciding whether to terminate the parental rights of a natural parent. W.A.S. v. A.L.G., 949 So.2d 31, 35(¶ 10) (Miss.2007). "First, the petitioner must establish by `clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child.'" Id. (quoting Petit, 443 So.2d at 877). If the court finds that the first prong is satisfied, it must then consider whether termination is in the best interest of the child. Id.
¶ 13. The Mississippi Legislature has established guidelines for determining whether the parental rights of a natural parent should be terminated. Mississippi Code Annotated section 93-15-103(3) (Rev. 2004) specifies several grounds upon which parental rights may be terminated. Clear and convincing evidence of any one of the grounds is sufficient to warrant termination. W.A.S., 949 So.2d at 35(¶ 11).
¶ 14. While the basis for terminating parental rights is clear and convincing evidence, on appeal, our standard of review dictates that we may reverse the decision of the youth court "only if reasonable men could not have found as the youth court did beyond a reasonable doubt." May v. Harrison County Dep't of Human Servs., 883 So.2d 74, 77(¶ 10) (Miss.2004). Additionally, where no jury was involved, the trial court's factual determinations will only be disturbed where the record lacks substantial supporting evidence. Id. Substantial evidence is "such relevant evidence as reasonable minds might accept as adequate to support a conclusion." G.Q.A. v. Harrison County Dep't of Human Servs., 771 So.2d 331, 335(¶ 15) (Miss.2000) (quoting Hooks v. George County, 748 So.2d 678, 680(¶ 10) (Miss.1999)). Here, the youth court correctly found that there was substantial evidence to support the termination of parental rights.
¶ 15. Mississippi Code Annotated section 93-15-103(3)(e)(i) and (ii) (Rev.2004) provide:
*55 (3) Grounds for termination of parental rights shall be based on one or more of the following factors:
. . . .
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, sever mental deficiencies or mental illness, or extremely physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent[.]
(Emphasis added).
¶ 16. The youth court found, and we agree, that the parents have failed to eliminate prior behavior identified by the child caring agency and the court. Previously, A.B., the mother, was pulled over by the police with her children in the car. The police found a burner, police scanner, and a recipe for crystal methamphetamine. A.B. also admitted to using crystal methamphetamine while pregnant. The father, B.B., had been arrested on drug charges and was not present during the current termination of parental rights proceedings. Both parents have served time in prison on drug-related charges. The parents were given another chance to show that they could adequately care for their children. They failed.
¶ 17. Not even six months after they regained custody, a social worker from DHS came by the home to check on the children. In the middle of the afternoon, as she approached the door, the social worker saw the three young children inside the home, but she did not see an adult. After repeatedly knocking on the door, one of the children finally let the social worker in the house. The social worker saw one child, who was naked, and another child whose diaper was so saturated that it hung at the child's knees. The social worker continued to call for A.B., but received no answer. When she finally found A.B., she was in her bedroom, lying on the bed with a man who was not her husband, wearing no underwear, and looking dazed. A.B. then submitted to a drug test, and when it came back diluted, A.B. refused to give a hair sample. The trial judge correctly found:
Obviously if [A.B.'s] involved in controlled substances enough, she knows what the indicators would be if she were to give the hair sample and she flat refused to do that, that shows to the Court a lack of cooperation and desire to do those things necessary to rehabilitate herself and to regain custody of her children.
¶ 18. The same afternoon, a deputy sheriff arrived and found the children living in the house with no water or power. The deputy reported finding spoons, weights, and nine grams of amphetamines in the house. When asked if the house was a good place for a child, the deputy responded, "I wouldn't have a dog in there." Later, when the police were looking for A.B., one of her children claimed that she jumped out of a window to avoid them. Another officer testified that both A.B. and B.B. were still doing drugs.
¶ 19. In Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982), the Court noted that "desertion" of a child involves an avoidance of a duty or obligation. Parents *56 have a duty to provide their children with adequate care, a drug-free environment, electricity, and running water. Here, the conditions of the children's home, where the social worker discovered this type of neglect, were sufficient to show that A.B. failed in her duty and obligation to provide adequate care for her children.
¶ 20. While it is true that the youth court should have taken all evidence of A.B.'s drug use into account, we find that there is more than enough evidence to show that A.B. was unfit to raise her children. The officers found spoons, weights, and nine grams of amphetamines. Although the drug charges were later dropped, the youth court could certainly find that A.B. was still using drugs. The possibility of drug use, coupled with the fact that A.B. was neglecting her children, was half-naked in bed with a strange man, was non-responsive to the social worker, claimed to have just fed breakfast to her children at 2:00 p.m., and refused to give a hair sample for a drug test after her urine sample came back diluted, all show that A.B. provided an unreasonable and unsafe environment for her children. As the trial judge stated, the "failure to cooperate with DHS further showed an indication that the conduct in controlled substances were [sic] preferred over the children."
¶ 21. Although termination of parental rights is an extreme measure that should be used sparingly, in N.E. v. L.H., 761 So.2d 956, 961-62(¶ 12) (Miss.Ct.App.2000), this Court held:
Legal custody and guardianship by persons other than the parents as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.
The N.E. court also emphasized that the children's needs, living conditions, family environment, and other circumstances must be taken into account when determining what is best for the children. Id. at 967(¶ 34). Here, the children were placed in the custody of their aunt and uncle. They were not handed over to complete strangers or put in an orphanage.
¶ 22. Having considered the factors set forth by this Court in N.E., and reviewed all of the available evidence as shown in the record, we find that there was sufficient evidence for the youth court to terminate parental rights. Accordingly, this issue is without merit.
3. Service on B.B.
¶ 23. B.B. contends that he did not receive notice or summons regarding the neglect hearing. However, the record reflects that the Lauderdale County Sheriff's Department committed a diligent search in trying to serve B.B. with notice of the adjudicatory hearing. The youth court noted that B.B. chose not to appear, even though he had knowledge of the hearing and he had been present at the prior proceedings. B.B.'s wife, A.B., also testified that she did not know his whereabouts. B.B.'s failure to appear in court, coupled with a recent arrest for methamphetamine, show his current unfitness to be a parent and his failure to eliminate prior behavior. Accordingly, this issue is without merit.
¶ 24. THE JUDGMENT OF THE YOUTH COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
*57 LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., AND ISHEE, J. ROBERTS, J., NOT PARTICIPATING.
IRVING, J., Dissenting:
¶ 25. I believe the youth court judge failed to consider all of the relevant evidence before terminating the parental rights of A.B. and B.B. The evidence that the judge failed to consider related to the progress that A.B. had made with her substance abuse problem during the period of time from the date of the neglect hearing to the date of the termination hearing. With such a glaring omission of consideration of relevant evidence regarding A.B.'s rehabilitation, I cannot agree that the judge's decision was based on clear and convincing evidence. Therefore, I dissent. I would reverse and remand this case to the youth court for consideration of all the relevant evidence.
¶ 26. All of the pertinent facts are set out in the majority opinion. Therefore, it is not necessary that I lay a factual predicate before delving into the analysis that leads me to the view that the majority errs in finding that the judge appropriately terminated A.B.'s and B.B.'s parental rights.
¶ 27. The pertinent portion of the order terminating parental rights states:
[The Respondents, A.B. and B.B.] exhibit ongoing behavior which would make it impossible to return the Minor Petitioners to said Respondents' care and custody because said Respondents have a drug addiction, unlikely to change within a reasonable time, which condition makes said Respondents unable to assume minimally, acceptable care of the Minor Petitioners constituting grounds for termination of their parental rights. ...
The Court finds that the Respondents... exhibit and have failed to eliminate ongoing behavior, identified to said Respondents by the Lauderdale County Department of Human Services, which prevents placement of the Minor Petitioners with said Respondents in spite of diligent efforts of the Department of Human Services to assist said Respondents constituting grounds for termination of their parental rights. ...
The Court finds that [Tonya, Sonya, and Ned] have been adjudicated to have been abused or neglected and custody has been transferred from [A.B. and B.B.] for placement pursuant to Section 43-15-13 of the Mississippi Code of 1972, Annotated, and a court of competent jurisdiction has determined that reunification shall not be in the Minor Petitioners' best interest, constituting grounds for termination of their parental rights. ...
¶ 28. The majority correctly notes the two-part test that a court must use when deciding whether to terminate a natural parent's parental rights: (1) "[the establishment] by `clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child,'" and (2) consideration of whether termination is in the best interest of the child. W.A.S. v. A.L.G., 949 So.2d 31, 35(¶ 10) (Miss.2007) quoting Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984). The petitioner carries the burden of persuasion, and his failure to convince the court that he has met his burden as to the first prong eliminates the court's obligation to consider the second prong. Id.
¶ 29. Mississippi Code Annotated section 93-15-103(3) (Rev.2004) specifies several grounds upon which parental rights *58 may be terminated. Clear and convincing evidence of any one of the grounds is sufficient to warrant termination. W.A.S., 949 So.2d at 35(¶ 11). The judge appeared to rely entirely on the grounds stated in sub-sections (e) and (h) which state in part:
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; [or]
* * * * * *
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child's parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child's best interest.
Miss.Code Ann. § 93-15-103(3).
¶ 30. In my opinion the court's conclusions regarding these grounds did not take into account all of the evidence available. The court ignored in its entirety evidence that A.B. had tested negative for drugs on more than one occasion since the December 30 neglect hearing. The December 30 finding of neglect also was not based on A.B.'s and B.B.'s complete inabilities to care for the children, but rather was based on A.B.'s admission that she could not care for the children while incarcerated. I note that her incarceration was due to criminal charges that were later dropped when the substance found in the house was determined not to be a controlled substance. The court did not address the fact that the charges against A.B. had been dropped. Rather, the court stated that A.B. had a drug addiction that was unlikely to be cured. I note that no evidence showing current drug use was presented to the court. The most that was presented was that A.B. had a history of prior drug use, that she had not cooperated when asked to provide a hair sample for testing, and that two different urine samples had come back diluted, meaning that they were neither positive nor negative for drug use.
¶ 31. Termination of parental rights is an extreme measure that should be used only when doing so is in the best interest of the child. It may be that the evidence presented to the court, especially that the children were unkempt on November 9 and that A.B. was in bed with a strange man, is sufficient to terminate parental rights. However, it is clear that the court should have looked at all of the evidence concerning A.B.'s alleged drug use, such as the testimony of A.B.'s parole officer and the evidence that the substance found in the house on November 30 was not actually illegal. This is especially true because the incorrect labeling of the substance as a controlled substance was why A.B. was incarcerated and unable to care for her children when the court adjudicated them neglected on December 30, 2004.
¶ 32. For the reasons presented, I dissent. I would reverse and remand this case to the Youth Court of Lauderdale County with directions to consider all of the evidence, including evidence of the progress made by A.B. with her substance *59 abuse problem from the date of the neglect hearing to the date of the parental rights termination hearing.
KING, C.J., JOINS THIS SEPARATE WRITTEN OPINION.
NOTES
[1] We use false initials for the parents to protect the identity of the minor children, to whom we have also assigned fictitious names in this case.
[2] The order was based on an affidavit executed by Snowden on November 30. In the affidavit, Snowden detailed what she found at A.B.'s home on November 9. According to Snowden, she sought the court order after the urine sample came back diluted and A.B. refused to submit to a hair screen.
[3] Later analysis of the substance revealed that it was not illegal drugs, and possession charges against A.B. resulting from the discovery of the substance were dropped.
[4] A.B. testified that she was no longer living at the home where she and the children had been living on November 9.
[5] The record indicates that A.B. was arrested on November 30 or December 1, 2004, and remained in jail on the drug charge until May 11, 2005, when the charges were dropped because the substance seized on November 30 was not a controlled substance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590178/ | 270 S.W.3d 428 (2008)
PAYROLL ADVANCE, INC., Appellant,
v.
Barbara YATES, Respondent.
No. SD 29040.
Missouri Court of Appeals, Southern District, Division One.
November 17, 2008.
*430 Jason M. Scherer, Crow, Reynolds, Shetley & McVey, LLP, Kennett, for Appellant.
Shannon Wright Morgan, Pelts, McMullan & Edington, LLP, Kennett, for Respondent.
ROBERT S. BARNEY, Judge.
Payroll Advance, Inc. ("Appellant") appeals from the judgment of the trial court entered in favor of Barbara Yates ("Respondent") on Appellant's petition for injunctive relief and breach of contract of an "Employment Agreement" ("the Employment Agreement") which contains a covenant *431 not to compete. After a bench trial, the trial court found the Employment Agreement and its non-compete covenant signed by the parties was not valid in that it was "unreasonable under the facts and circumstances of the particular industry, agreement, and geographic location here involved." Appellant asserts two points of trial court error. In its first point, Appellant maintains the trial court erred in denying its petition for permanent injunction in that the trial court "erroneously applied the law pertaining to the reasonableness and enforceability of covenants not [to] compete ..." and "the covenant not to compete should have been upheld and a permanent injunction issued." In its second point, Appellant maintains the trial court erred in denying its petition because the trial court erroneously applied the law in failing to modify the covenant not to compete to a geographic scope it found to be reasonable. We affirm the judgment of the trial court.
The standard of review for a bench-tried case is well-established in Missouri. An appellate court must sustain the decree or judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.
Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 612 (Mo. banc 2006). This Court reviews the evidence, along with all reasonable inferences, in the light most favorable to the trial court's judgment and disregards all contrary evidence and inferences. Emerald Pointe, L.L.C. v. Jonak, 202 S.W.3d 652, 658 (Mo. App.2006). As the trier of fact, the trial court determines the credibility of witnesses and is free to believe or disbelieve all or part of the witnesses' testimony. Id.
Viewing the evidence in the light most favorable to the trial court's judgment, id., the record reveals that Appellant, a foreign corporation, is licensed to transact business in the State of Missouri and has numerous locations throughout the state, including a branch located in Kennett, Missouri.[1] It is customary for each of Appellant's branch offices to employ a sole employee at each branch and that sole employee is typically referred to as the manager of that particular branch. In June of 1998, Respondent was hired as the manager of the branch office in Kennett. On November 19, 1999, as a condition of her continued employment, Appellant presented Respondent with the Employment Agreement which included, inter alia, a provision entitled "NON-COMPETE" ("the covenant not to compete"). This provision set out:
[Respondent] agrees not to compete with [Appellant] as owner, manager, partner, stockholder, or employee in any business that is in competition with [Appellant] and within a 50 mile radius of [Appellant's] business for a period of two (2) years after termination of employment or [Respondent] quits or [Respondent] leaves employment of [Appellant].
Respondent was employed with Appellant from June of 1998 through November 8, 2007, when Respondent was apparently fired for cause.
Approximately thirty-two days after being terminated by Appellant, Respondent *432 became employed with Check Please, one of the approximately fourteen other payday loan establishments in the area. At Check Please, Respondent performed basically the same duties such as office management and customer care as she had when employed with Appellant.
On February 7, 2008, Appellant filed its "First Amended Petition for Injunctive Relief and Breach of Contract." In this petition, Appellant brought Count I for injunctive relief to prevent Respondent from soliciting its clients for her new employer, and to stop her from using client information she purportedly obtained from her time with Appellant. Count II of the petition was for damages for breach of contract for violation of the covenant not to compete together with attorney fees and costs.
The matter was tried to the court on February 7, 2008. At trial, Virginia Holloway ("Ms. Holloway"), Appellant's Chief Executive Officer, testified that she "maintain[s] the books" and "basically run[s] the company," but that the individual branch managers dealt with the clients and actually issued the loans.[2] She related that branch managers, such as Respondent, directly contacted each customer; personally saw customers each time they were in the office; and developed a rapport and relationship with each client. Ms. Holloway also related that Appellant maintained client lists which detailed personal client information and that a large portion of their business was based on repeat customers. She further testified that Respondent would have had access to these client lists as part of her day-to-day job, but that she had no knowledge that Respondent had either taken client lists with her when she was fired or contacted any of Appellant's clients since her termination. She related she personally fired Respondent and when Respondent left the office on that date she did not take anything with her.
Additionally, Ms. Holloway testified that since Respondent left Appellant's employ there had been a downturn in the amount of loans occurring in the Kennett office such that the number of clients has decreased from 141 to 99 and the accounts receivable has fallen from $74,254.53 to $46,927.78; however, she stated that the only evidence she had that the downturn in business was related to Respondent's departure was the "lack of the return customers that [Appellant has] had for a long time...." She did, however, admit it was not uncommon for clients to utilize several agencies and have more than one loan out at a time.
Respondent testified she knew she had signed the Employment Agreement which contained the covenant not to compete, but she thought the document was "vague," because it stated she could not be employed in "any business that is in competition with [Appellant] and within a 50-mile radius ... [i]t really doesn't state payday loans, it says any business that is in competition." (Emphasis added.) She stated that the covenant not to compete would require her to take a position out of state or at least a long way from her present home. She felt such a requirement was "absolutely not" reasonable based on the type of business she had experience in and the opportunities in her small community. She admitted that she was reminded of the covenant not to compete when she was terminated by Appellant and that Appellant's representative told her she "ha[d] been warned" they would pursue the terms of the covenant not to compete if she went *433 to work for a competitor. After being fired, she related she was turned down for unemployment benefits and began immediately looking for new employment. She stated after several weeks of looking for a job she was contacted by the owner of Check Please, who was also a former employee of Appellant. He offered her a job and she accepted the position. She stated she was the only person in her family working and she would work wherever she could get a job regardless of any ramifications of the covenant not to compete. She admitted that Check Please was in competition with Appellant, but she stated that she took her new position because she had been unable to find another job.
Respondent also maintained that any decline in business which followed her departure from Appellant was not related to her new employment at a competing business as asserted by Ms. Holloway. She related that the payday loan business is "seasonal" with January and February being slow months. She stated that around Christmas time people get bonuses and often don't need loans or, if they do need loans, they are busy paying off their loans. Additionally, she stated that her job with Appellant was "highly clerical" in nature and basically consisted of helping clients fill out the loan applications. She stated she did not feel like she developed "really personal relationships" with any of Appellant's clients other than small talk during the processing of their loans and she never had "contact outside the business" with any of Appellant's clients. She felt any relationships she had with clients were purely "business relationships."
Respondent also asserted she did not take any client lists with her when she was terminated from Appellant and she did not openly contact any clients after her departure. She stated her present employer shares numerous clients with Appellant, but she "didn't call anybody or attempt to call anybody" in an effort to take business from Appellant. She related that clients are limited to having one loan at each payday loan agency and so many clients "go to various payday loan places." Further, she stated she had lived in Kennett for a significant period of time and had numerous community contacts other than those she met while employed with Appellant.
On February 14, 2008, the trial court entered its judgment which found "[n]o evidence exists that, following [Appellant's] termination of [Respondent's] ten year period of employment, [Respondent] removed any customer list or other documents from [Appellant's] place of business [or] ... made any personal or other contact with any previous or present customer of [Appellant's] business or intends to do so." The trial court further determined that that if the covenant not to compete was enforced as requested, Respondent
will be prohibited from engaging in employment with any payday loan business in at least 126 cities situated in Missouri, Arkansas and Tennessee ([p]resumably [Respondent] also would be prohibited from such employment within a 50-mile radius of [Appellant's] 17 other locations scattered throughout the State of Missouri. Further, [Respondent] arguably also would be prohibited from employment at a bank, savings and loan company, credit union, pawn shop or title-loan company, credit union, pawn shop or title-loan company within such geographical areas....)
Accordingly, in its discretion, the trial court found "the above result would be unreasonable under the facts and circumstances of the particular industry, agreement, and geographic location here involved." The trial court then ruled in favor of Respondent and against Appellant. *434 The trial court also denied Respondent's request for attorney's fees and costs. This appeal followed.
In its first point relied on, Appellant maintains the trial court erred in denying its "petition for permanent injunction" in that the trial court "erroneously applied the law pertaining to the reasonableness and enforceability of covenants not [to] compete...." Specifically, Appellant asserts the covenant not to compete "was breached by Respondent ... and [Appellant] suffered the potential of irreparable harm and, therefore, the covenant not to compete should have been upheld and a permanent injunction issued."
"Generally, because covenants not to compete are considered to be restraints on trade, they are presumptively void and are enforceable only to the extent that they are demonstratively reasonable." Easy Returns Midwest, Inc. v. Schultz, 964 S.W.2d 450, 453 (Mo.App.1998); see Armstrong v. Cape Girardeau Physician Assoc., 49 S.W.3d 821, 825 (Mo.App.2001). "Noncompetition agreements are not favored in the law, and the party attempting to enforce a noncompetition agreement has the burden of demonstrating both the necessity to protect the claimant's legitimate interests and that the agreement is reasonable as to time and space." Healthcare Servs., 198 S.W.3d at 609-10.
There are at least four valid and conflicting concerns at issue in the law of non-compete agreements. First, the employer needs to be able to engage a highly trained workforce to be competitive and profitable, without fear that the employee will use the employer's business secrets against it or steal the employer's customers after leaving employment. Second, the employee must be mobile in order to provide for his or her family and to advance his or her career in an ever-changing marketplace. This mobility is dependent upon the ability of the employee to take his or her increasing skills and put them to work from one employer to the next. Third, the law favors the freedom of parties to value their respective interests in negotiated contracts. And, fourth, contracts in restraint of trade are unlawful.
Id. (internal citations omitted). "Missouri courts balance these concerns by enforcing non-compete agreements in certain limited circumstances." Id. "Non-compete agreements are typically enforceable so long as they are reasonable. In practical terms, a non-compete agreement is reasonable if it is no more restrictive than is necessary to protect the legitimate interests of the employer." Id. Furthermore, "[n]on-compete agreements are enforceable to the extent they can be narrowly tailored geographically and temporally." Id. Saliently, "such restrictions are not enforceable to protect an employer from mere competition by a former employee, but only to the extent that the restrictions protect the employer's trade secrets[[3]] or customer contacts."[4]*435 Healthcare Servs., 198 S.W.3d at 610 (emphasis added). Lastly, it is not "necessary for the employer to show that actual damage has occurred, in order to obtain an injunction. The actual damage might be very hard to determine, and this is one reason for granting equitable relief." Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 75 (Mo. banc 1985).
Here, viewing the evidence in a light most favorable to the trial court's holding, Emerald Pointe, 202 S.W.3d at 658, it is clear the trial court took umbrage with the covenant's restrictive provisions and geographical limitations on Respondent's ability to find employment.
While Appellant cites this Court to numerous cases where a geographic restriction of 50 miles has been deemed reasonable, the case law clearly requires that such restrictions must be viewed under the specific circumstances of each case. To be valid and enforceable, a covenant not to compete must be reasonable as to time and space, because such clauses limit the exercise and pursuit of an individual's occupation and are in restraint of trade. Osage Glass, 693 S.W.2d at 73-4. It has long been held that "[t]emporary and spatially limited restraints on a former employee's ability to compete ... are enforceable if reasonable under all attending circumstances and if enforcement serves the employer's legitimate interests." AEE-EMF, Inc. v. Passmore, 906 S.W.2d 714, 719 (Mo.App.1995). As stated in R.E. Harrington, Inc. v. Frick, 428 S.W.2d 945, 950 (Mo.App.1968):
The question of reasonableness of a restraint is to be determined according to the facts of the particular case and hence requires a thorough consideration of all surrounding circumstances, including the subject matter of the contract, the purpose to be served, the situation of the parties, the extent of the restraint, and the specialization of the business.
See also Sturgis Equip. Co. v. Falcon Indus. Sales Co., 930 S.W.2d 14, 17 (Mo.App. 1996) (holding that courts must examine the circumstances surrounding each covenant not to compete "including its subject matter, the purpose it serves, the situation of the parties, the limits of the restraint, the specialization of the business involved, the consideration supporting the restraint, the threatened danger to the employer absent the restriction, and the economic hardship imposed on the employee"). In determining reasonableness, the standard is whether the geographic scope of the restrictive covenant is "`no greater than fairly required for protection.'" Systematic Bus. Servs., Inc. v. Bratten, 162 S.W.3d 41, 50 (Mo.App.2005) (quoting Schott v. Beussink, 950 S.W.2d 621 (Mo. App.1997)). Protection of a former employer's legitimate business interests and "not punishment of the former employee is the essence of the law." Healthcare Servs., 198 S.W.3d at 611. "The burden of demonstrating the covenant's validity is on the party seeking to enforce it." Armstrong, *436 49 S.W.3d at 825; see also AEE-EMF, 906 S.W.2d at 719.
Here, the covenant not to compete grandly declares that Respondent cannot "compete with [Appellant] as owner, manager, partner, stockholder, or employee in any business that is in competition with [Appellant] and within a 50 mile radius of [Appellant's] business...." (Emphasis added.) There was evidence from Appellant's representative at trial that Appellant has seventeen branch offices in Missouri and still other locations in Arkansas. If this Court interprets the plain meaning of the covenant not compete as written, the covenant not to compete would prevent Respondent not only from working at a competing business within 50 miles of the branch office in Kennett, Missouri, but Respondent would also be barred from working in a competing business within 50 miles of any of Appellant's branch offices. Under this interpretation, Respondent would be greatly limited in the geographic area she could work.
Additionally, the covenant not to compete bars Respondent from working at "any business that is in competition with [Appellant]." Yet, it fails to set out with precision what is to be considered a competing business and certainly does not specify that it only applies to other payday loan businesses. In that Appellant is in the business of making loans, it could be inferred that in addition to barring Respondent's employment at a different payday loan establishment the covenant not to compete also bars her from being employed anywhere loans are made including banks, credit unions, savings and loan organizations, title-loan companies, pawn shops, and other financial organizations. Such a restraint on the geographic scope of Respondent's employment and upon her type of employment is unduly burdensome and unreasonable. See Healthcare Servs., 198 S.W.3d at 609-10.
Further, as previously related, we not only look to the actual terms of the covenant not to compete, but to the impact on Respondent herself. See AEE-EMF, 906 S.W.2d at 719; R.E. Harrington, 428 S.W.2d at 950. Here, Respondent testified she was employed with Appellant for a period of nine years and that, although she had experience in other areas, she was unable to find a job in Kennett in a business other than another payday loan establishment. She related she was the only person able to work in her family and when approached by Check Please with a comparable position to that which she previously had, she took the job because she needed the income. There is evidence supporting the trial court's determination that requiring Respondent to comply with the geographic limitation and the type of employment she was permitted under the covenant not to compete would greatly restrict her ability to provide for her family and clearly be a restraint on her future employment. Having considered "the facts of the particular case and ... all surrounding circumstances ...," R.E. Harrington, 428 S.W.2d at 950, this Court finds no error in the trial court's denial of Appellant's request for a permanent injunction per the terms of the covenant not to compete. Point One lacks merit.
Appellant's second point relied on asserts the trial court erred in denying its petition because
[t]he trial court erroneously applied the law in failing to modify the covenant not to compete to a geographic scope it found to be reasonable in that the court found the geographic scope to be unreasonable for the payday loan industry but failed to modify the covenant not to compete to reflect a geographic scope that would be reasonable and enforceable.
*437 We recognize that "[t]he ordinary rules of contractual construction and enforcement are not necessarily applicable to non-compete agreements." AEE-EMF, 906 S.W.2d at 719. Further, in the past numerous courts have limited and affirmed modifications by trial courts of covenants not to compete where the restrictions set out in the covenants were broader than necessary. See Mid-States Paint & Chemical Co. v. Herr, 746 S.W.2d 613, 616 (Mo.App.1988); Orchard Container Corp. v. Orchard, 601 S.W.2d 299, 303 (Mo.App. 1980); R.E. Harrington, 428 S.W.2d at 950. This Court "recognize[s] that an unreasonable restriction against competition in a contract may be modified and enforced to the extent that it is reasonable, regardless of the covenant's form of wording." Mid-States Paint, 746 S.W.2d at 616. We are not convinced, however, that a trial court is compelled to take action to modify an agreement it finds broader than necessary. "The issuance and terms of an injunction rest `largely in the sound discretion of the trial court, which is vested with a broad discretionary power to shape and fashion the relief it grants to fit particular facts, circumstances and equities of the case before it.'" Id. (quoting May Dept. Stores Co. v. County of St. Louis, 607 S.W.2d 857, 870 (Mo.App.1980)). This is particularly the case where, as here, a party has not raised the issue before the trial court.
Having reviewed the record in this matter, it appears the record is devoid of a request by Appellant for modification of the covenant not to compete either in its pleadings, at trial, or in its motion for new trial before the trial court. It is settled law that "`appellate courts are merely courts of review for trial court errors, and there can be no review of matter which has not been presented to or expressly decided by the trial court.'" Roberson v. Weston, 255 S.W.3d 15, 19 (Mo.App.2008) (quoting Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo.1959)).
Appellant urges in its reply brief that this issue was, indeed, preserved for appeal by the request in its petition for "such other and further relief as the Court may deem just and proper" and in support of this proposition cites the Court to Jerry Bennett Masonry, Inc. v. Crossland Const. Co., 171 S.W.3d 81, 91 (Mo.App.2005). In Jerry Bennett Masonry, a prevailing subcontractor did not expressly request statutory interest pursuant to the provisions of section 408.020, RSMo 2000, but did pray in its petition "`for such other and further relief as the Court may deem just and proper.'" Id. This Court observed that "`an express allegation seeking prejudgment interest is not a prerequisite to an award of such interest'" and found that the subcontractor's claim and prayer satisfied the statutory requirement. Id. (quoting Dierker Assocs., D.C., P.C. v. Gillis, 859 S.W.2d 737, 746 (Mo.App.1993)) (emphasis added).[5] Here, the relief Appellant requests does not pertain to an award of prejudgment interest as in Jerry Bennett Masonry, 171 S.W.3d at 91, or Dierker, 859 S.W.2d at 746. In the present matter, the issue of modification of the covenant not to compete was simply not before the trial court. "`An issue that was never *438 presented to or decided by the trial court is not preserved for appellate review.'" Roberson, 255 S.W.3d at 19 (quoting VanBooven v. Smull, 938 S.W.2d 324, 330 (Mo. App.1997)). Point Two is denied.
The judgment of the trial court is affirmed.
BATES, J. and SCOTT, P.J., concurs.
NOTES
[1] Appellant is "a payday loan company. [It] gives loans to clients out in the community." As best we discern the record, loans are made for short periods of time at high rates of interest. Appellant's manager testified that a payday loan company such as Appellant's is not like a bank because banks "normally [do not do] short-term loans." She also distinguished Appellant's entity from a title loan company or a debt consolidation concern.
[2] Ms. Holloway testified that Appellant has seventeen branch locations in Missouri, including the office in Kennett, as well as branch offices in Arkansas and other states.
[3] A trade secret "can be `any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.'" Kessler-Heasley Artificial Limb Co. v. Kenney, 90 S.W.3d 181, 188 (Mo.App.2002) (quoting National Rejectors, Inc. v. Trieman, 409 S.W.2d 1, 18-19 (Mo. banc 1966)). "Evidence of purported `trade secrets' must be more than general assertions, but must be sufficiently specific to allow a determination by the court." Healthcare Servs., 198 S.W.3d at 611. "The burden of proof rests upon an employer to substantiate its asserted interest in its trade secrets." Id.
[4] "A customer is one who repeatedly has business dealings with a particular tradesman or business." Kessler-Heasley, 90 S.W.3d at 186. "Before an employer can claim to have a protectable interest in its customer contacts, the employer must have a stock of customers who regularly deal with the employer." Id. "`[T]he quality, frequency and duration of employee's exposure to the customers is of crucial importance in determining the reasonableness of the restriction.'" Easy Returns, 964 S.W.2d at 453 (quoting Cont'l Research Corp. v. Scholz, 595 S.W.2d 396, 400 (Mo. App. 1980)). However, "`[t]o be protected a customer list must be more than a listing of firms or individuals which could be compiled from directories or other generally available sources.'" Kessler-Heasley, 90 S.W.3d at 188 (quoting Empire Gas Corp. v. Graham, 654 S.W.2d 329, 331 (Mo.App. 1983)). "Only when it represents a selective accumulation of information based on past selling experience, or when considerable time and effort have gone into compiling it, will appropriation and use in competition by the former employee be enjoined." Id.
[5] The court in Dierker, 859 S.W.2d at 746, cited to Addison v. Jester, 758 S.W.2d 454 (Mo.App. 1988), for the proposition that "an express allegation seeking prejudgment interest is not a prerequisite to an award of such interest." This is because as Addison, 758 S.W.2d at 460, explained, "[t]he allowance of prejudgment interest is not, however, dependent on an express petition allegation seeking that relief." "It is not necessary for evidence to be presented or for a jury to be instructed on the subject where prejudgment interest is only a matter of mathematical computation." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593250/ | 45 F.Supp. 664 (1942)
UNITED STATES
v.
ROSEBUSH et al.
Civil Action No. 5079.
District Court, E. D. Wisconsin.
June 26, 1942.
*665 George H. Zeutzius, Sp. Asst. to Atty. Gen., for plaintiff.
David L. Fulton, of firm of Benton, Bosser, Becker & Parnell, of Appleton, Wis., for defendants.
SCHWELLENBACH, District Judge.
This matter is before the court now on the amended complaint against the additional defendant. Judgment upon the original complaint against defendant, in the amount of $37,220.85, has been entered. The purpose of this phase of this action is to subject certain securities now owned and held by the additional defendant to execution under the previously entered judgment. The defendant and additional defendant are husband and wife. The judgment against the defendant is based upon a deficiency assessed against him for income taxes due for the calendar year 1928. The return for that year was signed by the defendant and designated by him as a joint return. No deficiency was ever assessed against the additional defendant. The matter went to the Board of Tax Appeals after the assessment of the deficiency. On October 16, 1933, it upheld the position of the Commissioner of Internal Revenue. The assessment appeared on the Commissioner's February, 1934, assessment list. This list was received by the Collector at Milwaukee on February 18, 1934. On February 27, 1934, written notice and demand for payment was served upon the defendant. The second notice was served on March 23, 1934. On April 14, 1934, a warrant for distraint was issued. On April 20, 1934, a notice of tax lien was filed and recorded with the Register of Deeds for Outagamie County, at Appleton, Wisconsin. On December 17, 1934, a similar notice of tax lien was filed with the Register of Deeds in Iron County, Michigan. From time to time between April 30, 1934, and January 15, 1936, under arrangements with the Collector of Internal Revenue at Milwaukee, the defendant paid on the tax liability amounts ranging from $100 to $200 a month.
In 1932 the defendant borrowed from the Northern Paper Company the sum of $250,000, and as security therefor deposited with the company stocks and other securities, owned by the additional defendant, which at that time had a fair value of $220,000. On October 7, 1935, the Northern Paper Company foreclosed its pledge, sold all of the securities so deposited, and took a deficiency against the defendant in the amount of $100,000. On the same day *666 the defendant transferred to the additional defendant the stocks and securities which are the subject matter of this phase of the action. He also executed to her a promissory note in the amount of $194,000. The evidence does not disclose the domicile of any of the corporations whose stocks were delivered. As to some of the corporations, the certificates were surrendered to the issuing corporations and new certificates were issued in the name of the additional defendant. The others were endorsed in blank and transferred by the defendant from his portfolio to his wife's portfolio in their joint safety deposit box. The evidence discloses that the accounts of each of the parties were kept in journals and that entries were made in the journals as to the transfer of title of these securities. It is not disputed that from as far back as 1910 the defendant transacted all of the additional defendant's business, acting under a very broad power of attorney executed to him by her on May 28, 1910. The status of the securities thus transferred on October 7, 1935, has remained unchanged with one exception. Included among the stocks was that of the Exchange National Bank of Spokane, Washington. An assessment had been levied against that stock while the bank was in receivership. The shareholders' agent of that bank is paying dividends to the shareholders. The defendant was indebted to the Investment and Securities Company of Spokane, Washington, in the approximate amount of $77,000. On July 27, 1937, he assigned his claim against the shareholders' agent of the Exchange National Bank to the Investment and Securities Company, subject to the right, if any, of the United States Government under the tax lien involved here. The evidence does not disclose what procedure was adopted by which the defendant regained control over this claim; nevertheless he exercised it in his own name, and it is clear that funds which may be received from the shareholders' agent belong either to the plaintiff or to the Investment and Securities Company of Spokane, Washington.
The lien of the tax arose with the filing of the assessment list with the Collector of Internal Revenue at Milwaukee on February 18, 1934. Sec. 3186, Rev. Stat., as amended by Sec. 613, Revenue Act 1928, Sec. 509, Revenue Act 1934, 26 U.S. C.A. Int.Rev.Code, § 3671. It became effective as against mortgagee, purchaser, or judgment creditors when filed and recorded with the Register of Deeds for Outagamie County, Wisconsin, on April 20, 1934. Idem. However, by the amendment of June 29, 1939, such lien was not valid with respect to a security "as against any mortgagee, pledgee, or purchaser, of such security, for an adequate and full consideration in money or money's worth, if at the time of such mortgage, pledge, or purchase such mortgagee, pledgee, or purchaser is without notice or knowledge of the existence of such lien." 26 U.S.C.A. Int. Rev.Code, § 3672(b) (1). The additional defendant, in her verified answer, denied that she had notice of the lien on October 7, 1935. She did not testify at the trial. The defendant did testify that he had no knowledge of the filing of the notice of lien with the Recorder of Deeds until after January, 1936. Plaintiff submitted no testimony on this point. Plaintiff's counsel conceded, in oral argument upon inquiry by the court, that plaintiff had the burden of proof upon this question. That being true, a finding must be made that there is no proof that the additional defendant had such knowledge at the time of the transfer of the securities.
Plaintiff's position is that it is entitled to subject these securities to its judgment on the theory that the additional defendant was liable for the amount of the deficiency assessment, this because the husband filed a joint return. The plaintiff contends that a joint return by the husband creates joint and several liability as against both the husband and the wife. In 1938 the Congress recognized the desirability of such a contention by amending the law to so provide. 52 Stat. 447, 476, 26 U.S. C.A. Int.Rev.Code, § 51. The Supreme Court in Helvering v. Janney, 311 U.S. 189, 61 S.Ct. 241, 85 L.Ed. 118, 131 A.L.R. 980, and Taft v. Helvering, 311 U.S. 195, 61 S.Ct. 244, 85 L.Ed. 122, in passing upon related questions, used language from which it could almost conclusively be assumed that if the problem were before the court, it would so hold. Relying upon the language of the two decisions, the Board of Tax Appeals in Schoenhut v. Commissioner, 45 B.T.A. 812, 821, and the Court of Claims in Moore v. United States, 37 F.Supp. 136, 137, abandoned the rule against joint and several liability which had been enunciated by the Circuit Courts of Appeals in Crowe v. Commissioner, 7 Cir., 86 F.2d 796; Sachs v. Commissioner, *667 6 Cir., 111 F.2d 648; Cole v. Commissioner, 9 Cir., 81 F.2d 485, 104 A.L.R. 420; and Commissioner v. Rabenold, 2 Cir., 108 F.2d 639. The Court of Claims and the Board of Tax Appeals are privileged to take this position; they are justified in so doing in the light of the language of the Supreme Court in the Taft and Janney cases. However, this precise question was presented to the Circuit Court of Appeals for the Seventh Circuit and it decided adversely to the plaintiff's position here. Crowe v. Commissioner, supra. It does not lie within my province, sitting in a District Court within the Seventh Circuit, to do other than to follow that decision. The Crowe case is binding upon this court until it has been overruled by the court which decided it or until the Supreme Court specifically has decided otherwise.
Furthermore, the sustaining of plaintiff's position on this question would avail the plaintiff nothing. There never was a deficiency assessment against the additional defendant. The statutory period within which such an assessment could have been levied is three years after the filing of the return. 26 U.S.C.A. Int.Rev.Code, § 275(a). Furthermore, this is not an action for the purpose of establishing a liability for a judgment on the deficiency against the additional defendant. Nowhere in either the complaint or the amended complaint is it alleged that the additional defendant owed the amount of this tax. So far as the additional defendant is concerned, this is a discovery action having as its purpose the subjection of the involved securities to execution under the judgment against the defendant.
There remains for decision only the question whether the additional defendant was protected in her rights to these securities by virtue of having received them without notice of the lien. Is she a purchaser without notice or knowledge of the existence of the lien, as contemplated by the statute? 26 U.S.C.A. § 3672(b) (1). To be within this classification, she must be a bona fide purchaser. United States v. Maniaci, D.C., 36 F.Supp. 293; Report of Committee on Ways and Means, House of Representatives, 76th Cong., 1st Session, No. 855. p. 26. Since the word "purchaser" is not defined by the statute, this court must turn to the State law in determining its meaning. Metropolitan Life Ins. Co. v. United States, 6 Cir., 107 F.2d 311; MacKenzie v. United States, 9 Cir., 109 F.2d 540. The relinquishment of a debt by the seller constitutes a consideration. Pauly v. Schultz, 199 Wis. 107, 225 N.W. 745. The term "purchaser" embraces every person to whom any interest or estate shall be conveyed for a valuable consideration. Butler v. Bank of Mazeppa, 94 Wis. 351, 68 N.W. 998. A valuable consideration may consist in either some right, interest, profit, or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other. Onsrud v. Paulsen, 219 Wis. 1, 261 N.W. 541. The transfer of possession of the stock, although unrecorded on the books of its issuing corporation, conveys the interest of the holder. 13 Amer.Juris. 427. The essence of the transfer is the intent of the owner to transfer the title and ownership. To determine this intent the court is entitled to take into consideration the circumstances surrounding the transaction. Holmes v. Holmes, 182 Wis. 163, 196 N.W. 248.
There can be no doubt in this case that the defendant did on October 7, 1935, transfer to the additional defendant all of the stock and securities mentioned in the plaintiff's bill of complaint and the stipulation of facts filed with the court, with the exception of the certificate of assessment of the Exchange National Bank of Spokane, Washington. Consequently this action as against the additional defendant must be dismissed as to all of the stock and securities, except that particular certificate. The dividends of that certificate are the subject of litigation in another case, so as to them all that can be done is to exclude them from the judgment to be entered herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919203/ | 912 So.2d 336 (2005)
Ward L. HUET and Joan Huet, his Wife, Petitioners,
v.
Hillary TROMP and Andre Tromp, her Husband, Respondents.
No. 5D05-628.
District Court of Appeal of Florida, Fifth District.
September 9, 2005.
Rehearing Denied October 10, 2005.
*337 Christopher L. Casey and H. Keith Thomerson of Hinshaw & Culbertson, Jacksonville, for Petitioners.
Robert C. Gobelman and Michael D. Kendall of Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville, for Respondent.
SHARP, W., J.
Ward L. and Joan Huet, petitioners, seek certiorari review of a discovery order that denied their motion for a protective order and permitted Hillary and Andre Tromp, respondents below, to conduct the depositions duces tecum of three persons who performed investigations and surveillance on the activities and injuries of Hillary Tromp. The Huets contend this discovery order is a departure from the essential requirements of the law because the information and documents sought to be discovered are the results of their investigations pending this litigation and therefore they are protected by the work-product privilege. We agree and issue the writ.
This case arose out of a suit filed by the Tromps for damages allegedly suffered by Hillary Tromp, in an automobile accident in which Ward Huet was the driver. He admitted fault and liability and the sole issue for trial was damages. In preparation for the trial, the Huets hired two private investigative firms, Mulholland Investigation and Security Consulting, Inc. (Mulholland), and American Investigative Support (American), to investigate Hillary's injuries and conduct surveillance on her activities.
Pursuant to the trial court's order setting jury trial and directing pre-trial procedure, the Huets served the Tromps with a defendants' witness list. It included the names of Victor Land and William Burns with Mulholland, and Scott Mullenix, with American. Ultimately the Huets decided not to call these investigators as witnesses and they informed the Tromps of that fact.
The Tromps then served three notices of taking the depositions duces tecum on Burns, Land and Mullenix. The Huets moved for a protective order, asserting they did not intend to call the investigators as witnesses nor use any of the materials generated by them. They argued that the depositions duces tecum of these investigators would violate the work-product privilege doctrine.[1]
On February 16, 2005, the trial court denied the Huets' motion on the ground that the investigators were listed on the Huets' witness list, and thus the Tromps were entitled to depose them. However, the trial court made no determination, sight unseen, about whether the witnesses could be deposed based on their knowledge of the case, relying on Cotton States Mutual *338 Insurance Co. v. Turtle Reef Assoc., Inc., 444 So.2d 595 (Fla. 4th DCA 1984). That case held that the work product privilege attaches to statements and materials prepared by a party's investigator or insurer, if they were prepared in contemplation of litigation. In order to make that determination, the trial court had to inspect the contents of the insurer's investigator's file.
The Huets filed an amended witness list on February 17, 2005, which omitted the three investigators as witnesses. Again the Tromps served notices of taking a deposition duces tecum on the three investigators. The Huets moved for an emergency rehearing of the denial of their motions for a protective order, asserting that their amended witness list no longer included the investigators' names. The trial court denied the motion, but stayed the discovery pending the disposition of this petition by this court. That is the order for which the Huets now petition this court for certiorari review.
Certiorari is the appropriate remedy when a discovery order departs from the essential requirements of the law, and thus causes material injury to the petitioner, without any effective remedy on appeal. Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla.1999). Discovery of material protected by privilege or work product may cause irreparable injury because the erroneous discovery is deemed "cat-out-of-the-bag," in nature. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995).
The Huets contend that the discovery sought is protected as work-product because the Huets no longer plan to call the investigators as witnesses, and they were retained by them expressly to prepare for this litigation. The Tromps argue that there is no statute or rule that protects private investigators and their visual observations, investigations and conversations because they do not fit the definition of work product in Florida Rule of Civil Procedure 1.280(b)(3). The rule expressly covers "documents and tangible things ... prepared in anticipation of litigation or for trial." See State v. Castellano, 460 So.2d 480 (Fla. 2d DCA 1984). That case held that a mediator's observations of a person charged with a crime, in a mediation session, was not privileged under any statute or rule.
Information relating to a matter which is the subject of litigation, which is received by a party's attorneys from investigators and adjusters in anticipation of or in connection with litigation, is protected by the work product privilege. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426 (Fla.1952); Federal Express Corp. v. Cantway, 778 So.2d 1052 (Fla. 4th DCA 2001). An investigator employed by a party may not be required to produce the work-product of his or her investigations, except in unusual circumstances constituting compelling necessity for the discovery in order to reach the merits of the cause. See Cavalere v. Graham, 423 So.2d 428 (Fla. 5th DCA 1982).
However, a party may waive the work product privilege with respect to matters covered by an investigator's anticipated testimony when a party elects to present the investigator as a witness. See United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
In American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981), rev. denied, 415 So.2d 1359 (Fla.1982), this court held that a waiver of work-product privilege had occurred, relying in part on Dodson v. Persell, 390 So.2d 704 (Fla.1980). In that case, the Florida Supreme Court held that the contents of surveillance films and materials are subject to discovery in every instance where they are intended to be *339 presented at trial, either for substantive, corroborative or impeachment purposes. The court reasoned that if materials are to aid counsel in trying a case, they are work product, but any work product privilege that existed ceases once the materials or testimony are intended for trial use. See 5500 North Corp. v. Willis, 729 So.2d 508 (Fla. 5th DCA 1999). See also Alamo Rent-A-Car v. Loomis, 432 So.2d 746 (Fla. 4th DCA 1983); Wackenhut Corp. v. Crant-Heisz Ent., Inc., 451 So.2d 900 (Fla. 2d DCA 1984).
The first order denying the Huets' motion for a protective order rendered February 16, 2005, was correctly decided because the Huets had included these investigators on their witness lists, and indicated they intended to call them to present testimony and evidence at trial. See Persell; Ellis. The controlling issue here, however, is the efficacy of the Huets' subsequent attempt to solve their problem by filing an amended witness list which removed any reference to the three investigators and then filing a motion for rehearing, arguing a change of circumstances.
We elect to treat this motion as a motion for reconsideration, in light of a change of circumstances.[2] In a case similar to this, the court in National Enterprises, Inc. v. Martin, 679 So.2d 331 (Fla. 4th DCA 1996), reversed an order denying rehearing. In that case, the trial court dismissed a claim for a deficiency judgment because a party did not introduce evidence of an ownership interest in the form of a note or assignment from the FDIC. The party moved for rehearing, attaching as an exhibit an assignment from the FDIC, establishing its interest in the subject of the foreclosure. The fourth district held that the written assignment attached to the motion for rehearing established the party's interest and supplied the essential element, the absence of which was the basis for the earlier dismissal.
That is, in essence, what occurred here. Having struck the three investigators from the witness list, the Huets cured the basis for the prior ruling. The trial court was placed in the position it had declined to address before. Can the witnesses be deposed as to "fact" work product? See State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986) ("fact" work product is subject to discovery only after a showing of need).
Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege. Furthermore, the Tromps cannot obtain indirectly what they cannot obtain directly by merely labeling the contents of the investigators' reports as "observations." The investigators' "observations" are the equivalent of any documents or *340 reports they may have generated in the course of their investigations and are discoverable only under the conditions in rule 1.280(b)(3).[3] As the court in Alachua General Hospital v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981) explained:
It is clear that communications, reports, memoranda, etc., prepared in anticipation of litigation and passing between a client and his attorney, and/or their employed investigators, are work product. An investigator cannot properly be required, in a discovery deposition, to reveal the contents of such communication or reports relating to the circumstances of the incident or his investigation thereof, absent proof of the adverse party's need and inability to obtain the materials without undue hardship. (emphasis added)
403 So.2d at 1088.
Likewise, the investigators' "observations" are the equivalent of the contents of any video tapes they may have prepared in the course of their investigation. In Dodson, the Florida Supreme Court held that if surveillance movies or photographs will not be used as evidence, the contents are discoverable only upon a showing of exceptional circumstances:
[I]n limited instances, the contents of surveillance materials that are not intended to be submitted as evidence are subject to discovery if they are unique and otherwise unavailable, and materially relevant to the cause's issues. An example is a photograph of a scene which has been changed or cannot be reproduced. (footnote omitted) The philosophy of this type of discovery was clearly expressed in Hickman v. Taylor, [329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)] where the Court stated:
We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty.
329 U.S. at 511, 67 S.Ct. at 394.
This type of discovery, however, is of limited application. Clearly, one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.
390 So.2d at 707-708.
Even if we were to assume the investigators' observations were considered merely "facts" as opposed to work product, *341 Rule 1.280(b)(4)(B) provides that a party may discover facts known by an expert retained in anticipation of litigation only upon a showing of exceptional circumstances:
(4)(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) [not applicable here] or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
In Gilmor Trading Corp. v. Lind Electric, Inc., 555 So.2d 1258 (Fla. 3d DCA 1990), the court rejected the notion that experts retained by one party were fact witnesses who could be deposed by the opposing party. In that case, Gilmor filed suit against Lind for damages arising from a fire on Gilmor's business premises, which allegedly was caused by Lind. Gilmor's counsel hired two experts who did some work, but then were directed to close their files. Gilmor did not intend to call these experts at trial. Nevertheless, Lind moved to compel the taking of the experts' depositions and the motion was granted. Gilmor then petitioned for a writ of certiorari to review that order.
On review, the court noted that where an expert has been hired in anticipation of litigation, but was not expected to be called as a witness, the facts known or opinions held by the expert are deemed to be work product and may be discovered only upon a showing of exceptional circumstances, as provided in rule 1.280(b)(4)(B). The court found Lind had not demonstrated the necessary exceptional circumstances to justify invading the work-product immunity and granted certiorari.
In granting relief to Gilmor, the court also rejected Lind's argument that the experts were merely "fact" witnesses:
Lind's initial argument, that Gilmor's not-to-be-called experts are actually fact witnesses, is without basis. Lind's claim that these experts should be deemed to be in the category of treating physicians, see Sipes v. United States, 111 F.R.D. 59 (S.D.Cal.1986), is inapposite. There is no showing whatsoever that the experts performed any services in "treatment," i.e., maintenance or repair of the damaged facilities. Their sole role, as disclosed by this record, is that of experts engaged by counsel.
555 So.2d at 1260. See also ITD Industries, Inc. v. Morrell, 459 So.2d 1163 (Fla. 2d DCA 1984) (plaintiffs were not entitled to name and address of defendant's expert or to depose the expert where defendant did not intend to use expert at trial, absent showing of exceptional circumstances); Wackenhut Corp. v. Crant-Heisz Enterprises, Inc., 451 So.2d 900 (Fla. 2d DCA 1984) (if an expert has been hired to conduct an investigation in anticipation of litigation, his reports and memoranda constitute materials compiled in preparation for trial and he cannot be required to reveal the findings relevant to his investigation, absent proof of the adverse party's need and inability to obtain the materials without undue hardship).
Accordingly, we quash the order denying rehearing without prejudice to the Tromps to make the required showing of exceptional circumstances needed to overcome the work product privilege.
Petition for Writ of Certiorari GRANTED; Order QUASHED; REMANDED.
PLEUS, C.J., and MONACO, J., concur.
NOTES
[1] Fla. R. Civ. P. 1.280(b)(3).
[2] Florida Rule of Civil Procedure 1.530 authorizes motions for rehearing directed to final summary judgments or final judgments. There is no provision in the rules authorizing the filing of a motion for rehearing of a non-final order. See Caufield v. Cantele, 837 So.2d 371, 376 n. 3 (Fla.2002); Wagner v. Bieley, Wagner & Assoc., Inc., 263 So.2d 1 (Fla.1972); Deal v. Deal, 783 So.2d 319, 321 (Fla. 5th DCA 2001); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1390 n. 6 (Fla. 3d DCA 1986), rev. denied, 494 So.2d 1153 (Fla.1986); Padovano, Florida Civil Practice § 22.9 (2004-2005 ed.); Berman, Florida Civil Procedure, § 530.3[4] (2004 ed.). However, a trial judge has judicial power to correct an erroneous interlocutory order and may entertain a motion for rehearing to accomplish that objective. See Padovano, Florida Civil Practice § 22.9 (2004-2005 ed.). Trawick provides a solution to this apparent conflict by suggesting that a motion for rehearing directed to an interlocutory order is incorrectly designated and actually constitutes a motion for reconsideration. See Trawick, Trawick's Florida Practice and Procedure, § 15-4 (2005 ed.). See also Francisco, 486 So.2d at 1388 n. 2.
[3] (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
* * * * * *
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative, including that party's attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589657/ | 14 So.3d 1013 (2009)
PURVIS
v.
STATE.
No. 2D09-430.
District Court of Appeal of Florida, Second District.
July 31, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744893/ | 998 So.2d 1010 (2008)
BUSBY
v.
STATE.
No. 2006-CT-01483-COA.
Supreme Court of Mississippi.
November 6, 2008.
Petition for writ of certiorari. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2344539/ | 921 A.2d 795 (2007)
In re Marc A. CALELLO, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 450262).
No. 06-BG-1067.
District of Columbia Court of Appeals.
April 19, 2007.
Before FARRELL and GLICKMAN, Associate Judges, and TERRY, Senior Judge.
PER CURIAM:
Respondent, Marc A. Calello, is a member of our bar and the New Jersey bar. On May 10, 2006, the New Jersey Supreme Court suspended respondent for three months, effective June 5, 2006. That court determined that respondent had violated New Jersey Rules of Professional Conduct 1.2 (scope of representation), 1.4 (failure to communicate with client), 1.5(c) (improper contingent fee agreements), 1.7(a), (b), (c)(2) (conflict of interest), and 1.15 (commingling, failure to notify client or third party of receipt of funds in which they have an interest, and requiring separate maintenance of funds in which multiple parties have an interest). Respondent was readmitted to the practice of law in New Jersey on September 27, 2006, since he had complied with additional conditions set by that state's Supreme Court in its suspension order. In the interim, respondent properly reported the New Jersey discipline to Bar Counsel as required by D.C. Bar R. XI, § 11(b), but Bar Counsel did not notify this court until September 18, 2006. We then suspended respondent on an interim basis and directed the Board *796 on Professional Responsibility ("Board") to recommend whether identical, greater, or lesser discipline should be imposed as reciprocal discipline or whether it would proceed de novo. The interim suspension was lifted on March 14, 2007.
On February 23, 2007, the Board submitted a report recommending imposition of the identical reciprocal discipline of a three month suspension.[1] On March 23, 2007, Bar Counsel informed us that he takes no exception to the Board's report and recommendation, and respondent has not filed an opposition to it. Given this lack of exception or opposition, we give the Board's findings great deference and hereby adopt its recommendations. See D.C. Bar R. XI, § 11(f); In re Goldsborough, 654 A.2d 1285 (D.C.1995) Accordingly, it is,
ORDERED that Marc A. Calello is hereby suspended from the practice of law in the District of Columbia for a period of three months, nunc pro tunc to October 19, 2006.
So ordered.
NOTES
[1] The Board concluded, and we agree, that although our Rules of Professional Conduct are not identical in all respects to the New Jersey rules, respondent's misconduct would likewise constitute misconduct here and warrants similar discipline, particularly as respondent has not taken exception to the Board's report and recommendation. See In re Reis, 888 A.2d 1158, 1160 (D.C.2005); In re Youmans, 588 A.2d 718, 719 (D.C.1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589452/ | 783 N.W.2d 220 (2010)
In re the Matter of the Appeal of Edna R. ROSCKES, et al., petitioners, Appellants,
v.
COUNTY OF CARVER, Community Social Services, Respondent,
Commissioner of Minnesota Department of Human Services, Respondent.
No. A09-1821.
Court of Appeals of Minnesota.
June 8, 2010.
*222 Charles W. Hollenhorst, Nicklaus, Braaten & Hollenhorst, P.L.L.C., Chaska, MN, for appellants.
James W. Keeler, Jr., Carver County Attorney, Thomas W. Haines, Assistant County Attorney, Chaska, MN, for respondent County of Carver, Community Social Services.
Lori Swanson, Attorney General, Robin C. Vue-Benson, Assistant Attorney General, Corrie Baer Oberg, Assistant Attorney General, St. Paul, MN, for respondent Commissioner of Minnesota Department of Human Services.
Considered and decided by LARKIN, Presiding Judge; WORKE, Judge; and COLLINS, Judge.
OPINION
WORKE, Judge.
Appellant-trustee, on his own behalf and on behalf of the decedent's estate, argues that funds in the decedent's trust were not available to her for purposes of determining medical-assistance eligibility, and also seeks to recover fees and other costs from the state under Minn.Stat. § 15.472 (2008). Respondents argue that the district court did not have subject-matter jurisdiction to consider this appeal because the notice of appeal of the commissioner's decision filed in district court was deficient. Respondents also argue that the trustee lacked standing to bring this appeal on his own behalf. We conclude that the district court had subject-matter jurisdiction, but we reject appellants' arguments and affirm.
FACTS
In 2002, after the death of her husband, Edna R. Rosckes (decedent) established an irrevocable trust in which she named herself as the primary beneficiary. She funded the trust by transferring to it the titles to her homestead and an adjacent parcel of land that she owned. These properties were eventually sold for approximately $180,000, and the proceeds were placed in an investment account held by the trust. Decedent named her son, Bernard Rosckes (appellant-trustee), as the trustee. The trust provided in pertinent part that:
3.1. During the lifetime of the Settlor, the trustee[] shall not pay to the Grantor any net income from the trust estate. The net income, if any, shall be added to the principal assets of this trust. If at any time or from time to time the Trustee[] shall find that the income available to Grantor from all sources is not sufficient to reasonably provide for her care, comfort, and support, then and in such event the Trustee shall, in the exercise of their sole and complete discretion, expend all or any part of said balance of said income, but not the principal assets, for and on behalf of the Grantor in order to reasonably provide for such care, comfort and support.
....
*223 3.5. Subject to the rights of the primary beneficiary under Paragraph 3.1, until the trust terminates, the trustee may pay income and principal to the primary beneficiary at such times and in such portions as the trustee deems advisable.
In 2007, decedent entered a nursing home. She applied for medical assistance in January 2008. Respondent Carver County Community Social Services (CCCSS) sent decedent a letter stating that applicants must have $3,000 or less in assets to be eligible for medical assistance, that assets available to decedent in her trust exceeded this amount, and that she had ten days to reduce her assets without making an improper transfer in order to qualify for medical assistance. Decedent construed this letter as a denial of medical assistance and appealed to respondent commissioner of human services. In June 2008, CCCSS sent decedent a formal notice of its denial of medical assistance, and decedent died shortly thereafter. In July, a human-services judge (HSJ) recommended affirming the denial of medical assistance, and the commissioner adopted this recommendation.
Appellant-trustee, on behalf of both himself and decedent's estate (collectively, appellants) appealed the denial of medical assistance to the district court. CCCSS and the commissioner (collectively, respondents) moved to dismiss the appeal for lack of subject-matter jurisdiction and to remove trustee from the appeal for lack of standing. The district court denied the motion to dismiss the appeal, but granted the motion to remove trustee as a party, and affirmed the commissioner's decision. This appeal follows.
ISSUES
I. Did the district court have subject-matter jurisdiction to consider this appeal?
II. Did the district court err in determining decedent to be ineligible for medical assistance?
ANALYSIS
I
Respondents assert that the district court did not have subject-matter jurisdiction to consider this case. Subject-matter jurisdiction governs a court's authority to consider and decide the issue in controversy. Robinette v. Price, 214 Minn. 521, 526, 8 N.W.2d 800, 804 (1943). Subject-matter jurisdiction "cannot be conferred by consent of the parties, it cannot be waived, and it can be raised at any time in the proceeding." Tischer v. Housing & Redevelopment Auth. of Cambridge, 693 N.W.2d 426, 430 (Minn.2005) (citing Minn. R. Civ. P. 12.08(c)). Whether subject-matter jurisdiction exists is a question of law, which this court reviews de novo. Id. at 428.
We first note that respondents' arguments do not pertain to subject-matter jurisdiction. The critical question in determining subject-matter jurisdiction is whether the court has the power to decide an issue, not whether the present case was properly brought. See In re Civil Commitment of Giem, 742 N.W.2d 422, 430 (Minn.2007) (holding that a party's failure to meet a mandatory deadline, though it required the district court to discharge a petition for civil commitment, did not divest the district court of subject-matter jurisdiction). The power of district courts to review decisions of the commissioner of human services has been established by the legislature. Minn.Stat. § 256.045, subd. 7 (2008). We accordingly conclude that the district court had subject-matter jurisdiction to consider this appeal.
*224 We next address respondents' claim that appellants brought this appeal in violation of Minn.Stat. § 573.01 (2008), which provides that a cause of action survives only to the personal representatives of a deceased party, if at all. No personal representative had yet been named for decedent's estate when this appeal was brought in district court. But the district court was presented with an appeal from an agency determination that occurred during decedent's lifetime, rather than an original cause of action. Section 573.01 therefore does not apply. Respondents also cite Poupore v. Stone Ordean Wells Co. (In re Poupore's Estate), in which the supreme court held that "[a] judgment for or against a party who is dead at the time suit was commenced is void." 132 Minn. 409, 411, 157 N.W. 648, 649 (1916). But again, the district court was faced with an appeal from an agency decision in the present case. In Poupore, the party named in the suit died before the action commenced. Id. at 410, 157 N.W.2d at 649. Poupore is therefore inapposite. Furthermore, in a typical appeal to this court, even if a party dies before a notice of appeal is filed and no personal representative is named, the rules of civil appellate procedure allow an appeal to proceed if filed by the deceased party's attorney of record. See Minn. R. Civ.App. P. 143.02. While the rules of civil appellate procedure are not necessarily dispositive, the district court was sitting in an appellate capacity, and we discern no error in its decision to allow this appeal to proceed. Cf. Minn. R. Civ. P. 25.01 (addressing death of parties to civil proceedings in district court).
Because we conclude that respondents' arguments fail, we need not consider whether the district court properly substituted a party for decedent under Minn. R. Civ.App. P. 143.02 or whether trustee has standing to bring this appeal on his own behalf. Therefore, we shall proceed to consider appellants' arguments on their merits.
II
Appellants argue that the county erred in denying medical assistance to decedent based upon the assets in her trust. An agency's medical-assistance eligibility determination is reviewed independently by this court without deference to the district court's decision. Estate of Atkinson v. Minn. Dep't of Human Servs., 564 N.W.2d 209, 213 (Minn.1997). Reversal is appropriate only when the challenging party shows that the agency's decision contains errors of law, is unsupported by substantial evidence, or is arbitrary and capricious. Minn.Stat. § 14.69 (2008); Fish v. Minn. Dept. of Human Servs., 748 N.W.2d 360, 363 (Minn.App.2008). The construction of ambiguous language in a trust is an issue of law subject to de novo review. In re Estate & Trust of Anderson, 654 N.W.2d 682, 687 (Minn.App. 2002). The issue of whether resources in a trust are available for the purposes of medical-assistance eligibility is also a question of law. In re Carlisle Trust, 498 N.W.2d 260, 263 (Minn.App.1993). The challenging party has the burden to establish whether a trust is an available asset. Id.
Minnesota's medical-assistance program was "intended to comply with and give effect to" the federal Medicaid statute. Minn.Stat. § 256B.22 (2008); see also Carlisle, 498 N.W.2d at 263 n. 1 (noting that "Medicaid" is referred to in Minnesota as "medical assistance"). Medical assistance, in turn, was intended to ensure medical care for persons who lacked the resources to pay for it, and "to be the payor of last resort." In re Estate of Barg, 752 N.W.2d 52, 58 (Minn.2008). Minnesota's medical-assistance program *225 excludes from eligibility any person who individually owns more than $3,000 in assets, in order to ensure that medical assistance is made available only to those in genuine financial need. Minn.Stat. § 256B.056, subd. 3 (2008); Carlisle, 498 N.W.2d at 263. Despite congressional intent to limit Medicaid to the financially needy, many individuals exploited a loophole in the Medicaid statute allowing them to attain Medicaid eligibility while preserving assets for their heirs by transferring their assets to irrevocable Medicaid-qualifying trusts (MQTs). In re Kindt, 542 N.W.2d 391, 395 (Minn.App.1996). In effect, this allowed an individual to "have his cake and eat it too." Cohen v. Comm'r of Div. of Med. Assistance, 423 Mass. 399, 668 N.E.2d 769, 772 (1996). Congress was disturbed by this practice and attempted to curtail it in a 1986 statute, which was eventually repealed and recodified as amended in section 13611(b) of the Omnibus Budget Reconciliation Act of 1993 (OBRA), codified as 42 U.S.C. § 1396p(d). Id. at 395-96, 542 N.W.2d 391. Accordingly, Minnesota's medical-assistance program provides that trusts established after August 10, 1993, are subject to 42 U.S.C. § 1396p(d). Minn.Stat. § 256B.056, subd. 3b(b) (2008).
In the case of an irrevocable trust, when there "are any circumstances under which payment from the trust could be made to or for the benefit of the individual," those portions of the income from or corpus of that trust are "resources available to the individual" for the purposes of state medical-assistance programs. 42 U.S.C. § 1396p(d)(3)(B)(1) (2006) (emphasis added). Decedent's trust required trustee to pay to decedent (as the grantor) "any net income from the trust estate" that decedent needed for her care, comfort, and support if her own income was insufficient. Decedent's trust also allowed trustee to pay to decedent (as primary beneficiary) "income and principal ... at such times and in such portions" as he deemed advisable. By these terms, all of the trust's principal and income could have been paid to decedent in some capacity, and were thus available to decedent under 42 U.S.C. § 1396p(d). Accordingly, we discern no error in CCCSS's determination that the assets in decedent's trust rendered her ineligible for medical assistance.
Appellants argue that decedent's trust was a discretionary trust and therefore, under Carlisle, its assets were unavailable in determining decedent's medical-assistance eligibility. A discretionary trust is one that "gives the trustee complete discretion to distribute all, some, or none of the trust income or principal to the beneficiary, as the trustee sees fit." Carlisle, 498 N.W.2d at 264. Prior caselaw holds that, unlike support trusts, the assets of certain discretionary trusts are not available for purposes of determining medical-assistance eligibility. Id.; United States v. O'Shaughnessy, 517 N.W.2d 574, 578 (Minn.1994). But the current state statute applies 42 U.S.C. § 1396p(d) to trusts created after August 10, 1993, and makes no distinction between discretionary trusts and support trusts. Minn.Stat. § 256B.056, subd. 3b(b). Both Carlisle and O'Shaugnessy involved trusts created before August 10, 1993, and are therefore inapposite. Appellants also cite to In re Flygare, where this court applied Carlisle in determining whether a trust that was established after August 10, 1993, was a discretionary trust. 725 N.W.2d 114, 120 (Minn.App.2006), review denied (Minn. Feb. 28, 2007). But the trust in Flygare was established in a will, id. at 117, and section 1396p(d) specifically excludes such trusts from its requirements. 42 U.S.C. § 1396p(d)(2)(A) (2006). Thus, Flygare is also inapposite.
*226 Applying earlier versions of the current statutes, this court has previously rejected the argument that a person determined ineligible for medical assistance under federal law because of an MQT could be determined eligible under Carlisle. Kindt, 542 N.W.2d at 399. We recognized in Kindt that Carlisle was decided "in the absence of controlling federal or state laws or regulations." Id. We concluded that because Minnesota's medical-assistance program is required to comply with federal law, Carlisle could not be used to bring medical-assistance eligibility rules in conflict with controlling federal statutes. Id. Appellants argue that Kindt is factually distinguishable, but the factual differences of this case do not affect the applicability of Minn.Stat. § 256B.056, subd. 3b(b) or 42 U.S.C. § 1396p(d), the controlling federal law in this case. Accordingly, we hold that because decedent's trust assets rendered her ineligible for medical assistance under controlling state and federal statutes, she cannot be eligible for medical assistance under cases like Carlisle decided in the absence of these statutes.
Finally, we reject appellants' claim for fees and costs under Minn.Stat. § 15.472(a) (2008). First, Minn.Stat. § 15.472(a) allows for the recovery of "fees and other expenses" when "a prevailing party other than the state ... shows that the position of the state was not substantially justified." Because appellants' arguments fail on their merits, the state's position was substantially justified. Second, this court has interpreted "party," as used in section 15.472(a), to exclude individuals, observing that the statute "was targeted specifically towards small businesses." McMains v. Comm'r of Pub. Safety, 409 N.W.2d 911, 914 (Minn.App.1987). For both of these reasons, appellants are not entitled to recover fees and costs under section 15.472(a).
DECISION
The death of decedent before the filing of the notice of appeal to the district court did not deprive the district court of subject-matter jurisdiction to hear this appeal. But under current controlling state and federal law, decedent was properly determined to be ineligible for medical assistance. Appellants are not entitled to recover costs and fees from the state.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589463/ | 14 So.3d 202 (2007)
ALFONSO NORMAN
v.
STATE.
No. CR-06-1067.
Court of Criminal Appeals of Alabama.
August 24, 2007.
Decision of the Alabama Court of Criminal Appeals without opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589482/ | 14 So.3d 1067 (2009)
Mary M. MONTGOMERY and Bill T. Smith, Jr., Esq., as Personal Representatives of the Estate of Robert M. Montgomery, Jr., individually and as partner of Montgomery & Larmoyeux, n/k/a Montgomery & Larson, LLP, Montgomery & Larson LLP, a Florida limited liability partnership, and Beasley, Hauser, Kramer, Leonard & Galardi, P.A., f/k/a Beasley & Hauser, P.A., Appellants,
v.
Christopher M. LARMOYEUX, Jr., individually and as partner of Montgomery & Larmoyeux, n/k/a Montgomery & Larson, LLP, a Florida limited liability partnership, Eric Hewko, individually, Austin Carr, individually, Charles L. Robinson, individually, and Rickey Ray Wyatt, individually, Appellees.
No. 4D08-314.
District Court of Appeal of Florida, Fourth District.
June 3, 2009.
Rehearing Denied July 21, 2009.
*1068 Sylvia H. Walbolt of Carlton Fields, P.A., Tampa and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellants Mary M. Montgomery and Bill T. Smith, Jr., as Personal Representatives of the Estate of Robert M. Montgomery, Jr., and Montgomery & Larson, LLP, a Florida limited liability partnership.
John Beranek of Ausley & McMullen, Tallahassee, for appellant Beasley, Hauser, Kramer, Leonard & Galardi, P.A., f/k/a Beasley & Hauser, P.A.
Barbara J. Compiani and Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, for appellee Christopher M. Larmoyeux, Jr.
Eric Hewko of The Hewko Firm, North Palm Beach, pro se.
HAZOURI, J.
This appeal arises from the trial court's order granting attorney's fees to Christopher M. Larmoyeux and Eric Hewko under *1069 section 57.105, Florida Statutes (2003). The trial court awarded fifty percent of the fees against Robert M. Montgomery, Jr., and Montgomery and Larson, LLP (Montgomery) and fifty percent of the fees against Montgomery's counsel, Beasley, Hauser, Kramer, Leonard & Galardi, P.A. (Beasley). The trial court found, pursuant to section 57.105, that claims made by Montgomery and Beasley as against Larmoyeux and Hewko had no basis in law and fact, and that there was not even the semblance of a good faith attempt by Montgomery or his counsel, Beasley, to substantiate their claims of fraud and conspiracy against Larmoyeux and Hewko. For reasons stated hereinafter, we reverse the award of fees to Larmoyeux and affirm as to the fees awarded to Hewko.
This case arises out of a very fractious relationship between Larmoyeux and Montgomery. For twelve years, Larmoyeux was a partner in Montgomery & Larmoyeux, a law firm in West Palm Beach. In December 2000, Montgomery terminated Larmoyeux. Upon leaving the firm, Larmoyeux took with him eleven cases. Eight of those cases settled and are not at issue. The three remaining cases, which are at issue here, resulted in recovery of monies by settlement in two of the cases and by jury verdict in the third. These cases are Schultz v. Clark, Simmons v. Niedzwiedzki, and Wyatt v. Milner.
Pursuant to a partnership agreement that existed between Montgomery and Larmoyeux, Montgomery claimed entitlement to eighty percent of the gross fees recovered in all of the eleven cases Larmoyeux took with him. The partnership agreement provided that Larmoyeux would "pay the firm as liquidated damages eighty percent (80%) of all fees collected from such clients and eighty percent (80%) of any costs advanced by the firm with respect to any such client matter as such amounts are received by Larmoyeux." (Emphasis in original). Montgomery and Larmoyeux submitted the matter of the fees for all eleven cases to arbitration. Pursuant to the partnership agreement, the arbitration award directed that Larmoyeux, in all eleven cases, remit to the firm "`80% of the fees collected by him [emphasis supplied] and 80% of the firm's costs'" within ten days "of his receipt by him of such fees and costs."
Montgomery filed charging liens in all three cases at issue here. He also filed this separate action, alleging the following Counts:
I. For Fraud, against LARMOYEUX and attorney HEWKO, claiming that they had fraudulently entered "a sham fee agreement" providing for HEWKO to receive a large percentage of the over-all fees in Wyatt v. Milner, which was filed in this Circuit, "to deprive Montgomery of the fees and costs owed under the Partnership Agreement and the Arbitration Award."
II. For Fraud, against LARMOYEUX and attorney CARR, claiming that they had fraudulently entered "a sham fee agreement" providing for CARR to receive a large percentage of the over-all fees in Simmons v. Niedzwiedzki, which was filed in the 11th Circuit, in and for Miami-Dade County, "to deprive Montgomery of the fees and costs owed under the Partnership Agreement and the Arbitration Award."
III. For Civil Conspiracy, against LARMOYEUX, attorney HEWKO (LARMOYEUX's co-counsel in Wyatt v. Milner [) ], attorney CARR (LARMOYEUX'S co-counsel in Simmons v. Niedzwiedzki), Defendant CHARLES L. ROBINSON....
IV. Breach of Fiduciary Duty against LARMOYEUX;
*1070 V. Breach of Contract against LARMOYEUX;
VI. Breach of Duty of Good Faith and Fair Dealing against LARMOYEUX;
VII. Tortious Interference with Contract against HEWKO;
VIII. Tortious Interference with Contract against CARR;
IX. Declaratory Relief against LARMOYEUX and HEWKO, seeking a declaration that the fee agreement between those two attorneys in the Wyatt case is void, and that client Wyatt owes 100% of all the fees generated "are owed exclusively by the client to Larmoyeux, who in turn owes 80% to Montgomery."
(footnotes omitted).
Without leave of court, Montgomery also prayed for punitive damages.
On May 14, 2003, Montgomery and Beasley filed a second amended complaint, which contained the same allegations stated above. On June 4, 2003, Larmoyeux sent notice to Montgomery and Beasley that he was seeking sanctions under section 57.105. He filed his motion with the trial court on June 6, 2003. On June 6, 2003, Hewko sent the same notice to Montgomery and Beasley, but did not file his motion with the trial court until July 8, 2003.
On April 15, 2004, the trial court granted a motion to stay this case, stating that it could not proceed because the trial courts in which the charging liens were filed had exclusive jurisdiction to determine the issue of Montgomery and Larmoyeux's fees in those cases. Montgomery and Beasley petitioned this Court, seeking a writ of certiorari and asking this Court to declare that the trial court erred in holding that the other courts were the proper forum for Montgomery and Beasley's claims. This Court denied the petition. The parties proceeded to litigate the charging liens in the Wyatt and Simmons cases.
In Wyatt, the court found that the charging lien of Montgomery was valid, but found that Montgomery was entitled to eighty percent of only the fee collected by Larmoyeux not eighty percent of the entire fee. The court also determined that the evidence presented was insufficient to support the claims of fraud, tortious interference, or conspiracy on the part of Wyatt, Hewko, or Larmoyeux.
In Simmons, the trial court found that attorney Carr was primarily responsible for the settlement of that tort case for $1,000,000. The court found Larmoyeux's claim that he spent 120 hours on the case acceptable, awarding him, on the basis of quantum meruit, an hourly rate of $600, which equaled $72,000. The court then awarded eighty percent of the $72,000 ($57,600) to Montgomery and twenty percent ($14,400) to Larmoyeux on the basis of quantum meruit. The court also found no evidence of fraud, collusion, or any effort to deprive Montgomery of a fee. It "affirmatively determine[d] that there was no collusion nor was there any effort made to deprive Montgomery of a fee in this case."
In Schultz, Larmoyeux entered into a settlement agreement with the defendant Clark, and received a $40,000 fee. On February 8, 2005, Larmoyeux paid Montgomery $36,409.50, representing eighty percent of the fee plus costs and interests.
Following the resolution of the charging liens, Montgomery voluntarily dismissed his claims in the instant case. Thereafter, the claims for section 57.105 fees proceeded to evidentiary hearings on entitlement and amount of fees to be awarded.
In granting Larmoyeux and Hewko's section 57.105 motions, the trial court found that "[t]here has been presented to *1071 this Court nothing to suggest the existence of even a semblance of a good faith attempt by [Montgomery] or [his] counsel to substantiate the[ ] claims of fraud and conspiracy." The trial court also held that Montgomery's claims "were wholly supposition; at the very least, an effort on their [Montgomery and Beasley's] part to uncover supportive facts was needed to show some scintilla of legitimacy to the[se] claims. Not even a rudimentary effort to do so was ever made."
In a separate final judgment, the trial court calculated the award of attorney's fees for Larmoyeux and Hewko. Based on a summary of work and corroborating expert testimony, it found that the amount of reasonable hours spent by Larmoyeux was 349.4 hours and the amount of hours spent by Hewko was 440.4 hours. It also found a reasonable hourly rate of $475 per hour. The trial court awarded $209,190 to Hewko and $165,965 to Larmoyeux, requiring Montgomery and Beasley to each pay fifty percent.
Montgomery and Beasley contend that Larmoyeux failed to comply with time requirements of section 57.105 and, therefore, the award of attorney's fees should be reversed. We agree. As to Hewko's claim for attorney's fees, Montgomery and Beasley contend that there was not competent, substantial evidence to support the trial court's finding that their claim against Hewko was without foundation in fact or law and was not brought in good faith. We disagree.
As to Larmoyeux's claims under section 57.105(4), the statute states that: "A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected."
Larmoyeux argues that, although he was not in strict compliance with section 57.105(4), it was not until May 17, 2006, over thirty-five months after receiving his 57.105 motion, that Montgomery and Beasley filed a notice of voluntary dismissal and, therefore, they had more than sufficient time to take advantage of the safe-harbor provision of section 57.105(4). In support of his position, Larmoyeux cites this Court's decision in Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004), which stated that the primary purpose of the safe-harbor provision of section 57.105(4) "is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim...."
The facts in Maxwell are distinguishable and, thus, the assertion that Maxwell supports Larmoyeux's argument is not well taken.
Maxwell sued Euro Concepts for breach of contract. Euro Concepts filed a counterclaim raising three claims: civil theft, conversion, and breach of contract. Three months later, Euro Concepts amended its counterclaim, maintaining the original civil theft and conversion counts. Thirty days later, it filed a second amended counterclaim, which contained the identical civil theft and conversion counts.
In complying with section 57.105(4), Maxwell served the motion for attorney's fees on September 11, 2002. On September 17, 2002, Maxwell moved for a summary judgment as to the civil theft and conversion counts. On October 4, 2002, Maxwell, pursuant to section 57.105, moved for attorney's fees pertaining to its civil theft and conversion claims.
Thereafter, Euro Concepts filed a third amended counterclaim on December 6, 2002, which contained the same civil theft and conversion counts that had been part of the case since the original counterclaim. *1072 The trial court subsequently granted Maxwell's motion for summary judgment on the civil theft and conversion claims. In so holding, it found that Euro Concepts and its attorney, Michael Banks, knew or should have known at the inception of the case that the claims raised by the third amended counterclaim were meritless, as they were not supported by any material fact or the law as applied to any material fact. The court ordered Euro Concepts and Banks to each pay one-half of Maxwell's attorney's fees.
Banks moved for rehearing, arguing that Maxwell failed to comply with the statutory notice requirement of section 57.105 because the October 4, 2002, motion was directed at the second amended counterclaim, not the third amended counterclaim. The trial court granted the motion for rehearing and vacated its order. In vacating its previous order, the trial court ruled that Maxwell was required to file a motion for attorney's fees directed at the third amended counter-claim.
In reversing the trial court, this Court stated:
In this case, Euro Concepts and Banks had well more than twenty-one days to withdraw the civil theft and conversion claims, so that we do not find a section 57.105(4) violation that precludes recovery. The claims first appeared in the March 29, 2002 counterclaim and were included in the same form in all the amended counterclaims. Maxwell mounted its first section 57.105 attack on the civil theft and conversion counts in a motion filed on October 4, 2002, which had been served in compliance with section 57.105(4) on September 11, 2002. Banks and Euro Concepts did not eliminate the offending counts from the case. Instead, they filed a third amended counterclaim on December 6, 2002, which contained the identical civil theft and conversion counts. Banks and Euro Concepts had the chance afforded by the statute to withdraw the claims before section 57.105 liability was triggered; they did not avail themselves of the opportunity.
Maxwell, 874 So.2d 709, 711-12.
Unlike Larmoyeux's claim, Maxwell complied with the filing requirements of the twenty-one day safe-harbor provision. Section 57.105(4) does not require a safe-harbor for each amendment to a complaint when, as in Maxwell, the claims for which the 57.105 fees are sought remain in the amendment.
Section 57.105(4) could not be clearer in its requirement that a motion seeking sanctions may not be filed with or presented to the court within twenty-one days of service of the motion. Statutes authorizing awards of attorney's fees are in derogation of common law and must be strictly construed. Larkin v. Buranosky, 973 So.2d 1286, 1287 (Fla. 4th DCA 2008) (stating that "`[a]ny statute that deviates from the common law approach must be strictly construed'" (quoting Hilyer Sod, Inc. v. Willis Shaw Exp., Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002))); see, e.g., Cano v. Hyundai Motor Am., Inc., 8 So.3d 408 (Fla. 4th DCA 2009) (holding that "[s]ection 768.79 and rule 1.442 are strictly construed because they are `in derogation of the common law rule that each party pay their own fees'" (quoting Brower-Eger v. Noon, 994 So.2d 1239, 1241 (Fla. 4th DCA 2008))); see also Anchor Towing, Inc. v. Fla. Dep't of Transp., 10 So.3d 670 (Fla. 3d DCA 2009) (holding that a party failed "to meet the mandatory notice requirement of section 57.105(4)" by sending a letter instead of "the statutorily required motion" to opposing counsel, as statutes "in derogation of the common law" are "strictly construed" (citing Nathan v. Bates, 998 So.2d 1178, 1179 (Fla. 3d DCA 2008))); Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (holding that, *1073 because a party "failed to comply with the requirements of section 57.105(4)" by filing with the trial court a section 57.105 motion three days after the filing of a motion of voluntary dismissal upon which the section 57.105 motion was based, they were ineligible for an award of attorney's fees under section 57.105).
As such, Larmoyeux's failure to comply with the mandatory requirements of section 57.105(4) did not constitute a procedural trap sprung on the unwary.
We now turn to Hewko's claim for attorney's fees, as awarded pursuant to section 57.105(1)(a)-(b).[1] Unlike Larmoyeux, Hewko complied with section 57.105(4)'s time requirements, having filed his motion with the trial court thirty-two days after it was served on Montgomery and Beasley. In reviewing an award of attorney's fees under section 57.105, "`this court must look to see if the trial court abused its discretion in finding no justiciable issues of fact or law.'" Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 618 (Fla. 4th DCA 2006) (citations omitted). A trial court's findings must also "`be based upon substantial competent evidence presented to the court at the hearing on attorney's fees or otherwise before the court and in the trial record.'" Id. (quoting Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1141 (Fla. 4th DCA 2001)).
The trial court's determination that Montgomery and Beasley knew or should have known that their claims against Hewko for fraud, conspiracy to commit fraud, and tortious interference with contract were not supported by the material facts or the application of then-existing law to those material facts, as well as the trial court's finding that the claims were not made in good faith, was supported by competent, substantial evidence. We, accordingly, affirm the award of attorney's fees to Hewko.
Affirmed in Part; Reversed in Part.
FARMER and TAYLOR, JJ., concur.
NOTES
[1] Section 57.105(1), Florida Statutes (2008), states:
(1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590032/ | 14 So.3d 1090 (2009)
Glendora LOMACK, Appellant,
v.
Ronald A. MOWREY and R.H. Mowrey, Appellees.
No. 1D08-2554.
District Court of Appeal of Florida, First District.
June 9, 2009.
*1091 Wendy Loquasto of Fox & Loquasto, P.A., Tallahassee; Deveron L. Brown of Brown & Associates, L.L.C., Tallahassee, for Appellant.
Angela C. Flowers and Amy L. Miles of Kubicki, Draper, Ocala, for Appellees.
PER CURIAM.
Glendora Lomack appeals a final summary judgment in a premises liability action. She alleged in her complaint below that while cleaning a law office owned by appellees, she became entangled in some exposed computer cables and fell, resulting in significant injuries. Concluding that the trial court erred in granting summary judgment, we reverse and remand for further proceedings.
Lomack's claim against appellees rested on the theory that her injuries resulted from appellees' breach of their duty to maintain their property in a safe condition. In granting summary judgment, the trial court found as follows:
The record which includes the deposition of Plaintiff, Glendora Lomack, reveals that there was no known dangerous condition in existence in the area where Plaintiffs alleged injuries were sustained; that there were no obstacles blocking Plaintiffs view of the open and obvious area where she allegedly fell; that Plaintiff was familiar with the subject area having entered the area on at least 100 occasions prior to the alleged fall; and that there is no evidence whatsoever of prior similar incidents which would have placed [appellees] on notice of a potential danger in the area where Plaintiff allegedly fell.
As both parties correctly recognize, orders granting summary judgment are reviewed under a de novo standard. See Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008). Under Florida Rule of Civil Procedure 1.510, the court may grant summary judgment if there is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 1.510(c) provides that a motion for summary judgment must "state with particularity the grounds upon which it is based and the substantial matters of law to be argued." The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Bloch v. Berkshire Ins. Co., 585 So.2d 1137, 1138 (Fla. 3d DCA 1991). Only after these elements are established by the movant does the burden shift to the party opposing the motion to establish existence of a dispute of material fact. See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995).
*1092 In their motion below, appellees correctly acknowledged that, as landowners, they owed to invitees the duties to: (a) use reasonable care to maintain their premises in a safe condition, and (b) give warning of concealed perils which are or should be known to them, but which are unknown to the invitee and could not have been discovered by the invitee even with the exercise of reasonable care.[*]See DiMarco v. Colee Court, Inc., 976 So.2d 650, 651 (Fla. 4th DCA 2008); Freeman v. BellSouth Telecomms., Inc., 954 So.2d 45, 46 (Fla. 1st DCA 2007); Williams v. Madden, 588 So.2d 41, 43 (Fla. 1st DCA 1991). In their motion for summary judgment, appellees argued that they had no duty to warn because the condition of the wires on the floor was "open and obvious" and "non-dangerous." Apart from characterizing the condition as "non-dangerous," however, the motion did not meaningfully address whether appellees had satisfactorily discharged their duty to maintain the premises in a safe condition. The reconstructed record of the summary judgment hearing likewise suggests that the arguments and evidence discussed at the hearing went exclusively to the "duty to warn" issue. Not surprisingly, then, the trial court's order granting summary judgment is grounded on a finding that appellees had no duty to warn of the hazard presented by the loose wires because that hazard was not known to appellees and in any event was open and obvious.
In light of the foregoing, we conclude that the trial court erred in granting summary judgment bottomed upon an incomplete analysis of the relevant issues of fact and law. Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner's duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition. See, e.g., Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA 2007); Miller v. Slabaugh, 909 So.2d 588, 589 (Fla. 2d DCA 2005); Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577-78 (Fla. 5th DCA 2005); Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986); Pittman v. Volusia County, 380 So.2d 1192, 1193-94 (Fla. 5th DCA 1980). Moreover, despite the trial court's apparent conclusion to the contrary, an invitee's knowledge of a danger is normally not a complete bar to recovery, but rather only triggers the application of comparative negligence principles. See Kirk v. TJ Palm Beach Assocs. Ltd. P'ship, 976 So.2d 694, 695 (Fla. 4th DCA 2008); Fenster v. Publix Supermarkets, Inc., 785 So.2d 737, 739 (Fla. 4th DCA 2001); Knight v. Waltman, 774 So.2d 731, 734 (Fla. 2d DCA 2000).
Accordingly, even if the hazard caused by the loose wires were open and obvious and appellees thus had no duty to warn appellant of it (a finding the present record would not allow us to embrace at this point), the lower court nonetheless erred by determining appellees' entitlement to judgment as a matter of law, given the absence of a factually supported finding that appellees also had not breached their duty to maintain their premises in a reasonably safe condition. The order on appeal is therefore REVERSED and the *1093 matter REMANDED for further proceedings.
KAHN, THOMAS, and ROBERTS, JJ., concur.
NOTES
[*] Appellees argue in their brief to this court that the appropriate standard of care is a more relaxed one applicable to independent contractors. The applicability of that standard was not among "the substantial matters of law" disclosed in their motion, nor is it mentioned in the reconstructed record of the summary judgment hearing. Thus, the "tipsy coachman" rule notwithstanding, any reliance on this different standard at this point would be contrary to elementary due process principles and the express requirements of rule 1.510. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586404/ | 162 P.3d 1130 (2007)
160 Wash.2d 1017
PREVIEW PROPERTIES, INC.
v.
LANDIS.
No. 79187-2.
Supreme Court of Washington, En Banc.
July 6, 2007.
Disposition of petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/789112/ | 396 F.3d 993
Yacouba BERTE, Petitioner,v.John ASHCROFT, Respondent.
No. 03-3665.
United States Court of Appeals, Eighth Circuit.
Submitted: December 14, 2004.
Filed: February 4, 2005.
COPYRIGHT MATERIAL OMITTED James Kinglsey McGough, argued, Omaha, NE, for petitioner.
Norah Schwarz, argued, USDOJ, Washington, D.C. Margaret M. Newell, Trial Attorney, Office of Immigration Litigation, Washington, DC, for respondent.
Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
WOLLMAN, Circuit Judge.
1
Yacouba Berte petitions for review of an order of the Board of Immigration Appeals (BIA) that affirmed an Immigration Judge's (IJ) denial of his application for asylum and withholding of removal and denied his request to supplement the record. After review of the record, we deny the petition.
I.
2
Berte entered the United States on June 7, 1995, on a J-1 non-immigrant exchange visitor visa, and remained beyond his authorized stay. He filed a claim for asylum and withholding of removal in September 1997. He was served with a notice to appear in late 1998. At his removal hearing in 1999, which was continued in 2001, he conceded that he was removable, but sought asylum relief. The IJ issued an oral decision denying asylum and withholding of removal and granting voluntary departure.
3
The IJ concluded that, although Berte testified credibly, he was not entitled to asylum or withholding of removal because although he may have been discriminated against, he did not suffer persecution. Berte appealed the decision to the BIA, seeking to supplement the record on appeal with various reports and articles that he alleged showed changed country conditions. The BIA declined to allow supplementation and both affirmed and adopted the IJ's decision.
II.
A.
4
We review the BIA's decision that an alien is not eligible for asylum or withholding of removal for substantial evidence. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004). Because the BIA affirmed and adopted the IJ's decision, stating that its conclusions "coincide with those the Immigration Judge articulated," we extend our review to the IJ's opinion and review both decisions together. See id. We will reverse the BIA's decision for lack of evidence only if we find that the evidence in the record is "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992).
5
An alien is eligible for asylum if he is a refugee — someone who is unable or unwilling to return to his country of nationality "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The alien bears the burden of proof to show that he meets the definition of refugee. 8 C.F.R. § 1208.13 (1999). In order to prove a well-founded fear of future persecution, an alien must show both that he actually fears persecution and that "a reasonable person in the alien's position would fear persecution if returned to the alien's native country." Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir.2002) (internal quotation omitted).
6
We have defined persecution generally as "the infliction or threat of death, torture, or injury to one's person or freedom, on account of" one of the grounds enumerated in the refugee definition. Regalado-Garcia, 305 F.3d at 787; see also Fisher v. INS, 291 F.3d 491, 497 (8th Cir.2002) (describing persecution as involving "a threat to one's life or freedom"). Low-level intimidation and harassment alone do not rise to the level of persecution. See Zakirov v. Ashcroft, 384 F.3d 541, 546 (8th Cir.2004); see also Tesfu v. Ashcroft, 322 F.3d 477, 481 (7th Cir.2003) (stating that "persecution means more than plain harassment and may arise from actions such as detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture." (internal quotation marks omitted)). Similarly, "mere economic detriment" is not sufficient to qualify as persecution. See Fisher, 291 F.3d at 497; Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997) (stating that "[f]ears of economic hardship or lack of opportunity do not establish a well-founded fear of persecution").
7
The evidence of discrimination that Berte presented falls far short of persecution and fails to establish a well-founded fear of future persecution. Berte testified that it is difficult for people from the northern part of the country to obtain the identity documents that the government requires for proof of citizenship: certificates of nationality, identification cards, and passports. Before he left the Ivory Coast, he had difficulty obtaining his passport and never actually received the national identification card for which he had applied. He believes that he will be unable to renew his documentation if he returns and that he will, as a consequence, be denied many rights of citizenship (his right to be free from harassment by government officials, his right to vote, and his right to apply for work).
8
The above-described barriers to the exercise of basic citizenship rights reflect discrimination, but do not rise to the level of persecution that is sufficient to make a person eligible for asylum. It is significant that Berte has "never been arrested, detained, interrogated by authorities, or convicted of any crime," Fisher, 291 F.3d at 495, and that he does not expect to be the object of such treatment on his return. Sufficient evidence therefore supports the agency's denial of asylum.
9
In order to be eligible for withholding of removal, the alien must prove that it is "more likely than not" that he will be subject to persecution, a standard significantly higher than that required for asylum eligibility. See Al Tawm v. Ashcroft, 363 F.3d 740, 744 (8th Cir.2004). Because Berte has failed to show any likelihood of persecution, he also fails to meet "the higher burden of proof required for withholding." Id.
B.
10
Berte argues that the BIA should have allowed him to supplement the record with additional reports and articles or, alternatively, should have remanded the case to the IJ to consider the additional evidence. We review the BIA's denial of a motion to remand for abuse of discretion. See Patel v. Ashcroft, 375 F.3d 693, 696 (8th Cir.2004). The BIA's function is to review the record, not create it. See Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (1984) (stating that "all evidence which is pertinent to determinations made during deportation proceedings ... must be adduced in the hearing before the immigration judge"). The BIA will not remand to the IJ to consider additional evidence proffered on appeal if the evidence "was available and could have been presented at an earlier hearing." In re Adolfo Jose Grijalva, 21 I. & N. Dec. 27, 36 (1995). Even if the evidence was previously unavailable, the BIA will remand only if the evidence is "of such a nature that the Board is satisfied that if proceedings before the [IJ] were reopened, with all the attendant delays, the new evidence would likely change the result in the case." Matter of Coelho, 20 I. & N. Dec. 464, 473 (1992).
11
We do not believe that this case involves such extraordinary circumstances, and thus we conclude that the BIA did not abuse its discretion in denying petitioner's request. The proffered evidence described violence and political unrest generally in the Ivory Coast, but it did not relate specifically to Berte or his family. The BIA implied that the evidence would be unlikely to change the result because the IJ had already received articles on violence in the Ivory Coast.
12
Berte urges us to consider similar evidence in his motion for judicial notice, in which he proffers several reports on the human rights situation in the Ivory Coast. We deny the motion. We are limited in our review and may "decide the petition only on the administrative record on which the order of removal is based." See 8 U.S.C. § 1252(b)(4)(A); see also Lukowski v. INS, 279 F.3d 644, 646 (8th Cir.2002) (noting that "our judicial review is limited to the administrative record").
13
The petition for review is denied. | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1589518/ | 972 So.2d 1165 (2008)
Martin WOOLFOLK d/b/a Woolfolk Agency
v.
Barron RUSH.
No. 2007-CC-2188.
Supreme Court of Louisiana.
January 11, 2008.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548365/ | 162 F.2d 141 (1947)
RICKER
v.
GENERAL ELECTRIC CO.
No. 212, Docket 20492.
Circuit Court of Appeals, Second Circuit.
June 3, 1947.
Gustave A. Gerber, of New York City, for plaintiff-appellant.
Charles H. Walker, of New York City, for defendant-appellee.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
*142 CLARK, Circuit Judge.
This action involves the alleged plagiarism of scientific materials simply prepared for the lay reader. Plaintiff charges that before March, 1942, she produced an original book entitled, "Radio Operator's Primer," which was then copyrighted; that prior to April, 1943, she wrote a revised edition of this book entitled, "Radio Primer," which was copyrighted October 8, 1943; that in April, 1943, she offered her already copyrighted first book and the manuscript of her second book to defendant, who returned them to her without acceptance of the offer; and that these are infringed by defendant's publication, "The ABC's of Radio" (shown by other matter of record to have been published on July 12, 1943). She sought the usual remedies of injunction, accounting, and damages. The record, in addition, contains the defendant's answer of denial and the various affidavits which will be referred to below. Since the District Court has granted summary judgment for defendant on the latter's motion, and since an issue of fact not triable on this motion is raised on the pleadings as to access, we must decide the present appeal upon the basis that plaintiff will be able to prove her allegations as to access.
Unlike the subject matter of a patent, copyrighted material need be not new, but only original. Hence the sole issue before us is as to infringement. And in considering that issue it must be remembered that the plaintiff has no monopoly of the scientific information with which her book deals; nor has she a monopoly of the idea of expounding such information in simple language comprehensible by lay readers. All her copyright gives her is the right to prevent plagiarism. Independent reproduction of a copyrighted work is not infringement; only plagiarism will serve. Arnstein v. Edward B. Marks Music Corp., 2 Cir., 82 F.2d 275; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 54. Where access is proved, or assumed as in the case at bar, likenesses between the copyrighted work and the putative piracy may give rise to an inference of plagiarism; but such an inference is necessarily greatly weakened when the similarities relate to the expression of scientific principles which must necessarily be stated in more or less stereotyped language. See Oxford Book Co. v. College Entrance Book Co., 2 Cir., 98 F.2d 688, 691. Bearing these principles in mind we have examined the record and have found no similarities which could support the charge of plagiarism.
Plaintiff's affidavits show that she is a person of experience in the field of radio communication, beginning her study of wireless telegraphy in World War I. In World War II, she endeavored to stimulate the study of radio by women and adapted a course to meet army requirements for radio work, writing the first book here involved to cover the material for the course. This she gave in the Women's Defense School in Washington. She was also engaged to teach the theories of radio to the men of the Army Air Corps, Technical Training Command. The purposes of the book thus indicated are borne out in her preface, where she speaks of the need of radio operators, the call by the armed forces for amateurs to enroll and learn commercial work, and the hope that "old and new `Hams' [amateur radio senders] will understand and like my angle on this fascinating study." In line with this purpose her work starts with the teaching of the Morse Code and contains abbreviated signals for stereotyped questions and answers before she proceeds to expound her theoretical material such as "What Is Electricity?" "What Is A Battery?" and so on. Then at page 24 of the 32-page multigraphed pamphlet she comes back again to a detailed discussion of transmitters, followed by several pages of quotation of "F. C. C. Questions and answers" and a final page of "Federal Communications Commission's Rules." The pointed direction of this material to the needs of radio operators of communication sets is obvious.
In her 1943 work, "Radio Primer," this is less stressed, and perhaps the appeal may be considered widened; her preface here suggests, "Engineers may find it refreshing to review their ABC's, new or old hams to rechase the fascinating electron and remarvel at its mysterious power." This, *143 however, is essentially a work stressing definitions which are short, terse, and direct. The subjects of the definitions appear in capitals as the first word or words of each short paragraph. The emphasis upon transmission is still found, however, in the chapters beginning at page 34 of this 48-page pamphlet, including the last chapter at page 43, entitled, "Answers to FCC Amateur B License Examination."
Defendant's work of 68 pages, double columns, according to its preface, "is the outgrowth of a training course in radio that was prepared for sales personnel and others employed in non-technical positions in the radio industry." Particular emphasis is then given to an understanding of "the servicing of receivers," so that "the point of view of the practical serviceman has been adopted rather than that of the advanced engineer." Thus we find stress on symbols and abbreviations for vacuum tubes and other radio parts, with detailed attention (beginning at page 47) to "Trouble Analyzing and Repairing," setting forth methods, devices, systems, and diagrams for discovering faults in tubes, in loudspeakers, in the power supply, in the power amplifier, etc., etc. There is an extensive discussion, with drawings, of the General Electric 6-tube superheterodyne Model L-630. Finally there follow seven pages of terms and definitions. There is no discussion of transmitters, or the Morse Code, or the Federal Communications Commission's requirements for operators' licenses; and there is no material at all dealing with the sending of signals. Hence here the pointed direction of the text to radio receivers and their care and servicing is obvious.
Defendant's affidavit made by one Royer asserts that he prepared the final draft of defendant's book, making use of material previously prepared by him for sales training within the company and published in mimeographed form under date of October 27, 1942. An inspection of this material attached as an exhibit demonstrates beyond doubt that it is the source of by far the greater part of defendant's publication. Almost all the Royer manuscript is lifted bodily into the final publication, with only minor revision and with some additions. Among these additions are the definitions referred to above, which Royer asserts were taken from defendant's "Radio Operators' Manual," Fourth Edition, published and copyrighted in 1939 a fact which is also demonstrated by inspection. In addition, Royer asserts that his manuscript was a revision and an expansion of a mimeographed text of a lecture course on radio started in the Bridgeport Trade School in 1941 by one Lippert, another employee of defendant. Lippert's affidavit, also included, states that his lectures were given commencing March 10, 1941; and he supplies as an exhibit a photostat of the mimeographed lectures. Here, too, inspection shows the direct copying which the affidavits assert. In other words, substantial bodies of material can be traced directly from the Lippert manuscript to the Royer manuscript to defendant's publication. Both Lippert and Royer deny any use, or even knowledge, of any of plaintiff's material.
It will be seen, therefore, that plaintiff's case turns upon the claimed copying of small details of textual exposition of scientific data. This, then, is the substantial point of plaintiff's claim, which in her affidavits she backs up with detailed comparisons of quoted material, listing, indeed, in her main charge some 108 claimed instances of copying. True, she does suggest that her purpose of conveying scientific radio information in simple form to the layman and her methods of carrying out her purpose were copied. But as we have pointed out above, since her general approach to the subject is quite different from defendant's, and since there can be no monopoly in attempting to bring science to the layman, it is clear that these individual instances of asserted copying constitute the nub of the case.
As pointed out in the Oxford Book case, supra, 2 Cir., 98 F.2d 688, it would not be strange under the circumstances to find some instances of duplication of the same scientific data. We have, however, examined with care all the material plaintiff has supplied, and are bound to say that proof of copying is actually nonexistent. In fact we are impressed with the amount of difference of statement which is still possible in dealing with standard scientific *144 materials. Apparently her view is that the variations are due to defendant's shrewdness in disguising its clever copying. But the nature of the difference in expression leads us to believe that such an explanation is beyond the bounds of all probability. Rather the comparisons indicate only different approaches to the same body of scientific material.
In view of the amount of copying alleged by plaintiff, it seems to us no more worth while than it did to the court in the Oxford Book case to try to analyze in detail each claimed instance. Perhaps a few references may show the grounds of our conclusion. It is to be noted that plaintiff, with that "obsessive conviction" that all similarities are inevitably plagiarism so frequent among authors, Dellar v. Samuel Goldwyn, Inc., 2 Cir., 150 F.2d 612, 613, in actual fact has manipulated the materials to demonstrate her convictions. Thus, by a judicious process of selection of words extracted from sentences and from the surrounding context, she finds some repetitive expressions. Needless to say, this method is not convincing. An example may indicate what comes to be an almost inveterate practice among her various instances. Thus she quotes from her first work, "Remember * * * thousands of these electrons moving," and matches it with two selections from different pages of defendant's book: "It should be remembered * * * and "Travel thousands of miles * * * moving procession of electrons * * * millions of electrons." We quote in the margin the full sentences, of which these are only selected parts; even thus torn from their context they show the tortured compression necessary to get any semblance of copying, not to speak of the implied taboo on the use of the ordinary word "remembered."[1]
Again, as showing the emphasis upon a word, plaintiff quotes, as "original to me," her Radio Primer definition, "Electricity is supposed to be an unbalanced condition of atoms." What she is trying to say cannot be considered original; the thought appears even in the ordinary dictionary, cf. Webster's New International Dictionary, 1939, tit. "electricity." But she finds copying in defendant's statement, "What happens as a result of this unbalance is the basis for electrical theory." On the other hand, defendant's full statement, quoted in the margin,[2] is a clear and simple expression of the electron theory, where the unoriginal dictionary word "unbalance" ("want of balance," according to Webster) certainly has no sinister significance.
Again she appears to stress similarities of definitions where equations are stated, as for instance her "E × I: Watts," as compared to defendant's "W = I × E," following standard, though not identical, definitions of the electrical term "watt." But even the dictionary defines a watt in terms of pressure and current, and there can be no reasonable inference of plagiarism in using standard symbols to say merely that power in watts equals pressure in volts times current in amperes. Another illustration *145 may be found in the various references to Ohm's Law, which defendant, The ABC's of Radio, page 9, introduces with a bit of background, viz: "Ohm early in the 19th century discovered that the ratio of the pressure to the current in a given circuit is constant. This is the fundamental law of the flow of electrical currents." Then follows the formula:
E
"R = __ where R = resistance in ohms
I E = pressure in volts
I = current in amperes."
This equation appears in plaintiff's first work with a different introduction as "a very important law which you must learn." Radio Operator's Primer, page 4. And in her second work, in the chapter on Ohm's Law following her statement in terms of pure definition: "ONE VOLT WILL PRESS 1 AMPERE THROUGH 1 OHM OF R." (All in capitals.) Radio Primer, page 6. But how better may one express this now simple, but basic, principle of physics than by using the usual symbols?
We realize that any discussion short of a meticulous exposition of each of her instances is likely to be thought unfair to an author convinced that she is the victim of literary theft. But our examples, chosen not as more striking than others (they are not), but partly because of references by the parties, partly because their conciseness permits of their use without so extensive quotations as others require, are of an exact piece, in our analysis, with all the rest and with her claim as a whole. Since (except so far as discussed below) she has stressed none of her 108 contentions more than others, we feel justified in the conclusion from our examination that no more forceful or persuasive proofs of plagiarism appear than those we have cited. Indeed, a sampling test indicates that for at least most, possibly all, of the basic definitions here used by both parties the source is well known not merely in the usual scientific texts, but even in the pages of a modern ordinarily complete dictionary!
There are, however, two matters deserving further discussion because of a possibly greater emphasis discernible as to them in her affidavits. The first appears because, in an obvious attempt to meet the difficulties suggested by the early dates of publication of the Lippert and Royer texts, she adds to her "Exhibit A" of the 108 instances of copying two further exhibits of duplicating, but specially classified, instances. The first, Exhibit B, comprises 19 instances of claimed copying from her pamphlets in both defendant's work and the Royer manuscript. The second, Exhibit C, contains 22 instances where, as she asserts, her material appears in defendant's book, but not in the Royer manuscript. If conviction is possible anywhere, it should be afforded, it seems, from this last exhibit. But actually it, as well as the companion Exhibit B, contains the same form of tortured argumentation which we find in the earlier instances; indeed, the reference to the equation for the watt discussed above comes from Exhibit C.
The other matter concerns her claim that defendant has copied a substantial error she has made. This is perhaps her most important contention, and should be decisive if sustained. As she states it, in her first book she set forth the older or "current" theory of electricity, where electricity is supposed to flow as a current from the positive to the negative terminals of the power supply. Discovering her mistake, she corrected it in her second work to state the electron theory, wherein electrons move in the opposite direction from the negative to the positive sides of the source. But since in defendant's work both theories appear, the argument runs that one must have been taken from plaintiff's earlier work and the other from her later work. If an expert answer is needed as to a development of theoretical reasoning which again is shown in the ordinary dictionary,[3] it is furnished by Lippert in his reply *146 affidavit on this point. He asserts that there is no mistake in the work, that the situation as to theory is stated therein, and that it is useful, and not misleading, to use the older conventional references to electric current for description of many of the simpler principles and "the more accurate method of analysis" of the electron theory to describe the more complex vacuum tubes.[4] He adds that the forms of expression employed by defendant are so unlike those of plaintiff as to show no copying a point demonstrated to be quite well taken on comparison of the statements themselves. Plaintiff in her reply affidavit concedes the essential point of the two theories concerning flow of current of electricity, and otherwise only revoices her suspicions. The whole incident supplies altogether too slight a basis to afford conviction that defendant General Electric's basic views of electricity were changed by the impact upon it of plaintiff's writings. But the fact that she could so vigorously make this claim demonstrates both the depth of her convictions of defendant's alleged thievery, as well as the tenuity of the basis she has offered for them.
Judgment affirmed.
NOTES
[1] "Remember, there are thousands of these electrons moving at the same spot at the same time, for there are many molecules and more than one electron is magnetized from each atom at once." Radio Operator's Primer, 1942, p. 4.
"It should be remembered that all waves carry energy or power." The ABC's of Radio, 1943, p. 7.
"Scientists have propounded a theory to explain electricity, called the electron theory. This states that all substances are made up of tiny particles of negative electricity called electrons, which can travel at many thousands of miles per second. An electric current is a moving procession of electrons. Their size is so small that millions of electrons are required to heat the filament of a flashlight bulb." Id. p. 8.
Perhaps an even more flagrant example, too long for quotation, is No. 10, set forth at length in defendant's brief.
[2] "The nucleus of an atom is made up of negative and positive charges, the positive charge predominating. Whirling around this nucleus are still more electrical charges called electrons. These electrical charges on an atom are usually electrically balanced, with some of the electrons tightly bound to the nucleus while others readily respond to an outside influence and can be broken away. When an electron is broken away from an atom, the atom's balance is disturbed and what happens as a result of this unbalance is the basis for electrical theory." The ABC's of Radio, p. 8.
[3] Cf. Webster's New International Dictionary, 1939, tit. "atomic theory"; "current"; "electricity"; "electron"; "nucleus," etc. A quite complete discussion of both these theories, now so well known for half a century or more, as well as of the other matters herein referred to, may be found in such a generally available source as the Encyc. Brit., 14th Ed. 1929, as under the titles "electricity," "electron," and "nucleus."
[4] As stated in defendant's work at p. 29, which also contains a diagram of a "half-wave rectifier" showing both the "`current' flow" and the opposite "electron flow." Explicit statements had appeared earlier in the Royer text, p. 3, and in the Lippert text, p. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590095/ | 270 S.W.3d 840 (2008)
Woodruff T. SPARACIO, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 07-1025.
Supreme Court of Arkansas.
January 10, 2008.
Thurman Ragar, Van Buren, for appellant.
No response.
MOTION FOR RULE ON CLERK; MOTION TO WITHDRAW AS COUNSEL
PER CURIAM.
This is the second motion for rule on clerk in this case. Previously, attorney Thurman Ragar filed a motion to be relieved as appellant Woodruff Thomas Sparacio's attorney on appeal. Sparacio was convicted of two counts of rape in Crawford County on May 26, 2007. On June 6, 2007, Sparacio's trial attorney, Naif Khoury, moved to withdraw as counsel. The trial court granted that motion and appointed Ragar that same day. Also on June 6, 2007, Ragar filed a notice of appeal on Sparacio's behalf. Following the June 6 notice of appeal, attorney Dana Reece filed a motion to set aside the order appointing Ragar as counsel. The trial court granted her motion on June 16, 2007.
When the record was tendered to this court, our clerk correctly declined to lodge it because the lower court's order extending the time to file the record did not comply with Ark. R.App. P.-Civ. 5. On October 3, 2007, Reece filed a motion for rule on clerk in this court seeking to lodge the record, and on October 5, 2007, Ragar filed a motion to withdraw as attorney on direct appeal.
On November 1, 2007, this court issued an opinion denying Reece's motion for rule on clerk on the grounds that, because the notice of appeal had already been filed, the trial court lacked jurisdiction to enter its order relieving Ragar as counsel. See Sparacio v. State, 371 Ark. 427, 266 S.W.3d 751 (2007) (per curiam). In that *841 opinion, we directed Ragar, who remained attorney of record, to file a motion for rule on clerk on Sparacio's behalf; we also stated that we would hold Ragar's motion to withdraw in abeyance until such time as he filed a motion for rule on clerk.
Ragar has now filed the motion for rule on clerk. In it, he acknowledges that the record was untimely tendered due to an error on his part. This court clarified its treatment of motions for rule on the clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is "good reason." McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Ragar has candidly admitted fault. The motion for rule on clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Ragar also asks this court to grant him permission to withdraw as attorney of record. In his original motion, Ragar noted that he was a full-time public defender with a full-time state-funded secretary and thus not eligible to be compensated for appellate work. See Jordan v. State, 354 Ark. 27, 120 S.W.3d 99 (2003) (per curiam). For that reason, he asked to be relieved as counsel, and we now grant the motion to be relieved on that ground.
According to the record and motions filed by Ragar and Reece, Reece was retained by Sparacio to represent him on appeal. As a result, it appears that Sparacio is no longer indigent at this time. In our November 1, 2007, opinion, we said that Reece should file a motion for appointment of counsel if she wished to represent Sparacio as an appointed attorney. She has not submitted such a motion, and, as Reece was apparently paid by Sparacio to represent him, we direct Reece to file within fifteen days an entry of appearance so that the appeal may proceed.[1]
NOTES
[1] If it is appellant Sparacio's contention that he is indigent at this time and entitled to appointment of counsel to represent him on appeal, it is his responsibility to submit to this court a motion for appointment of counsel with his current affidavit of indigency appended as required by Ark. Sup.Ct. R. 6-6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590101/ | 563 F.Supp. 460 (1983)
SKOKIE VALLEY BEVERAGE COMPANY, a corporation, Plaintiff,
v.
BEER, SOFT DRINKS, WATER, FRUIT JUICE, CARBONIC GAS, LIQUOR SALES DRIVERS, HELPERS, INSIDE WORKERS, BOTTLERS, WAREHOUSEMEN, SCHOOL, SIGHTSEEING, CHARTER BUS DRIVERS, GENERAL PROMOTIONAL EMPLOYEES OF AFFILIATED INDUSTRIES, LOCAL UNION NO. 744, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendant.
No. 83 C 2591.
United States District Court, N.D. Illinois, E.D.
April 19, 1983.
*461 William R. Carney, Michael J. Halloran, Michael A. Forti, Bell, Boyd & Lloyd, Chicago, Ill., for plaintiff.
Marvin Gittler, Edwin H. Benn, Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Ltd., Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
GETZENDANNER, District Judge:
This action is before the court on the motion of plaintiff Skokie Valley for a preliminary injunction. Jurisdiction is based on 29 U.S.C. § 185(a). The court decides Skokie Valley's motion on the basis of the parties' briefs and after review of cases cited by the parties. The essential facts are not in dispute, and the court relies on statements of the facts in the parties' briefs. For the following reasons, the court denies Skokie Valley's motion.
I
Skokie Valley is a beverage distributor, employing members of the defendant Union pursuant to a collective bargaining agreement. Article 47, § 1 of that agreement sets out a procedure for resolving disputes between the parties, including referral of disputes to impartial arbitrators. Article 47, § 1, step 2 provides that the arbitrator's findings shall be final and conclusive, and that no strike or lockout shall occur pending a final determination, except as otherwise provided. Article 47, § 1, step 3 allows the Union to strike on 10 days' notice if Skokie Valley fails to pay wages.
The present controversy began in December 1981, when Skokie Valley discharged its employee Robert Warger, a member of the Union. Grievance procedures apparently were followed, and the matter eventually was referred to Arbitrator Peter M. Kelliher. On March 15, 1983 Kelliher rendered a decision, concluding that Skokie Valley had violated the collective bargaining agreement by discharging Warger. Kelliher directed Skokie Valley "to reinstate the grievant and make him whole for all monies and benefits lost as a result of his discharge."
On March 21 Skokie Valley conditionally reinstated Warger pending judicial review of Kelliher's decision, but it did not pay him any lost compensation, taking the position that it had no obligation to do so until Warger reduced Kelliher's award to judgment in a judicial proceeding. On April 7 or 8 the Union notified Skokie Valley that it considered its withholding of Warger's back pay to be a failure to pay wages, entitling the Union to strike after 10 days under Article 47, § 1, step 3.
On April 15 Skokie Valley presented a grievance, raising issues of contract interpretation regarding the finality of an arbitrator's decision, the applicability of step 3 to its failure to pay Warger his lost compensation, and the permissibility, under the Agreement, of the threatened strike. Also on April 15 Skokie Valley filed the present lawsuit, asking the court to vacate Kelliher's *462 decision and to restrain or enjoin the threatened strike. That same day Skokie Valley moved for a temporary restraining order. The parties filed memoranda and made brief oral presentations, and the court denied Skokie Valley's motion. On April 18 Skokie Valley filed the present motion for a preliminary injunction against the threatened strike.
II
The competing goals of 29 U.S.C. § 104 and 29 U.S.C. § 185(a) have been balanced in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), and Buffalo Forge Co. v. United Steel Workers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). See also Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n, ___ U.S. ___, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982); Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). When a union has agreed to arbitrate disputes instead of striking, then federal courts can enjoin the union from striking pending arbitration of the dispute underlying the strike. Such an injunction is proper, as it issues in aid of arbitration. Boys Markets, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199. When the arbitrable issue is the permissibility of the strike itself, rather than some other underlying issue, then an injunction should not issue. In such a case the strike does not constitute an evasion of an agreement to arbitrate disputes; further, issuance of an injunction could interfere with subsequent arbitration of the permissibility of the strike, as the court's ruling might overshadow or prejudge the arbitrator's decision. Buffalo Forge, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022. See also Design & Manufacturing Corp. v. UAW, 608 F.2d 767 (7th Cir.1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2158, 64 L.Ed.2d 791 (1980); Zeigler Coal Co. v. Local No. 1870, 566 F.2d 582 (7th Cir.1977), cert. denied, 436 U.S. 912, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978).
Skokie Valley offers two justifications for issuance of an injunction in this case. First, Skokie Valley argues that the issues grieved on April 15 are arbitrable disputes pending resolution of which the Union has agreed not to strike. These issues include the finality of the arbitrator's decision, the applicability of step 3 to the lost compensation award, and the permissibility of the threatened strike. Second, Skokie Valley argues that arbitration of the initial dispute, Warger's discharge, is still pending, since the arbitration process includes judicial review of the arbitrator's decision; until a final determination by judicial review, Skokie Valley argues, the Union is bound contractually not to strike.
Skokie Valley's first argument, taken by itself, is insufficient. Skokie Valley identifies issues grieved on April 15 and seeks to enjoin the threatened strike pending arbitration of these grievances; however, the court believes, contrary to Skokie Valley's position, that these grievances all, in different forms, question the permissibility of the threatened strike, rather than raising any arbitrable dispute underlying the threatened strike. For instance, the question of the finality of the arbitrator's decision does not underlie the threatened strike; it really is just one way of asking whether the threatened strike violates the no-strike agreement, since the Union has agreed not to strike only until there is a final determination. The Court of Appeals for the Second Circuit has stated succinctly: "[T]he mere arbitrability of the issue of whether a strike or work stoppage violates an express or implied no-strike clause does not entitle the employer to `Boys Markets' injunctive relief; there must be an underlying arbitrable grievance." Elevator Manufacturers' Ass'n v. Local 1, 689 F.2d 382, 385 (2d Cir.1982). See also Buffalo Forge, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022. As no other underlying dispute has been suggested, the success of Skokie Valley's first argument depends on the success of its second argument. It must appear that the dispute over Warger's discharge still can be considered an arbitrable dispute pending resolution of which the Union has agreed not to strike; or, stated differently, it must *463 appear that Kelliher's decision was not a "final determination" for purposes of Article 47, § 1, step 2.
Since this threshold question is a difficult one of interpreting the language of the collective bargaining agreement, and since Skokie Valley already has referred it to the grievance and arbitration process, it might be held that the court should not issue an injunction, since in doing so it would overshadow and prejudge an arbitrator's resolution of the question. Waller Brothers Stone Co. v. United Steelworkers, 620 F.2d 132 (6th Cir.1980). (Additionally, the existence of an arbitrable dispute over step 3 might preclude a decision by this court under Waller Brothers.) On the other hand, Elevator Manufacturers' Ass'n holds that courts should approach these threshold questions. 689 F.2d at 386. It is not clear whether serious questions of interpretation were present in Matson Plastering Co. v. Operative Plasterers, 633 F.2d 1307 (9th Cir.1980), cert. denied, 454 U.S. 816, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981), or in Eaton Corp. v. Machinists and Aerospace Workers, 580 F.2d 254 (7th Cir.1978). Because the law is not clear in this area, the court will not follow Waller Brothers; instead it will approach the necessary threshold question of whether arbitration over Warger's discharge, pending final determination of which the Union has agreed not to strike, has reached a final determination.
III
Skokie Valley has touched on, but not actually advanced, one possible argument against the finality of the arbitrator's decision. Counsel for Skokie Valley noted in court that the arbitrator's award of lost compensation was unliquidated, and he referred to the difficulty of complying with an unliquidated award. Skokie Valley has not raised this point in its briefs in connection with the finality of the arbitrator's decision. More importantly, Skokie Valley has not indicated that there is any substantial dispute over the liquidated amount of this award.
Skokie Valley has cited a case which holds, quite explicitly, that for Boys Markets purposes the arbitration process includes judicial review; a strike may be enjoined under Boys Markets until judicial review has been had. Sea-Land Service v. Longshoremen's Ass'n, 625 F.2d 38, 41-42 (5th Cir.1980). Sea-Land relies on Anheuser-Busch, Inc. v. Local 133, 477 F.Supp. 742, 747 (E.D.Mo.1979), and on statutes and other cases less directly on point. The court is not persuaded by these cases. The language quoted from Anheuser-Busch is taken from this passage:
The Union has the option, which it recognizes, to institute an action under 29 U.S.C. § 185 to enforce the Seidman award.... To allow the Union to ignore its peaceful option while it seeks to enforce the award in the streets would in fact render the valuable arbitration process largely nugatory. A request for judicial enforcement may be viewed as the final step in the arbitration process.
Id. at 747. The court believes that this passage forgets that unions legally are entitled to enforce their rights by striking. Only to the extent they have contracted away their right to strike over disputes may they be enjoined from doing so. The contours of an agreement not to strike must be determined as a matter of contract interpretation. Reference to enforcing the arbitrator's award "in the streets," as opposed to exercise of the union's "peaceful option," may beg the question of whether the Union's agreement not to strike ends with the arbitrator's rendering of a decision. Further, it is questionable whether the arbitration process is rendered "largely nugatory" if parties are hindered in their efforts to overturn arbitrators' decisions.
Sea-Land itself relies heavily on the availability of judicial enforcement and review for its position that judicial enforcement is part of the arbitration process, and that Boys Markets injunctions therefore may continue through post-arbitration judicial proceedings. The Court of Appeals concludes that an agreement not to strike will end with an arbitrator's decision only if the collective bargaining agreement expressly *464 so provides, or if the agreement expressly precludes judicial review or enforcement; the Court thus distinguishes New York v. Local 144, 410 F.Supp. 225, 230 (S.D.N.Y.1976), in which the court refused to enjoin a strike after an arbitrator's decision in favor of the union.
This court turns to the language of Article 47, § 1, step 2, to construe the terms of the agreement. Step 2 provides that findings of the Joint Grievance Committee or of an arbitrator "shall be final and conclusive and [that] no strike or lockout shall occur pending a final determination except as hereinafter provided." Step 3 allows the Union to strike on 10 days' notice should Skokie Valley fail to pay wages. No explicit mention is made of judicial review or enforcement. It is provided that "[n]othing herein contained shall authorize the arbitrator to alter the terms and conditions of this Agreement or make a new Agreement"; this language arguably prescribes a standard for judicial review, but more plausibly this language merely limits the arbitrator's power to remedy a breach by altering the agreement.
The court is not convinced that there has been no "final determination" until an opportunity for judicial review has been had. Article 47 sets out procedures for resolving disputes, and the Union agrees not to strike during the pendency of those procedures. Skokie Valley's right to limited judicial review is not created by the terms of the agreement, and it does not depend on explicit mention of that right in the agreement. This does not mean, however, that the Union's agreement not to strike should be read as extending to the pendency of procedures not prescribed by the agreement and mentioned nowhere therein. The Court in Sea-Land held that a no-strike agreement would extend to judicial enforcement in the absence of an express agreement otherwise, but this court is not convinced that that presumption is proper. Agreements not to strike pending arbitration may sometimes be inferred from the presence of arbitration procedures in a collective bargaining agreement. See Buffalo Forge, 428 U.S. at 407, 96 S.Ct. at 3147. The court is not convinced, though, that it should presume an agreement not to strike pending judicial review, a procedure not mentioned in the agreement.
It should be remembered that Boys Markets overcame the facially absolute prohibitions of 29 U.S.C. § 104 by reasoning that 29 U.S.C. § 185(a), which calls for enforcement of labor agreements by federal courts, allowed courts to require specific performance of union agreements not to strike. The underpinnings of Boys Markets do not seem to favor free inference of no-strike agreements beyond what fairly can be found within the language of the collective bargaining agreement. The court in Boys Markets also relied on a general policy of encouraging arbitration of labor disputes. The court doubts that this policy supports free inference of union agreements not to strike during the pendency of proceedings intended to overturn an arbitrator's award.
The court recognizes that some argument can be made to the effect that enjoining strikes pending judicial review does encourage arbitration. It may be that employers are hesitant to commit adjudication of their legal rights to arbitrators, and that this concern would be soothed by knowledge that they could obtain unpressured judicial review of serious arbitral errors. The very limited nature of judicial review of arbitrators' decisions suggests that encouraging judicial review probably does not encourage broad use of arbitration, which usually is thought to offer speedier resolution of disputes than courts can offer. In any event, parties easily can contract as they wish on this point. In each case, as here, the court must refer to the agreement in question.
Skokie Valley argues that its lawful right to seek judicial review will be frustrated if the Union is allowed to coerce compliance by striking. Of course, striking also is a lawful right, unless that right has been contracted away. Employers can ensure that they will have unharried recourse to judicial review by bargaining for an agreement not to strike pending such review. The present agreement makes no *465 mention whatever of judicial enforcement or review. As stated above, while there always is some room for reading between the lines of a contract, the court will not presume, absent some basis in the language of the agreement, that the no-strike agreement extends to the pendency of procedures not mentioned in the agreement.
Skokie Valley bears a heavy burden in moving for a preliminary injunction. On this motion, at least, Skokie Valley has not convinced the court that its interpretation of the agreement is correct. Skokie Valley's entire argument necessarily hinges on the argument that the Warger dispute continues to be arbitrable, in the sense that another stage of the arbitration process, judicial review, remains to be completed. The court has not been convinced that this is so.
Additionally, the court notes that Skokie Valley would have great difficulty proving that it would be irreparably harmed by the court's failure to issue an injunction. It appears that Skokie Valley need only make monetary payments to Warger to forestall the threatened strike. Skokie Valley's argument for equitable relief is based on the possibility that Warger will dissipate the money and become judgment-proof before Skokie Valley could recover the payment, should it ultimately prevail; Skokie Valley also refers to the weakened bargaining position it will hold once the disputed payment has been made. Skokie Valley informs the court that the payment would be "in excess of $60,000." Given all the circumstances of the case, the court cannot say that the equities would favor granting Skokie Valley the injunction it seeks.
Therefore, Skokie Valley's motion for a preliminary injunction is denied. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586384/ | 162 P.3d 1095 (2007)
213 Or. App. 588
STATE
v.
WYATT.
Court of Appeals of Oregon.
June 20, 2007.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744906/ | 998 So. 2d 617 (2008)
MORRIS
v.
STATE.
No. 3D08-2728.
District Court of Appeal of Florida, Third District.
December 17, 2008.
Decision without published opinion. Cert.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744925/ | 998 So. 2d 617 (2008)
NAVARRO
v.
ROSS STORES, INC.
No. 3D08-2870.
District Court of Appeal of Florida, Third District.
December 24, 2008.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035755/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1589
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Allen Gaines, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 23, 2004
Filed: August 3, 2004
___________
Before MURPHY, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
In this appeal following revocation of his supervised release, Allen Gaines
seeks reversal on the basis that the district court1 denied him his right of allocution.
Having carefully reviewed the record, we conclude that Gaines’s right of
allocution was satisfied. See Fed. R. Crim. P. 32(i)(4); United States v. Patterson,
128 F.3d 1259, 1260-61 (8th Cir. 1997) (per curiam) (right of allocution applies to
1
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
supervised-release-revocation hearing). Gaines testified at the hearing before
sentencing, at which time he made his views known regarding the alleged violations,
the progress he had made on supervision, and his desire to be continued on supervised
release without modification. See United States v. Kaniss, 150 F.3d 967, 969 (8th
Cir. 1998); United States v. Iversen, 90 F.3d 1340, 1345-46 (8th Cir. 1996)
(defendant was effectively granted allocution, even though court did not ask her if she
had anything to add regarding sentencing, where she testified on her own behalf such
that her views regarding sentencing were known and it was clear that she knew she
had right to speak on any subject prior to sentencing and availed herself of that right).
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/784664/ | 354 F.3d 511
Adremy DENNIS, Petitioner-Appellant,v.Betty MITCHELL, Warden, Respondent-Appellee.
No. 99-4460.
United States Court of Appeals, Sixth Circuit.
Argued December 2, 2003.
Decided and Filed December 29, 2003.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Linda E. Prucha (briefed), Public Defender's Office, Ohio Public Defender's Com'n, Columbus, OH, John F. McCaffrey (argued and briefed), McLaughlin & McCaffrey, Cleveland, OH, for Appellant.
Jonathan R. Fulkerson, Henry G. Appel (argued and briefed), Attorney General's Office of Ohio, Columbus, OH, for Appellee.
Before SUHRHEINRICH, SILER, and DAUGHTREY, Circuit Judges.
OPINION
SUHRHEINRICH, Circuit Judge.
1
Petitioner Adremy Dennis was convicted by an Ohio jury of the aggravated murder of Kurt Kyle and sentenced to death. After exhausting his direct appeals and state post conviction remedies, Dennis sought a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. The district court dismissed the petition. For the following reasons, we affirm the district court's dismissal of Dennis's habeas petition.
I. Background
A. Facts
2
The Ohio Supreme Court made the following factual findings on direct review:
3
During the early morning hours of June 5, 1994, defendant-appellant, Adremy L. Dennis, and Leroy "Lavar" Anderson stopped Dean R. Pizer in the Highland Square area of Akron and demanded money. Pizer escaped, even though a shotgun blast was fired at him as he fled. Shortly thereafter, Dennis shot and killed Kurt O. Kyle during a robbery in front of Kyle's home at 818 Bloomfield Road. Dennis later admitted he shot Kyle during a robbery, and he was subsequently convicted of aggravated murder, attempted aggravated murder and aggravated robbery, and sentenced to death.
4
Late on Saturday, June 4, and in the early morning hours of Sunday, June 5, Dennis and Anderson decided to go to a bar and "meet some chicks." Anderson spoke of "robbing somebody," and the pair armed themselves with weapons: Dennis with a sawed-off shotgun and Anderson with a .25 caliber handgun. As the pair proceeded to the bar, the shotgun, according to Dennis, accidently went off. Dennis then reloaded the weapon. Before arriving at the bar, the two smoked marijuana.
5
After some drinks, Anderson and Dennis left the bar and encountered Dean Pizer in an alley near West Market Street and South Highland Avenue. The "taller one" of the two, whom Pizer identified as Dennis, was wearing a long black leather coat and told Pizer, "Give me your money. * * * Don't try and run, don't try and run. You are going to die tonight, you are going to die." Pizer testified that he went backwards, slid and rolled down a hill, then ran away unharmed. He heard a gunshot "just left of me. There was a trash can or something got hit."
6
That same night, Kurt Kyle had raced at Barberton Speedway and afterwards hosted several friends and family members at his home for a cookout and socializing. Later, as one of his guests, Martin Eberhart, was leaving, Kyle walked with him to his car where the two continued conversing for a short time. While Eberhart was seated in his car talking with Kyle, they heard a loud noise, which Kyle told Eberhart was a gunshot. About three minutes later, two black males approached them in the driveway, out of the view of Kyle's other guests. The man Eberhart identified as Anderson was wearing a green and orange Miami Hurricanes Starter jacket, and demanded money while pointing a gun a Eberhart's neck. Eberhart slowly reached under the car seat for his wallet and handed Anderson $15.
7
At that time, Dennis, whom Eberhart described as wearing a long, three-quarter-length dark coat, asked Kyle for money. However, Kyle searched through his pockets and told Dennis that he had no money with him. Dennis then pulled out a sawed-off shotgun and shot Kyle in the head at point-blank range. Kyle died instantly of hypovolemic shock (loss of blood) due to a gunshot wound that severed both carotid arteries. According to Eberhart, the two assailants ran away together "sprinting very fast."
8
Anita Foraker, who lived in the neighborhood, was out walking her dog at around 1:30 a.m. that morning and heard a "loud pop type of sound." About a minute later, she observed two young black males headed in the opposite direction running by her on the other side of Bloomfield Road. She heard one say to the other, "Did you get it?"
9
A few days after the murder, Akron police received an anonymous phone call stating that someone at 371 Grand Avenue knew about the homicide that past weekend. Detective Donald L. Gaines and another detective went to the address, where they met Shirley Morgan and told her that a possible suspect was staying at her house. Morgan invited the detectives in and gave them permission to look around the house and to speak to her son, seventeen-year-old Lavar Anderson. When the detectives went down to the basement, they noticed a Miami Hurricanes jacket and a long, dark overcoat hanging up in the far corner on a bedrail. At that time, they took Anderson into custody, and he provided detectives information about the location of the murder weapon.
10
After procuring a search warrant, police seized several items from Morgan's basement, including the two coats, a .25 caliber pearl handle handgun, a 20 gauge sawed-off shotgun, and seven shotgun shells.
11
Upon completing the search of Morgan's home, Gaines received a call from two officers at 120 Burton Avenue, which was in the same general neighborhood. The police surrounded the house on Burton and thereafter apprehended Adremy Dennis.
12
At the police station, Dennis was advised of his Miranda rights, which he waived. Dennis told several versions as to his whereabouts on June 4-5, 1994 to Detectives Gaines, Lacy, and Offret. After Dennis's second statement, Gaines produced a sawed-off shotgun, which Dennis immediately claimed was his own. In his fourth statement to detectives, Dennis admitted that he and Anderson had planned some robberies that night and admitted holding up Pizer, Eberhart and Kyle. However, while Dennis admitted aiming the sawed-off shotgun at Kyle, he also claimed the gun went off accidentally. Dennis agreed to allow detectives to tape his statement.
13
In his taped statement, Dennis said that he and Anderson had smoked marijuana and then drank at a bar before the robberies and murder. While Dennis admitted he fired the sawed-off shotgun three times that night, he asserted that each shot was accidental and that he "could barely focus" when they came upon Kyle and Eberhart. After shooting Kyle, Dennis claimed he almost fell down and that Anderson had to help him flee the scene.
14
Yellow shotgun shell casings were found a few days after the murder. One was found in the area where Pizer was accosted, the other was discovered in front of Kyle's home. Nancy E. Bulger, a forensic scientist with the Bureau of Criminal Identification and Investigation ("BCI"), determined that the two casings were fired from the sawed-off shotgun that Dennis identified as his own.
15
State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096, 1099-1101 (1997).
B. Procedural History
16
Dennis was charged with one count of aggravated murder, one count of attempted murder, three counts of aggravated robbery, and one count of possession of dangerous ordnance. All of the counts carried a firearms specification, and the dangerous ordnance charge also carried a physical-harm specification. The aggravated murder count also carried two death specifications: murder during an aggravated robbery, where Dennis was the principal offender (Ohio Rev.Code § 2929.04(A)(7)); and murder committed as a course of conduct involving the killing or attempt to kill two or more persons (Ohio Rev.Code § 2929.04(A)(5)). Id. at 1101.
17
Dennis's trial began on December 12, 1994. The jury convicted him of all charges. After a mitigation hearing, the jury recommended the death penalty. On December 29, 1994, the court agreed and sentenced Dennis to death. Id.
18
Dennis appealed. On May 8, 1996, the Ohio Court of Appeals rejected his claims. See State v. Dennis, No. 17156, 1996 WL 233501 (Ohio Ct.App. May 8, 1996). Dennis appealed to the Ohio Supreme Court. On September 24, 1997, that court affirmed Dennis's conviction and sentence. See State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997). The United States Supreme Court denied certiorari. See Dennis v. Ohio, 522 U.S. 1128, 118 S.Ct. 1078, 140 L.Ed.2d 136 (1998).
19
Dennis also exhausted his post-conviction remedies, to no avail. See State v. Dennis, No. 18410, 1997 WL 760680 (Ohio Ct.App.1997) (affirming denial of post-conviction relief); State v. Dennis, No. 98-13, 690 N.E.2d 1287 (Ohio March 11, 1998).
20
On June 30, 1998, Dennis field a petition for writ of habeas corpus. On October 1, 1999, the district court denied his petition and denied Dennis's request for a certificate of appealability. This Court granted Dennis a certificate of appealability as to six issues.
II. Standard of Review
21
We review a district court's legal conclusions in habeas actions de novo and its factual findings for clear error. Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001). If, however, the district court bases its decision on the state trial court transcript, and makes no findings of fact, we review the district court's fact findings de novo as well. Id.
III. AEDPA
22
Dennis's petition was filed on June 30, 1998, after the effective date of the Antiterrorism and Effective Death Penalty Act. Pub.L. 104-132, 110 Stat. 1214 ("AEDPA"). Its provisions therefore apply. Id.
23
"Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, ... and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003) (internal citations and quotation marks omitted). One of the mechanisms for accomplishing these goals was an amended version of 28 U.S.C. § 2254(d)(1), which places "new constraint[s] on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).1
24
The Act provides in relevant part as follows:
25
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
26
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
27
(2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28
28 U.S.C. § 2254(d).
29
In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained the meaning of "contrary to" and "unreasonable application." A state court's legal decision is "contrary to" clearly established federal law under § 2254(d)(1) if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided a case differently than the Supreme Court's decisions on materially indistinguishable facts. Id. at 412-13, 120 S.Ct. 1495. An "unreasonable application" occurs when the state court correctly identified the correct legal principle from Supreme Court precedent but unreasonably applied that principle to the facts of the case before it. Id.
30
"[C]learly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412, 120 S.Ct. 1495. The state court decision need not cite Supreme Court precedent, or even reflect awareness of Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).2
31
Similarly, a federal habeas court may not grant habeas relief under § 2254(d)(2) merely because it disagrees with a state trial court's factual determination. Rather, the state court's factual determination must be "objectively unreasonable" in light of the evidence presented during the state proceedings. Furthermore, a state court's factual determinations are presumed correct, and can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
IV. Analysis
A. Failure to Exclude Juror Harris
32
Dennis contends that the trial court violated his constitutional right to a fair trial in violation of the Sixth and Fourteenth Amendments because the trial court failed to excuse Juror Terri Harris for cause. During voir dire, potential jurors were asked whether any had been the victim of a crime of violence. Harris answered "no."3 After the jury began penalty phase deliberations, a police detective contacted the prosecutor, asking that Harris be allowed to take a break from deliberations in order to sign a criminal complaint along with her two sisters. Although defense counsel and the prosecutor knew that Harris was going to be a witness in a case where the defendant was charged with the crime of gross sexual imposition, they did not know until the penalty phase that she was a victim. Upon learning that Harris was actually a victim, the prosecutor promptly informed defense counsel and the court.
33
The trial court called Harris into chambers and questioned her. Harris explained that, when asked if she had ever been a victim of a violent crime, she in turn asked the judge's bailiff, Alys, about the definition of violent crime, and "decided that what happened to me by your definition of violent would not be violent." She further explained that her answer was based strictly on the definition of murder. The trial court indicated that gross sexual imposition is considered a violent crime, but that it understood how Harris had interpreted it, and "that it might not have been clear as it probably should have."
34
The trial court also asked Harris if she thought the fact that she was a victim would interfere with her ability to evaluate this case. Harris responded:
35
Absolutely not. I feel that I am a professional and I feel that what happened to me has nothing to do with what happened to the Kyle family or Adremy Dennis.
36
I feel that I can handle it professionally and there is parts to everyone's personality and I feel very strongly that I can separate myself from that.
37
You asked me to do a job and I'm doing a job.
38
When asked by the trial court whether she could "separate out your experience as a victim from this particular case and not let anything carry over that would cause you to identify more with victims," Harris responded that the two cases were not comparable. Finally, the court asked Harris whether she foresaw any possible problem. She responded that she did not, and stated that she was able to separate her emotions from her duty, just as the trial court had instructed. The trial judge then asked counsel if they had "anything." Defense counsel responded "[t]hat's fine." The prosecutor indicated that he had no questions. At that point the trial judge directed Harris to return to the jury room.
39
After Harris returned to the jury room, the trial court asked counsel if they wanted to put anything on the record. Defense counsel replied no. The prosecutor informed the trial court that, although they knew prior to trial that Harris was a witness, they had just learned that Harris was a victim.
40
The trial court then made the following findings of fact:
41
I think that she did give it some thought. She was not intentionally trying to conceal anything. She just did not recognize what we recognize, that a sexual abuse victim is to us a violent crime and I gather that is not terribly clear in the way we ask it.
42
And so she did make that inquiry of Alys and Alys' response was, well, when she says are they talking about murder, violent, she said I would imagine so, that she just dismissed it as not being something that would be covered under violent crime.
43
I was also satisfied with her answer as to her ability to handle it.
44
Upon this ruling, defense counsel did not ask that Harris be removed. However, after the jury returned and recommended to the court that Dennis be sentenced to death, Dennis moved for a mistrial, claiming that Harris was biased. The trial court denied the motion, ruling that Harris was voir dired by the court, the prosecutor, and by defense counsel, and thereafter passed to continue on with her service.
45
The Ohio Supreme Court held that the trial court had not abused its discretion by concluding that Harris was impartial and could remain on the jury.
46
During the jury's penalty-phase deliberations, the trial court learned that Harris had been a victim of sexual abuse as a child, when a detective asked the court to momentarily excuse Harris from deliberations in order to sign a criminal complaint. The court brought Harris into chambers before the parties and conducted a voir-dire examination of her at that time. Harris explained that she had decided not to mention the sexual abuse during the original voir-dire examination because she did not feel it fit the definition of violent crime. She reached this conclusion after asking the trial judge's bailiff during jury selection for a definition of "violent crime." Harris indicated that at that time, she concluded that her experience was not "violent" when compared to murder, and therefore, did not bring it to the court's attention.
47
The court questioned Harris extensively, and she was adamant that her status as a victim of sexual abuse had nothing to do with what happened to the Kyle family or Dennis, and that she could separate the two experiences and be impartial. The court asked defense counsel if they had anything they wished to put on the record, and defense counsel indicated they did not. After Harris returned to the jury room, counsel for both sides informed the court that just prior to trial they became aware of the fact that Harris had been a witness to sexual abuse. Counsel for both parties agreed that it probably wasn't necessary for them to act upon it. However, at the end of the trial, defense counsel filed a motion for mistrial upon learning that Harris was a victim of sexual abuse, and not just a witness.
48
A trial court enjoys broad discretion in determining a juror's ability to be impartial. State v. Williams (1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 351, 452 N.E.2d 1323, 1331. The trial court's decision to allow Harris to remain on the jury did not amount to an abuse of discretion, especially in light of the court's voir-dire examination of Harris conducted in chambers during penaltyphase deliberations. See State v. Maurer, (1984), 15 Ohio St.3d 239, 250-251, 15 OBR 379, 389, 473 N.E.2d 768, 781. Accordingly, Proposition of Law No. 5 is overruled.
49
State v. Dennis, 683 N.E.2d at 1103.
50
On habeas review, the district court held that the Ohio Supreme Court's opinion was not an unreasonable application of clearly established federal law, namely McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). See Dennis v. Mitchell, 68 F.Supp.2d 863, 885-89 (N.D.Ohio 1999).
51
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. The right to an impartial jury is applicable to the states via the Fourteenth Amendment. See Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See also Morgan v. Illinois, 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)(discussing Irvin and Turner). Furthermore, "due process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment." Morgan, 504 U.S. at 727, 112 S.Ct. 2222. The voir dire is designed "to protect [this right] by exposing possible biases, both known and unknown, on the part of potential jurors." McDonough, 464 U.S. at 554, 104 S.Ct. 845. Therefore, "[t]he necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious." Id.
52
When a juror's impartiality is at issue, the relevant question is "did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). A trial court's determination of a juror's credibility is entitled to "special deference." Id. at 1038, 104 S.Ct. 2885; Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (noting that in determining whether a juror is biased, "deference must be paid to the trial judge who sees and hears the juror"). As previously noted, a trial court's finding that a juror was impartial is entitled to a presumption of correctness, rebuttable only upon a showing of clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Patton, 467 U.S. at 1036, 104 S.Ct. 2885 (noting that juror impartiality is a question of historical fact). Further, the question for this Court is simply whether the state trial court's decision was "fairly supported by the record," not whether it was right or wrong in its determination of impartiality. Witt, 469 U.S. at 424, 105 S.Ct. 844.
53
The McDonough test governs cases where it is alleged that a juror intentionally concealed information. Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir.1995).4 In McDonough, the Supreme Court held that, in order to obtain a new trial based on a juror's non-disclosure during voir dire, the defendant "must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556, 104 S.Ct. 845. The McDonough court explained that "[t]he motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." Id.
54
In McDonough, a juror failed to reveal during voir dire in a products liability case that his son had broken his leg as a result of an exploding tire when asked whether anyone in his immediate family had ever sustained a severe injury. McDonough, 464 U.S. at 549-50, 104 S.Ct. 845. In holding that the respondents were not entitled to a new trial, the Supreme Court found that the juror "apparently believed that his son's broken leg sustained as a result of an exploding tire was not such an injury." Id. at 555, 104 S.Ct. 845. The Court noted that jurors "may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges." Id.
55
We agree with the district court that the Ohio Supreme Court's ruling is not contrary to the rule of McDonough. As the district court noted, Harris explained that under the court's definition, she believed that she had not been a victim of a violent crime. Further, as the district court observed, upon hearing her explanation and observing her demeanor, the trial judge accepted Harris's explanation, and acknowledged that the court's definition of violent crime was not entirely clear. Thus, as in McDonough, juror Harris's misunderstanding of a legal term did not denote dishonesty.
56
In short, the Ohio Supreme Court's ruling that the trial court did not abuse its discretion in retaining juror Harris is not contrary to the foregoing clearly established Federal law. See 28 U.S.C. § 2254(d)(1). Consistent with Supreme Court precedent, the trial judge examined the witness to determine if she was impartial. The trial judge found as a matter of fact that Harris had not been intentionally deceitful during the original voir dire, that she could set aside her personal feelings, and that she was impartial. Thus, consistent with United States Supreme Court precedent, the trial judge established Harris's impartiality, during his in-chambers voir dire. Harris repeatedly indicated that she could be a fair and impartial juror, and the trial judge made a credibility determination that her misunderstanding of the term violence was honest. The trial court's fact findings are presumed correct, see 28 U.S.C. § 2254(e); Patton. The Ohio Supreme Court's decision is also not "an unreasonable determination of the facts in light of the evidence presented" to the state trial court.
57
Finally, it must be remembered that defense counsel was given the opportunity to question Harris directly during the in-chambers voir dire and to place any objections on the record, but failed to do so. Apparently, defense counsel did not doubt her veracity at the time either. The district court properly rejected this claim.
58
B. Improper Removal of Jurors Spence and Williams
59
Dennis contends that the trial court improperly removed two jurors, Kathleen Spence and Ruby Williams, for cause based on their views of the death penalty. The Ohio Supreme Court held as follows:
60
In State v. Frazier (1995), 73 Ohio St.3d 323, 327, 652 N.E.2d 1000, 1006, we reaffirmed the standard in Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841,
61
"`The proper standard for determining when a prospective juror may be excluded for cause based on his views on capital punishment is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.'"
62
Prospective juror Spencer stated unequivocally during voir dire that she did not feel she could recommend the death sentence. She further stated that she would have a "lot of trouble" imposing death, even if the court instructed the jury that it was worthy of consideration. Spencer also indicated that she did not feel she could put her beliefs aside and follow the law. When asked if she could recommend the death penalty, Spencer replied, "I don't feel I could really do that."
63
Prospective juror Williams also indicated that based on religious and moral grounds, she could not follow the law and recommend the death penalty. After further questioning, Williams insisted that "[i]t will be a big problem for me to sign and say that, yes, I believe in the death penalty or I believe this person should be given the death penalty."
64
We have previously stated that where the trial court is left with a definite impression that a prospective juror would be unable to faithfully and impartially apply the law, deference must be given to the trial judge who sees and hears the prospective juror. State v. Beuke (1988), 38 Ohio St.3d 29, 38, 526 N.E.2d 274, 284-85. The trial court did not abuse its discretion in excusing the two prospective jurors for cause. Both expressed views that would prevent or substantially impair them from fulfilling their duties as jurors. State v. Tyler, (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, 586. Accordingly, we overrule Proposition of Law No.8.
65
State v. Dennis, 683 N.E.2d at 1103.
66
The district court held that the Ohio Supreme Court reasonably applied clearly established federal law. Dennis v. Mitchell, 68 F.Supp.2d at 889. The district court noted that the Ohio Supreme Court followed the correct controlling United States Supreme Court precedent of Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, which sets the standard for excusing jurors for cause. Witt held that "the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, 469 U.S. at 424, 105 S.Ct. 844.
67
Based on this standard, the district court concluded that:
68
Here, both Spencer and Williams stated that they could not follow the law and recommend the death penalty. Before trial, the prosecutor, using the Wainwright language, asked juror Spencer if her "moral belief against the death penalty would substantially impair your ability to do that, to follow the law." Spencer then replied "Yes," indicating that her beliefs prohibited her from following the law. (Trial Tr. at 351.)
69
Similarly, the trial judge asked juror Williams if she could follow the law:
70
"Our question to you is simply do you feel that you can go through that analysis, follow the law and make that recommendation if the circumstances of this case warrant it?" Williams simply replied "No." (Id. at 368, 652 N.E.2d 1000.)
71
Dennis v. Mitchell, 68 F.Supp.2d at 889. The district court concluded that, based on these two exchanges, the trial court acted properly in excluding these jurors.
72
The Ohio Supreme Court's decision is not an unreasonable application of Witt. In Witt, the Supreme Court upheld that trial court's excusal for cause of a juror after she stated that her personal beliefs against the death penalty would interfere with judging the defendant's guilt or innocence. See Witt, 469 U.S. at 416, 105 S.Ct. 844. Similarly, in this case, the record reflects that both witnesses stated that they would be unable to sign a death verdict, regardless of the verdict. The district court's independent review of the state court record confirms the state courts' assessment that the jurors' views on the death penalty would substantially impair their performance. For these reasons, the Ohio Supreme Court's ruling is not contrary to Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) (holding that certain veniremen had been improperly excluded because they acknowledged that their views of the death penalty might "affect" their deliberations, but only to the extent that they would view their task with greater gravity), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (finding it improper to exclude veniremen simply because they voiced general objections to the death penalty or expressed conscientious or religious objections to its imposition), because the record reflects that the jurors had more than mere qualms or moral objection to the death penalty, but an inability or unwillingness to follow the law or obey their oaths. The district court properly rejected this claim.
73
C. Questioning on Specific Mitigating Factors
74
Dennis contends that his rights to a fair trial and fair sentencing under the Eighth and Fourteenth Amendments were violated by the trial court's refusal to permit him to ask questions about specific mitigating factors during voir dire. Specifically, Dennis claims that he was foreclosed from asking prospective jurors questions regarding Dennis's age, lack of prior criminal history, environment, and other mitigating factors. The trial judge ruled that specific mitigating factors shouldn't be delved into, stating that "[t]he significant part is will they [the jurors] listen to what the mitigating factors are and will they consider them. I think that is the bottom line."
75
The Ohio Supreme Court found no error.
76
In Proposition of Law No. 6, Dennis complains that he was denied due process when the trial court precluded defense counsel from questioning prospective jurors about specific mitigating factors. However, as Dennis concedes, we rejected this same argument in State v. Wilson (1996), 74 Ohio St.3d 381, 385-387, 659 N.E.2d 292, 300-301. Similar to Wilson, the trial court here allowed adequate, detailed questioning of prospective jurors to expose faults that would render a juror ineligible. No abuse of discretion is apparent, and, therefore, this proposition of law is overruled.
77
State v. Dennis, 683 N.E.2d at 1105.
78
The district court held that the Ohio Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established United States Supreme Court case law. Dennis v. Mitchell, 68 F.Supp.2d at 890.
79
As the Supreme Court observed in Morgan, "[t]he Constitution ... does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury." Morgan, 504 U.S. at 729, 112 S.Ct. 2222. At the same time, integral to the Sixth Amendment right to an impartial jury "is an adequate voir dire to identify unqualified jurors." Id. (citations omitted). Thus, the trial judge's discretion to restrict questioning is nonetheless "`subject to the essential demands of fairness.'" Id. (quoting Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)). See also Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (stating that "[t]o be constitutionally compelled ... it is not enough that such questions be helpful. Rather the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair").
80
For example, the Supreme Court has required voir dire on the issue of racial prejudice in situations of extreme racial tension, see Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) (holding that voir dire on race was constitutionally required where defendant, a civil rights activist, claimed that he had been framed because of his race); and interracial violence, see Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (holding that voir dire regarding racial bias was constitutionally required in case involving interracial violence). By contrast, the Supreme Court has ruled that the mere fact that the defendant was black and the victim white was an insufficient basis, standing alone, to constitutionally require voir dire on racial bias. Ristaino v. Ross, 424 U.S. 589, 598, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). In Mu'Min, the Supreme Court held that the defendant's Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to due process were not violated by the trial judge's refusal to question prospective jurors about specific contents of news reports to which they had been exposed. The Court held sufficient the trial judge's question of whether any information would affect the juror's impartiality. Mu'Min, 500 U.S. at 431-32, 111 S.Ct. 1899.
81
In other words, the Constitution requires only that voir dire be conducted in a manner which ensures fundamental fairness. Dennis has not made this showing. The record reflects that, even though defense counsel were eventually limited in asking particularized questions, the trial court permitted considerable latitude in the questioning of jurors during voir dire. Dennis's counsel was permitted to ask a number of veniremen questions regarding mitigating factors without interference from the trial judge. The following colloquy with Juror Wiggins exemplifies counsel's inquiry:
82
MR. WHITNEY: Our legislature has told us — as the Judge told you, Mr. Carroll told you, basically, that we have a two-part trial here. The first part has to do with guilt and innocence. The second part has to do with penalty.
83
Our legislature has told us that there are certain circumstances under which, even if a person is found guilty of a capital offense, that a jury can render a verdict for a life sentence.
84
Are you going to be able to accept what the Judge tells you regarding what we call mitigating factors, things like age and things like mental defects, if there is any, things like the upbringing of a person, those things? Can you take those things into consideration?
85
JUROR WIGGINS: Yes.
86
MR. WHITNEY: Do you think they are important in determining penalties?
87
JUROR WIGGINS: Yes.
88
MR. WHITNEY: What has been going on in this man's life before and how old he is and what kind of environment he came from.
89
Are those things going to be important to you in passing on a verdict of death or life, if the Judge tells you they are important?
90
JUROR WIGGINS: Yes, I think so.
91
MR. WHITNEY: If the Judge says they are factors that you can consider, then you would consider them?
92
JUROR WIGGINS: Yes.
93
Defense counsel followed this pattern of questioning for a number of witnesses Later, defense counsel asked the panel as a whole if any one had "any strong feelings about" evidence "of a psychological nature, evidence of behavior, social kind of evidence, psychological kind of evidence, upbringing, discipline, lack of discipline."
94
The trial court did not interfere with the questioning until defense counsel's colloquy with Juror Martin became more particularized. At that point the trial court cautioned simply that "[o]nce again, without interrupting, the questions are tough. But one of the things that has to be understood here is that the Court will instruct you on what mitigating factors you may consider." The trial judge instructed counsel to keep questioning as general as possible.
95
In short, the record reflects that Dennis's counsel was able to question the jurors regarding their ability and willingness to follow the law in the penalty phase. The Ohio Supreme Court's conclusion that the trial court "allowed adequate, detailed questioning of prospective jurors" is not an unreasonable determination of the facts in light of the record. Finally, Dennis failed to establish that the Ohio Supreme Court's ruling is contrary to United States Supreme Court precedent. The district court did not err in rejecting this claim.
D. Peremptory Challenges
96
Dennis argues that the prosecutor's use of peremptory challenges to exclude prospective jurors Dortch and McGinnis based on their views of the death penalty violated his Sixth Amendment right to an impartial jury. Both Dortch and McGinnis indicated that they would be able to recommend the death penalty if the law required it, but they also stated that they maintained religious beliefs against the death penalty.
97
The Ohio Supreme Court overruled this claim, holding that "apart from excluding prospective jurors based on gender or race, ... prosecutors can exercise a peremptory challenge for any reason, without inquiry, and without a court's control." State v. Dennis, 683 N.E.2d at 1104 (citing state law). The district court agreed. Dennis v. Mitchell, 68 F.Supp.2d at 890-91.
98
As the district court observed, the United States Supreme Court has held that peremptory challenges may be used for any reason so long as they are not based on immutable characteristics like race and sex. Id. at 891 (citing Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990)). Indeed, in Holland, the Supreme Court expressly rejected the petitioner's thesis that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community deprives a defendant of a Sixth Amendment right to the "fair possibility" of a representative jury. Holland, 493 U.S. at 478, 110 S.Ct. 803. The Court stated that "[a] prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury." Id. Furthermore, the Holland Court stated that peremptory challenges "best further[] the Amendment's central purpose" of jury impartiality, "by enabling each side to exclude those jurors it believes will be most partial toward the other side, ... thereby `assuring the selection of a qualified and unbiased jury.'" Id. at 483-84, 110 S.Ct. 803 (quoting Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). Dennis's reliance on Witherspoon is misplaced because Witherspoon dealt with the practice of excluding for cause jurors who expressed conscientious or religious scruples against capital punishment.
99
In short, the Ohio Supreme Court's opinion was not contrary to, nor an unreasonable application of, clearly established Untied States Supreme Court precedent.
E. Batson Claim
100
Dennis also complains that the exclusion of Dortch and McGinnis, both African-Americans, violated Batson, supra. The Ohio Supreme Court concluded that Dennis failed to prove a violation of Batson.
101
The trial court held that "with Batson in mind," the state's peremptory challenges of prospective jurors McGinnis and Dortch were proper. Moreover, the court's ruling was not "clearly erroneous" under Hernandez. The facts and circumstances underlying the prosecutor's exercise of peremptories on the two prospective jurors in issue do not appear to be racially motivated. Both prospective jurors expressed opposition to the death penalty on religious grounds. While, after defense questioning, both prospective jurors eventually opined that they thought they could impose a death sentence, the fact remains that both were still opposed to a death sentence, the fact remains that both were still opposed to capital punishment on religious grounds.
102
The prosecutor explained that he exercised peremptory challenges on McGinnis and Dortch based on their views of the death penalty. In addition, the prosecutor cited the fact that Dortch stated she had a cousin who had been murdered. Thus, the prosecutor gave a race-neutral explanation for the peremptory challenges. Hill; Hernandez. Accordingly, Proposition of Law No. 7 is without merit.
103
State v. Dennis, 683 N.E.2d at 1104.
104
The district court held that the court properly applied Batson.
105
In this case, the prosecution offered several neutral explanations for the exclusion of McGinnis and Dortch. First, the prosecutor explained that he used peremptory challenges on McGinnis and Dortch based, at least in part, on their views of the death penalty. Both prospective jurors expressed opposition to the death penalty on religious grounds. Though both prospective jurors eventually said they could impose a death sentence, both were nevertheless opposed to capital punishment.
106
Moreover, the prosecutor noted that prospective juror Dortch had a cousin that had been murdered and a son that had been convicted of a serious crime. Also, the prosecutor explained that a prospective juror McGinnis was consistently late and the only one confused about the jury procedures.
107
After directly observing the voir dire questioning, the trial judge found the use of peremptory challenges was not motivated by impermissible considerations. The trial judge stated that when Dortch and McGinnis were excused: "I consciously reviewed the circumstances relative to each of these two ladies and having no specific request at that time to place it on the record, it was the Court's determination that with Batson in mind, that at least in this Court's opinion that these were acceptable challenges on behalf of the state."
108
Dennis v. Mitchell, 68 F.Supp.2d at 891.
109
Batson requires the defendant to show that the prosecutor exercised a peremptory challenge on the basis of race. If that showing is made, then the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (summarizing three step analysis for a Batson claim).
110
The Ohio Supreme Court's decision was not an unreasonable application of Batson. The Ohio Supreme Court concluded that the trial court's ruling was not "clearly erroneous." The main reason the prosecutor struck the two jurors was their stated position on the death penalty. The trial court concluded that this explanation was credible. This finding is not clearly erroneous. See Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (stating that, in habeas corpus proceedings, a state court decision about prosecutor's intent is a factual decision); see also 2254(e).
111
This claim is without merit.
F. Ineffective Assistance of Counsel
112
Dennis argues that his counsel were ineffective for failing to issue timely objections to the removal for cause of jurors Spencer and Williams and the use of peremptory challenges to remove jurors McGinnis and Dortch.
113
After reciting the Strickland test [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the Ohio Supreme Court concluded that Dennis had not shown prejudice. State v. Dennis, 683 N.E.2d at 1108-09. The district court held that "Dennis was not deprived of any substantive or procedural right to which the law entitles him." Dennis v. Mitchell, 68 F.Supp.2d at 899.
114
The Ohio Supreme Court's holding was not an unreasonable application of Strickland. Because the Ohio Supreme Court concluded that none of the underlying challenges had merit, there is no cause and therefore no prejudice. The district court did not err in rejecting this claim.
V. Conclusion
115
For all of the foregoing reasons, we AFFIRM the judgment of the district court denying Dennis's petition for writ of habeas corpus.
Notes:
1
The district court issued its opinion on September 30, 1999, prior to the Supreme Court's decision inWilliams v. Taylor, supra, and did not have the benefit of that decision in resolving this case.
2
Dennis contends that the AEDPA does not apply to several issues in this case because the state court did not cite to any United Supreme Court precedent. This argument is without merit in light ofEarly, supra.
3
The question posed was: "Violent crime; any experience whatsoever?" Juror Harris responded: "No."
4
As we recently noted in an unpublished habeas decision, theMcDonough test is not the exclusive test for determining whether a new trial is warranted on the basis of juror bias. See Baker v. Craven, 82 Fed.Appx 423, 424 n. 1 (6th Cir.2003) (and cases cited therein). | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1589608/ | 972 So.2d 192 (2008)
M.R.
v.
DEPARTMENT OF CHILDREN AND FAMILY
No. 3D07-2072.
District Court of Appeal of Florida, Third District.
December 17, 2007.
Decision without published opinion. App. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1019840/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM FRANKLIN SEHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(CR-02-128)
Submitted: June 9, 2006 Decided: July 6, 2006
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roland M. L. Santos, Harrisonburg, Virginia, for Appellant. John
L. Brownlee, United States Attorney, Anthony P. Giorno, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Franklin Sehen was sentenced to 121 months’
imprisonment for possession of five grams or more of
methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841 (2000). We affirmed the conviction, vacated the
sentence, and remanded for further proceedings consistent with
United States v. Booker, 543 U.S. 220 (2005). See United States v.
Sehen, No. 03-4487 (4th Cir. July 14, 2005) (unpublished).
On remand, the district court resentenced Sehen to an
identical term of 121 months’ imprisonment. Sehen again appeals,
contending the district court’s application of a sentencing
enhancement for possession of a dangerous weapon in connection with
a drug offense, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(b)(1) (2002), was clearly erroneous. Furthermore,
Sehen contends the district court did not sufficiently articulate
its consideration of the sentencing factors listed in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005).
The district court’s enhancement of Sehen’s sentence
under § 2D1.1(b)(1) is reviewed for clear error. United States v.
McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Under the
sentencing guidelines, a defendant receives a two-level increase to
his base offense level under USSG § 2D1.1(b)(1) if a dangerous
weapon was possessed during the offense. This “adjustment should
be applied if the weapon was present, unless it is clearly
- 2 -
improbable that the weapon was connected with the offense.” USSG
§ 2D1.1(b)(1) comment. (n.3). The Government need not establish a
perfect connection between the possession of the firearm and the
commission of the drug offense before the enhancement may be made.
See McAllister, 272 F.3d at 234. Evidence of firearms in proximity
to illegal drugs can support a conclusion that the firearms were
possessed during the commission of the drug offense. See United
States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). Moreover, the
enhancement does not “require[] proof of precisely concurrent acts,
for example, gun in hand while in the act of storing drugs, drugs
in hand while in the act of retrieving a gun.” Id. (internal
quotation marks omitted).
After carefully reviewing the evidence, we find Sehen has
failed to show that it is “clearly improbable that the weapons were
connected with” his drug offense. See USSG § 2D1.1, comment.
(n.7). Therefore, we conclude the district court’s application of
the sentencing enhancement was not clearly erroneous.
Additionally, we find no merit to Sehen’s contention
concerning the § 3553(a) factors. A “district court need not
explicitly discuss every § 3553(a) factor on the record.” United
States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (citation
omitted); see United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006), petition for cert. filed, Apr. 17, 2006 (No. 05-10474)).
“[A] sentence imposed within the properly calculated Guidelines
- 3 -
range . . . is presumptively reasonable.” United States v. Green,
436 F.3d 449, 457 (4th Cir. 2006) (internal quotation marks and
citation omitted); see Johnson, 445 F.3d at 342-44. Based on these
principles, we find the district court adequately considered the
§ 3553(a) factors, and Sehen fails to rebut the presumption that
his sentence, which was imposed at the top of the properly
calculated sentencing guidelines range, was reasonable.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 4 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919217/ | 912 So.2d 646 (2005)
PROGRESSIVE PLUMBING, INC., Appellant,
v.
DIXIE CONSTRUCTION PRODUCTS, Appellee.
No. 5D04-1633.
District Court of Appeal of Florida, Fifth District.
September 16, 2005.
Rehearing Denied October 19, 2005.
Brian D. Solomon, and Michael C. Sasso of Michael C. Sasso, P.A., Winter Park, for Appellant.
Richard D. Sierra, of Kosto & Rotella, P.A., Orlando, for Appellee.
*647 THOMPSON, J.
Progressive Plumbing, Inc. ("Progressive") appeals a nonfinal order granting the motion filed by the appellee, Dixie Construction Products ("Dixie"), to amend a partial summary judgment and to vacate a satisfaction of judgment entered pursuant to Florida Rule of Civil Procedure 1.540. Because the order on appeal became final before the trial court attempted to vacate it, we must reverse.
Dixie alleged in a one-count complaint that Progressive breached an oral agreement and sought $30,281.25 for work performed. Progressive answered in interrogatories that, according to its customary pricing, it owed Dixie $6612. Dixie moved for partial summary judgment for that amount. Following a hearing, the court entered partial summary judgment for $4963.74 for which the court let execution issue.
Progressive's counsel mailed Dixie a check for the amount of the judgment, and Dixie's counsel executed a satisfaction of the partial summary judgment. The day before executing the satisfaction, Dixie moved for attorney's fees and to amend the complaint to bring a claim for account stated. Progressive promptly moved to dismiss the complaint with prejudice on the ground that the "execution" language of the partial summary judgment and its grant of ultimate relief rendered it a final order.
At hearing the court orally ruled that the partial summary judgment was indeed a final order that divested it of jurisdiction. Both sides presented the court with forms of order, neither of which the court entered. Shortly thereafter, Dixie filed a motion for relief from partial summary judgment pursuant to rule 1.540(b), asking that the court vacate the partial summary judgment because it had not reached the decision in the intentional or purposeful exercise of its judicial function.
The court denied relief from the partial summary judgment and acknowledged that it had mistakenly failed to retain jurisdiction to resolve the remaining issues in the case. Its order was without prejudice to the plaintiff to move to vacate the satisfaction of judgment.
Dixie promptly filed a motion for order vacating satisfaction of judgment and partial summary judgment and for rehearing. At the hearing Dixie asked the court to vacate the satisfaction of judgment due to mistake pursuant to rule 1.540, Holm v. Sharp, 715 So.2d 1159 (Fla. 5th DCA 1998), and Morris North American, Inc. v. King, 430 So.2d 592 (Fla. 4th DCA 1983). Progressive argued that the order was final because the executed satisfaction rendered the judgment final and the court, having failed to reserve jurisdiction, lacked authority to enter further orders. The judge viewed the original judgment as partial, and, to correct the acknowledged failure to retain jurisdiction, vacated the satisfaction and set aside the partial summary judgment to allow litigation of the full debt.
The general rule is that courts of general jurisdiction have absolute authority over their own orders, decrees, and judgments, and can correct or vacate them at any time before they become final. Danner v. Danner, 206 So.2d 650, 654 (Fla. 2d DCA 1968). The type of mistake envisioned by rule 1.540(b) "is the type of honest and inadvertent mistake made in the ordinary course of litigation, usually by the Court itself, and is generally for the purpose of `setting the record straight.'" Id. A satisfaction of judgment is a complete bar to any effort to alter or amend the final judgment, but, if shown to be invalid, a satisfaction may be set aside. Morris N. Am., 430 So.2d at 592. Every *648 court of law possesses inherent equitable power sufficient to control its own judgments, and this includes power to set aside a satisfaction of one of its own judgments. Ford Motor Credit Co. v. Simmons, 421 So.2d 698, 700 (Fla. 2d DCA 1982).
A partial summary judgment containing final language of a one-count complaint is deemed a final judgment. McGurn v. Scott, 596 So.2d 1042, 1045 (Fla.1992); Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315, 318-19 (Fla. 3d DCA 1987); Pointer Oil Co. v. Butler Aviation of Miami, Inc., 293 So.2d 389, 390-91 (Fla. 3d DCA 1974). The time allowed for correcting the judgment in this case had long since passed. Rule 1.540(b) operates to allow a party relief from a judgment upon certain grounds. However, mistakes of law, as distinct from mistakes of fact, do not afford a basis for relief under this rule. Kuykendall v. Kuykendall, 301 So.2d 466, 467 (Fla. 1st DCA 1974).
We therefore reverse the order granting motion to amend partial summary judgment and vacate satisfaction of judgment.
REVERSED.
GRIFFIN and PALMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/785344/ | 360 F.3d 644
Neil GAIMAN and Marvels and Miracles, LLC, Plaintiffs-Appellees/Cross-Appellants,v.Todd McFARLANE, et al., Defendants-Appellants/Cross-Appellees.
No. 03-1331.
No. 03-1461.
United States Court of Appeals, Seventh Circuit.
Argued January 5, 2004.
Decided February 24, 2004.
Rehearing and Rehearing En Banc Denied March 31, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Kenneth F. Levin (Argued), Levin & Associates, Chicago, IL, Allen A. Arntsen, Foley & Lardner, Madison, WI, for Plaintiffs-Appellees in 03-1331, 03-1461.
Michael A. Kahn (Argued), Blackwell, Sanders, Peper, Martin, St. Louis, MO, R. Scott Feldmann, Crowell & Morning, Irvine, CA, for Defendants-Appellants in 03-1331.
Todd G. Smith, Lafollette, Godfrey & Kahn, Madison, WI, Michael A. Kahn (Argued), Blackwell, Sanders, Peper, Martin, St. Louis, MO, R. Scott Feldmann, Crowell & Morning, Irvine, CA, for Defendants-Appellees in 03-1461.
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge.
1
Neil Gaiman brought suit under the Copyright Act against Todd McFarlane and corporations controlled by him that we can ignore, seeking a declaration that he (Gaiman) owns copyrights jointly with McFarlane in certain comic-book characters. Merchant v. Levy, 92 F.3d 51 (2d Cir.1996); Zuill v. Shanahan, 80 F.3d 1366 (9th Cir.1996); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406 (2d Cir.1946). He sought additional relief under the Act, other provisions of federal law, and state law, as well. The case was tried to a jury, which brought in a verdict for Gaiman. The judge entered a judgment that declared Gaiman to be the co-owner of the characters in question, ordered McFarlane to so designate Gaiman on undistributed copies in which these characters appear, provided modest monetary relief in respect of Gaiman's supplemental claim for damages for breach of his right of publicity, and ordered an accounting of the profits that McFarlane has obtained that are rightfully Gaiman's. The accounting is not yet complete, and so the judgment is not final; McFarlane's appeal is therefore limited to the injunction requiring him to acknowledge Gaiman's co-ownership.
2
McFarlane contends that a reasonable jury would not have rejected his statute of limitations defense and that in any event two of the comic-book characters at issue are not copyrightable. The parties agree that the alternative defense, the defense of uncopyrightability, is strictly an issue for the court. We have found only a handful of appellate cases addressing the issue, and they are split. Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674, 681 (2d Cir.1998), and North Coast Industries v. Jason Maxwell, Inc., 972 F.2d 1031, 1035 (9th Cir.1992), hold that copyrightability is a mixed question of law and fact, at least when it depends (as it usually does) on originality, and that it is therefore an issue for the jury or other factfinder. But Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n. 5 (1st Cir. 2001), and our own Publications Int'l, Ltd. v. Meredith Corp., 88 F.3d 473, 478 (7th Cir.1996), along with a number of district court cases, e.g., Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd., 243 F. Supp. 2d 444, 451-52 (M.D.N.C.2003); Newton v. Diamond, 204 F. Supp. 2d 1244, 1253 (C.D.Cal.2002), hold that copyrightability is always an issue of law. Whether a particular work is copyrightable is fact-specific, which argues against treating the question as one of law, but tugging the other way is the concern that property rights not be placed at the mercy of a jury. A nice issue, but this is not an apt occasion on which to reexamine our resolution of it in Publications Int'l.
3
Gaiman's cross-appeal, in which he is joined by a company controlled by him, is from the dismissal of his auxiliary claim for breach of contract. The cross-appeal is contingent on our reversing the copyright judgment, since Gaiman seeks no additional relief on his contract claim; it's just a backstop to his copyright claim.
4
We need to do some stage setting. Gaiman and McFarlane are both celebrated figures in the world of comic books, but they play different though overlapping roles. Gaiman just writes scripts; McFarlane writes scripts too, but he also illustrates and publishes the comic books. In 1992, shortly after forming his own publishing house, McFarlane began publishing a series of comic books entitled Spawn, which at first he wrote and illustrated himself. "Spawn," more precisely "Hellspawn," are officers in an army of the damned commanded by a devil named Malebolgia, who hopes one day to launch his army against Heaven. The leading character in the series is a man named Al Simmons, who is dead but has returned to the world of the living as a Hellspawn.
5
Al's story is an affecting one. Born in a quiet neighborhood outside of Pittsburgh, he was recruited by the CIA and eventually became a member of an elite military unit that guards the President. He saved the President from an assassin's bullet and was rewarded with a promotion to lieutenant colonel. He was placed under the command of Jason Wynn, who became his mentor and inducted him into the sinister inner recesses of the intelligence community. When Al began to question Wynn's motives, Wynn sent two agents, significantly named Chapel and Priest, to kill Al with laser weapons, and they did, burning him beyond recognition. Al was buried with great fanfare in Arlington National Cemetery.
6
Now Al had always had an Achilles' heel, namely that he loved his wife beyond bearing and so, dying, he vowed that he would do anything to see her again. Malebolgia took him at his word ("would do anything") and returned Al to Earth. But a deal with the devil is always a Faustian pact. Al discovered that he was now one of Malebolgia's handpicked Hellspawn and had been remade (a full makeover, as we'll see) and infused with Hell-born energy.
7
Returned to Earth in his new persona, Al discovers that his wife has remarried his best friend, who was able to give her the child he never could. He absorbs the blow but thirsts for revenge against Jason Wynn. He bides his time, living with homeless people and pondering the unhappy fact that once he exhausts his Hell-born energy he will be returned to Malebolgia's domain and become a slave in an army of the damned with no hope of redemption. He must try somehow to break his pact with the devil.
8
The early issues in the series were criticized for bad writing, so McFarlane decided to invite four top writers each to write the script for one issue of Spawn. One of those invited was Gaiman. He accepted the invitation and wrote the script for Spawn issue No. 9. Their contract, made in 1992, was oral. There was no mention of copyright, nor, for that matter, of how Gaiman would be compensated for his work, beyond McFarlane's assuring Gaiman that he would treat him "better than the big guys" did. The reference was to the two leading comic book publishers, Marvel Comics (not to be confused with Gaiman's company, Marvels and Miracles) and DC Comics, for which Gaiman and other writers write on a "work made for hire" basis. 17 U.S.C. § 101. This means that the publishers own the copyrights on their work. § 201(b).
9
It might seem that when McFarlane told Gaiman that he would treat Gaiman "better than the big guys" did, he just meant he'd compensate him more generously for work made for hire. But McFarlane rightly does not argue this. Gaiman's work for him was not work made for hire. It was neither (1) work created by an employee within the scope of his employment nor (2) "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." 17 U.S.C. § 101. There was no written agreement between Gaiman and McFarlane, and Gaiman was not an employee of McFarlane.
10
Now it is true that a commissioned work not falling under (2) may be deemed a work for hire under (1) if, for example, the commissioning party pays the author a monthly stipend, pays health and other fringe benefits during the time the author works on the project, and exercises overall though not necessarily daily supervision. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750-52, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989); Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., 119 F.3d 55, 59-60 (1st Cir.1997). The work for hire concept isn't limited to formal employment because a functionally identical relationship can be created by skillful drafting of contracts that purport to treat the (de facto) employee as an independent contractor. The work for hire provision is not unique in sensibly forgoing a definition of "employee" or "employment" and by doing so empowering the courts to define these terms from case to case on a practical rather than formal basis, using the principles of agency law to prevent evasion of the statutory purpose. E.g., Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003); EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 704-07 (7th Cir. 2002). But there is nothing to suggest that Gaiman ever became a de facto employee of McFarlane. And while Gaiman could have assigned to McFarlane his copyright in any work he did under the oral contract, copyright assignments must be in writing, 17 U.S.C. § 204(a); Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir.1992), and there was no written assignment.
11
In his script for Spawn No. 9, Gaiman introduced three new characters — Medieval Spawn (as he was later called by McFarlane — Gaiman had not named it and in the issue he is just referred to as a Spawn, with no further identifier), Angela (no last name), and Count Nicholas Cogliostro. Gaiman described, named, and wrote the dialogue for them, but McFarlane drew them. Gaiman contends that he and McFarlane are joint owners of the copyrights on the three characters by reason of their respective contributions to joint (indivisible) work. 17 U.S.C. § 101; Seshadri v. Kasraian, 130 F.3d 798, 803-04 (7th Cir.1997); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1067-72 (7th Cir.1994); Thomson v. Larson, 147 F.3d 195, 199-205 (2d Cir.1998). McFarlane concedes Gaiman's joint ownership of Angela, but not of the other two; we postpone our consideration of the issue until we have disposed of the statute of limitations defense, to which we now turn. Evaluation of the defense requires us to consider a chain of events running from 1992 — when the contract was made and Spawn No. 9, which states on its inside cover that it is copyrighted by McFarlane (actually by one of his companies, but that is immaterial), was published — to 1999.
12
Spawn No. 9 was a huge success, selling more than a million copies. McFarlane paid Gaiman $100,000 for his work on it. Gaiman testified that this was about what he would have expected to receive from DC Comics had he written the script of Spawn No. 9 for that company as a work made for hire.
13
Because Angela was a big hit with Spawn's readers, McFarlane asked Gaiman to do a "mini-series" of three issues starring her, which he did. He also wrote several pages for Spawn No. 26 to form a bridge to the Angela series; because Angela hadn't appeared in Spawn Nos. 10 through 25, Gaiman was concerned that readers would not realize that Angela was an offshoot of Spawn. McFarlane paid Gaiman $3,300 for his contribution to Spawn No. 26 and more than $30,000 (the exact amount is not in the record) for the Angela series. Only one of these four issues (the second Angela) contains a copyright notice; the notice is similar to the one in Spawn No. 9.
14
The Angela series was first published in 1994. The following year, having created a toy company to manufacture statuettes ("action figures") of Spawn characters, one a statuette of Medieval Spawn, McFarlane mailed Gaiman a check for $20,000 designated as royalties, presumably on sales of the statuette, though the record is unclear.
15
McFarlane subsequently licensed the publication of paperback books that reprinted the comic books to which Gaiman had contributed. The books carry a copyright notice similar to the one in Spawn No. 9 and Angela No. 2 except that it adds that "all related characters" are also copyrighted by McFarlane. Besides inserting the copyright notices that we've mentioned, McFarlane applied to the Register of Copyrights for, and received, copyright registrations on these issues and books.
16
In 1996, learning that McFarlane might sell his enterprise, Gaiman decided that he needed the protection of a written contract and he asked McFarlane for one. McFarlane agreed to give him a written contract and also to pay him royalties for a statuette of Angela that McFarlane's toy company had manufactured and sold.
17
After desultory negotiations, Gaiman's lawyer wrote a letter to McFarlane's negotiator stating that Gaiman had created the characters of Medieval Spawn, Angela, and Cogliostro not as work for hire but "pursuant to the terms of an oral agreement under which Mr. McFarlane agreed that Mr. Gaiman would be compensated on the same terms as set forth in Mr. Gaiman's DC Comics Agreements dated August 1, 1993." This was a surprising interpretation of the oral agreement, since in it McFarlane had promised to treat Gaiman better than DC Comics treated him; but as nothing turns on this interpretation we'll ignore it. The letter goes on to "demand" that McFarlane "immediately forward all monies which are currently owed to Mr. Gaiman in accordance with the terms of the DC Agreement." We'll call this the demand letter.
18
Direct negotiations between Gaiman and McFarlane ensued. A tentative agreement was reached that McFarlane would pay royalties on the statuettes on the same terms as Gaiman would have gotten from DC Comics but that Gaiman would exchange his rights in Medieval Spawn and Cogliostro for McFarlane's rights in another comic book character, Miracleman. Once the exchange was made, Gaiman would no longer receive royalties on Medieval Spawn and Cogliostro.
19
For the rest of 1997 and 1998, McFarlane sent Gaiman royalty checks totaling about $16,000, presumably on account of the statuettes and the paperback books, together with royalty reports that referred to Gaiman as a "co-creator" of Medieval Spawn, Angela, and Cogliostro. On February 14, 1999, however, Gaiman received a letter from McFarlane announcing that McFarlane was "officially rescind[ing] any previous offers I have placed on the table." The letter offered Gaiman the following deal on a take-it-or-leave-it basis: Gaiman would relinquish "all rights to Angela" in exchange for "all rights to Miracle Man," and "all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions."
20
The statement "all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions" was an unambiguous denial of Gaiman's copyright interest and therefore is the last date on which his claim could have accrued and the three-year copyright statute of limitations, 17 U.S.C. § 507(b), thus have begun to run. This suit was brought in January of 2002 — a month short of three years after Gaiman's receipt of McFarlane's letter. By the time of trial, Spawn was up to issue No. 120 and had spawned a large number of derivative works, including posters, trading cards, clothing, the statuettes, an animated series on HBO, video games, and a motion picture. Many of these derivative works include all three characters to which Gaiman contributed, so that the financial stakes in the case are considerable.
21
A minor wrinkle concerning the statute of limitations defense is that Gaiman's suit is not a suit for infringement. Gaiman concedes that McFarlane also owns copyright in the comic-book characters in issue. The claim rejected by McFarlane is that Gaiman is a co-owner, along with McFarlane. 17 U.S.C. § 201(a). As a co-owner, McFarlane was not violating the Copyright Act by unilaterally publishing the jointly owned work, but, as in any other case of conversion or misappropriation, he would have to account to the other joint owner for the latter's share of the profits. Zuill v. Shanahan, supra, 80 F.3d at 1369. When co-ownership is conceded and the only issue therefore is the contractual, or in the absence of contract the equitable, division of the profits from the copyrighted work, there is no issue of copyright law and the suit for an accounting of profits therefore arises under state rather than federal law. Goodman v. Lee, 78 F.3d 1007, 1013 (5th Cir.1996); Oddo v. Ries, 743 F.2d 630, 633 and n. 2 (9th Cir.1984); Mountain States Properties, Inc. v. Robinson, 771 P.2d 5, 6-7 (Colo.App.1988). It is just like a suit to enforce a copyright license, which arises under state law rather than under the Copyright Act. Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1194-95 (7th Cir.1987); T.B. Harms Co. v. Eliscu, 339 F.2d 823, 824, 828 (2d Cir.1964) (Friendly, J.); cf. International Armor & Limousine Co. v. Moloney Coachbuilders, Inc., 272 F.3d 912, 915-16 (7th Cir.2001). And in that event the applicable statute of limitations would be state rather than federal.
22
But more is involved in this case. As in Zuill v. Shanahan, supra, 80 F.3d at 1371, and also Merchant v. Levy, supra, 92 F.3d at 56, and Goodman v. Lee, 815 F.2d 1030, 1031-32 (5th Cir.1987), Gaiman seeks a declaration that he is a co-owner, which depends on whether his contribution to the comic-book characters in question gave him a copyright interest. That question, on the answer to which his entitlement to an accounting and other relief depends, cannot be answered without reference to the Copyright Act, and it therefore arises under the Act. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199-202, 41 S. Ct. 243, 65 L. Ed. 577 (1921). As we said in Saturday Evening Post Co. v. Rumbleseat Press, Inc., supra, 816 F.2d at 1194, "the principle that disputes over the terms of copyright licenses do not arise under federal law has an exception for cases where establishing the plaintiff's right will require interpreting federal law." One can imagine, if barely, a case in which, though federal jurisdiction would lie because a copyright issue was unavoidable, the heart of the case lay elsewhere and a more suitable statute of limitations than the one in the Copyright Act could be found. But this is not such a case. The question whether Gaiman has a copyright is central, and the Act's three-year statute of limitations, which applies to any suit arising under the Act, and not just to a suit for infringement (for section 507(b) reads: "No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued"), is therefore, as the parties agree, clearly applicable to this case.
23
The parties also rightly agree that the copyright statute of limitations starts to run when the plaintiff learns, or should as a reasonable person have learned, that the defendant was violating his rights, Taylor v. Meirick, 712 F.2d 1112, 1117 (7th Cir.1983), in this case by repudiating Gaiman's ownership of copyright. Aalmuhammed v. Lee, 202 F.3d 1227, 1230-31 (9th Cir.2000); Merchant v. Levy, supra, 92 F.3d at 53, 56; Zuill v. Shanahan, supra, 80 F.3d at 1370-71. McFarlane claims that Gaiman knew, or certainly should have known, no later than 1997 when Gaiman's lawyer wrote the demand letter from which we quoted, that McFarlane was denying that Gaiman had any copyright interest in the three characters — that McFarlane had in effect appropriated Gaiman's copyright interest. Actually McFarlane thinks that Gaiman's copyright claim accrued a lot earlier — in 1993 when Spawn No. 9 was published with a copyright notice that did not mention Gaiman. It doesn't matter; if Gaiman's claim accrued before February 1999, the suit is untimely.
24
McFarlane's argument, however, reflects a misunderstanding of both the function of copyright notice and the nature of the copyright in a compilation. The function of copyright notice is to warn off copiers, 17 U.S.C. §§ 401(d), 405(b), 406(a); Fantastic Fakes, Inc. v. Pickwick International, Inc., 661 F.2d 479, 486-87 (5th Cir. 1981); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 73 F.2d 276, 277 (2d Cir. 1934), not to start the statute of limitations running. There may be situations in which the notice just happens to put a copyright owner on notice that someone is acting in derogation of his rights. Remember that a claim inconsistent with the copyright holder's interest sets the statute running, and in particular circumstances a notice indicating that the defendant was the sole copyright holder might amount to such a claim. Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., supra, 119 F.3d at 66. But not when the work is a compilation, as Spawn No. 9 plainly is. For it contains, besides Gaiman's contributions and goodness knows who else's, a letter-to-the-editors column containing a number of signed letters from fans plus art work contributed by fans. As McFarlane concedes, the copyrights on those letters and on the art work are owned by the fans and his copyrighting the issue is not a claim to own their copyrights.
25
The creator of a compilation is entitled to copyright it as long as it's a work "formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. § 101; see also § 103. The compiler's copyright entitles him to reprint the contents of the compilation in future editions of the compilation. 17 U.S.C. § 201(c); New York Times Co. v. Tasini, 533 U.S. 483, 493-97, 121 S. Ct. 2381, 150 L. Ed. 2d 500 (2001). But all the other rights of copyright remain in the authors of the contributions, provided the contributions satisfy the criteria of copy-rightability. Therefore the compiler's copyright notice is not adverse to the contributors' copyrights and so does not put them on notice that their rights are being challenged. On the contrary, "a single copyright notice applicable to the collective work as a whole serves to indicate protection for all the contributions in the collective work, except for advertisements, regardless of the ownership of copyright in the individual contributions and whether they have been published previously." United States Copyright Office, Circular No. 3: Copyright Notice 3 (2004); see Sanga Music, Inc. v. EMI Blackwood Music, Inc., 55 F.3d 756, 759-60 (2d Cir.1995); Abend v. MCA, Inc., 863 F.2d 1465, 1469 (9th Cir.1988), aff'd under the name Stewart v. Abend, 495 U.S. 207, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990).
26
There is a close analogy to the doctrine of adverse possession in the law of physical property. That doctrine extinguishes the paper title if the property is occupied under an adverse claim of right for the statutory period. If the claim is not adverse, as where a tenant occupies the owner's property — or, even more to the point, where a cotenant occupies property, because a joint copyright owner is a cotenant, e.g., Zuill v. Shanahan, supra, 80 F.3d at 1370; Childress v. Taylor, 945 F.2d 500, 505 (2d Cir.1991) — the statute of limitations does not begin to run. Howell v. Bradford, 570 So. 2d 643, 645 (Ala.1990) (per curiam); Fantasia v. Schmuck, 183 W.Va. 361, 395 S.E.2d 784, 786 (1990) (per curiam); Evans v. Covington, 795 S.W.2d 806, 808 (Tex.App.1990); Chicago, Peoria & St. Louis Ry. v. Tice, 232 Ill. 232, 83 N.E. 818, 819-20 (1908). No more does it begin to run when the claim to the copyright is a compiler's claim, because such a claim is not adverse to the contributor's copyright.
27
The copyright notices in the paperback books, however — notices that claim copyright for McFarlane in "all related characters" — might seem to be an example of our earlier point that there may be cases in which a copyright notice denies a contributor's copyright. But unless there is a duty of authors to read the copyright pages of works containing their copyrighted materials—and there is not — then since as we said the purpose of copyright notice is not to affect the time within which the victim of an infringement can sue (which is why there is no duty of authors to study copyright notices), the notice can affect the accrual of the cause of action only if the victim reads it. The jury was entitled to believe Gaiman's testimony that he had never seen the paperback books in which the suspicious notices appeared.
28
In addition to the copyright notices, McFarlane registered copyright on the issues and the books. But to suppose that by doing so he provided notice to Gaiman of his exclusive claim to the characters is again untenable. Authors don't consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane's registrations no more revealed an intent to claim copyright in Gaiman's contributions, as distinct from McFarlane's own contributions as compiler and illustrator, than the copyright notices did. The significance of registration is that it is a prerequisite to a suit to enforce a copyright. More precisely, an application to register must be filed, and either granted or refused, before suit can be brought. 17 U.S.C. § 411(a). There is an interesting question, left open in our recent decision in Chicago Bd. of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003), and unnecessary to decide in this case either, whether if registration is granted by mistake the registrant may nonetheless sue. All that is important in this case is that it is no more the purpose of registration to start statutes of limitations running than it is the purpose of the copyright notice itself to do so.
29
We are therefore led to question the suggestion in Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., supra, 119 F.3d at 66, that registration provides constructive notice of a claim of ownership. That would not, to repeat, matter in a case such as this in which the registered work is a compilation. But it probably wouldn't matter in any case. (We further note that there was actual as well as constructive notice in Saenger.) For one thing, the court was wrong to say that registration gives constructive notice. What the Act actually says is that recording a document in the Copyright Office gives constructive notice of the facts in the document if the document identifies a registered work. 17 U.S.C. § 205(c). The purpose is to establish priority in the event of disputes, in bankruptcy court or elsewhere, over creditors' rights. In re World Auxiliary Power Co., 303 F.3d 1120, 1125-27 (9th Cir.2002); Broadcast Music, Inc. v. Hirsch, 104 F.3d 1163, 1165-67 (9th Cir.1997); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.07 (2003). A creditor who wants to know whether he can seize a debtor's copyright consults the register; a co-author does not.
30
There is also nothing in the demand letter that Gaiman's lawyer wrote McFarlane to indicate that Gaiman believed McFarlane was denying Gaiman's joint ownership of the copyrights on the three characters. The issue of copyright ownership is distinct from that of the copyright owner's entitlement to royalties when, as in this case, he is not the publisher of the copyrighted work. The fact that the author owns the copyright doesn't determine how he and the publisher will divide the income from the sale of copies of the work. That is a matter of contract. Sometimes author and publisher disagree over the meaning of their contract (and it is the contract that will specify the division of income) or whether the publisher is adhering to the contract in good faith. Disagreement was especially likely here, where the parties' contract not only was oral but failed to specify the division of income beyond what could be inferred from McFarlane's promise to treat Gaiman better than "the big guys" (in particular, it seems, DC Comics) treated Gaiman.
31
The existence of a dispute over the terms of a publication contract does not alert the author to a challenge to his copyright. Quite the contrary, it presumes that he owns the copyright. If his work is in the public domain, the publisher could publish it without the author's permission, so would hardly be likely to have promised to pay him for the "right" to publish it — he would already have (along with the rest of the world) the right to publish it. Sending the kind of demand letter that Gaiman's lawyer sent no more suggests doubt about the legal basis for the demand than sending a collection letter, of which the demand letter was a variant, suggests doubt that the writer is entitled to the debt that he is seeking to collect.
32
There was other evidence that right up until McFarlane's 1999 letter, receipt of which clearly did start the statute of limitations running, he acknowledged or at least didn't deny Gaiman's ownership of copyrights in the three characters. There was the reference in the royalty reports to Gaiman's being the "co-creater" of the characters, the fact that McFarlane let pass without comment Gaiman's claim in the demand letter to have created the characters, and the payment to Gaiman of royalties on the statuettes, payment that would make most sense if they were derivative works of copyrighted characters — with Gaiman the (joint) owner of the copyrights. McFarlane argues that he could have given Gaiman these royalties pursuant to contract, and he points out that under Gaiman's work for hire agreement with DC Comics Gaiman received payments denominated as "royalties" even though he had no copyrights. But McFarlane also contends that DC Comics would not have paid Gaiman royalties on the statuettes, so what would have been Gaiman's entitlement to such royalties from him unless Gaiman had a copyright interest?
33
We have referred to statements and actions by McFarlane that seem positively to acknowledge Gaiman's copyrights, and these sort of "lulling" comments might seem to suggest an alternative basis for rejecting McFarlane's statute of limitations defense — the doctrine of equitable estoppel. Hentosh v. Herman M. Finch University of Health Sciences/The Chicago Medical School, 167 F.3d 1170, 1174 (7th Cir.1999); Singletary v. Continental Illinois National Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir.1993); Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995). But that is a tolling doctrine, not an accrual doctrine, and tolling doctrines do not automatically give a person the full statutory period for suit. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-53 (7th Cir.1990). Suppose the claim accrued in Year 1 and the statute of limitations is three years, but because of lulling comments by the violator the victim doesn't learn of his claim until Year 10. He cannot just sit on his haunches until Year 13, because his claim did not accrue in Year 10; he must sue as soon as it is feasible to do so.
34
Or so, at least, some cases hold. Shropshear v. Corporation Counsel, 275 F.3d 593, 597-99 (7th Cir.2001); Hi-Lite Products Co. v. American Home Products Corp., 11 F.3d 1402, 1406-07 (7th Cir.1993) (Illinois law); Butler v. Mayer, Brown & Platt, 301 Ill.App.3d 919, 235 Ill. Dec. 167, 704 N.E.2d 740, 745 (1998). Others, distinguishing equitable estoppel, where the defendant is responsible for the plaintiff's delay, from equitable tolling, where he is not, hold that in the former case though not the latter the plaintiff can subtract the entire period of the delay induced by the defendant, or in other words can extend the statutory period by the full amount of the delay. Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 876 (7th Cir.1997); Ott v. Midland-Ross Corp., 600 F.2d 24, 32-33 (6th Cir.1979). At least one case takes a middle position: the plaintiff is presumptively entitled to subtract the entire period. Buttry v. General Signal Corp., supra, 68 F.3d at 1494.
35
We needn't try to untangle this knot. For while Gaiman waited the full statutory period (minus a month) to sue, without an excuse that would entitle him to invoke a tolling doctrine that requires due diligence, he doesn't need an excuse because the jury found that his claim did not accrue more than three years before he sued.
36
The case for rejecting the statute of limitations defense was not open and shut. Gaiman was an experienced author, and may have smelled a rat early on. The jury could have disbelieved his denial that he saw the "related characters" copyright notices in the paperback books. And the fact that he was content with compensation no greater than what he received from DC Comics for work made for hire allows an inference that the real deal between him and McFarlane was that McFarlane would own the copyrights but pay Gaiman as well as or better than DC Comics, which also owned the copyrights on Gaiman's work, did. If better, then maybe paying him royalties on the statuettes was McFarlane's method of treating Gaiman better than DC Comics did. But all this is just to say that it was a close case. We cannot say that the jury was unreasonable to find that not until February of 1999 was Gaiman placed on notice that McFarlane was denying that Gaiman had copyrights on the three characters, and thus to reject the statute of limitations defense.
37
But we must consider McFarlane's alternative ground for reversal — that Medieval Spawn and Cogliostro are not copyrightable. (Partial reversal, actually, because McFarlane concedes that Gaiman is a joint owner of Angela.) This ground may seem inconsistent with McFarlane's contention that the "all related characters" copyright notice established that he, not Gaiman, owned the copyrights on Medieval Spawn and Cogliostro. If they were not copyrightable, McFarlane had no copyright in them. In fact, it became apparent at argument that McFarlane thinks that he owns copyright on them but that Gaiman doesn't. His theory seems to be that they became copyrightable, after Spawn No. 9 was published, as a result of further work done on them by him. We think they were copyrightable from the start, and that Gaiman owns the copyrights jointly with McFarlane. To explain this we must say more about the characters, black and white pictures of whom we append to this opinion. A detailed description of the characters may be found, along with color pictures, at http://spawn.home.sapo.pt/Characters.html.
38
McFarlane's original Spawn, Al Simmons, was a tall figure clad in what looks like spandex (it is actually "a neural parasite") beneath a huge blood-red cloak, making him a kind of malevolent Superman figure, although actually rather weak and stupid. His face is a shiny plastic oval with eyeholes but no other features. Gaiman decided to begin Spawn No. 9 with a different Spawn, whom he called "Olden Days Spawn." He explained to McFarlane that "[Olden Days] Spawn rides up on a huge horse. He's wearing a kind of Spawn suit and mask, although the actual costume under the cloak is reminiscent of a suit of armour." McFarlane drew "Olden Days Spawn" as (in the words of his brief) "essentially Spawn, only he dressed him as a knight from the Middle Ages with a shield bearing the Spawn logo." To make him credibly medieval, Gaiman in his script has Olden Days Spawn say to a damsel in apparent distress, "Good day, sweet maiden." The "damsel" is none other than Angela, a "maiden" only in the sense of making her maiden appearance in Spawn No. 9. Angela is in fact a "warrior angel and villain" who, scantily clad in a dominatrix outfit, quickly dispatches the unsuspecting Olden Days Spawn with her lance.
39
We learn that this event occurred in the thirteenth century, and the scene now shifts to the present day. Angela is dressed as a modern professional woman. The Al Simmons Spawn is lurking about in an alley and it is here that we meet Count Cogliostro for the first time. McFarlane had wanted a character who would be "basically ... the wisened [sic] sage that could sort of come down and give all the information and assimilate it." Gaiman interpreted this as an instruction to create "a character who can talk to Spawn and tell him a little bit more about what's going on in the background and can move the story along." So he created an "old man, who starts talking to Spawn and then telling him all these sort of things about Spawn's super powers that Spawn couldn't have known. And when you first meet him [Cogliostro] in the alley you think he's a drunken bum with the rest of them, and then we realize no, he's not. He's some kind of mysterious stranger who knows things."
40
Gaiman further described Cogliostro in a draft of Spawn No. 9 as "a really old bum, a skinny, balding old man, with a grubby greyish-yellow beard, like a skinny santa claus. He calls himself Count Nicholas Cagliostro" (later spelled Cogliostro). In a brief scene, Cogliostro, drawn by McFarlane as an old man with a long grey beard who faintly resembles Moses — McFarlane had been dissatisfied with Gaiman's verbal description, which made Cogliostro sound like a wino — explains to Simmons-Spawn some of the powers of Hellspawn of which Simmons is unaware. Cogliostro displays his mysterious wisdom by calling him "Simmons," to the latter's bafflement — how could Cogliostro have known? Angela then appears in her dominatrix costume, there is another duel, and she vanquishes Simmons (whose powers are in fact unimpressive), but does not kill him. He then blows himself up by accidentally pushing the wrong button on Angela's lance, which she had left behind. Happily he is not killed — merely (it seems) translated into another dimension — and will reappear in subsequent issues of Spawn.
41
McFarlane makes two arguments for why Gaiman does not have copyright in Medieval Spawn (the name that McFarlane settled on for Olden Days Spawn) or Cogliostro. The first is that all that Gaiman contributed was the idea for the characters, and ideas are not copyrightable, only expression is and the expression was due to McFarlane's drawing of the characters. It is true that people who contribute merely nonexpressive elements to a work are not copyright owners. As we said in Seshadri v. Kasraian, supra, 130 F.3d at 803, "the assistance that a research assistant or secretary or draftsman or helpfully commenting colleague provides in the preparation of a scholarly paper does not entitle the helper to claim the status of a joint author." There has to be some original expression contributed by anyone who claims to be a co-author, and the rule (we'll consider an exception momentarily) is that his contribution must be independently copyrightable. E.g., Erickson v. Trinity Theatre, Inc., supra, 13 F.3d at 1071; Aalmuhammed v. Lee, supra, 202 F.3d at 1231; 1 William F. Patry, Copyright Law and Practice 362-65 (1994). Had someone merely remarked to McFarlane one day, "you need a medieval Spawn" or "you need an old guy to move the story forward," and McFarlane had carried it from there, and if later a copyeditor had made some helpful editorial changes, neither the suggester nor the editor would be a joint owner. Cf. Erickson v. Trinity Theatre, Inc., supra, 13 F.3d at 1064, 1071-72. Otherwise almost every expressive work would be a jointly authored work, and copyright would explode.
42
But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared. The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren't thinking of the case in which it couldn't stand alone because of the nature of the particular creative process that had produced it.
43
Here is a typical case from academe. One professor has brilliant ideas but can't write; another is an excellent writer, but his ideas are commonplace. So they collaborate on an academic article, one contributing the ideas, which are not copyrightable, and the other the prose envelope, and unlike the situation in the superficially similar case of Balkin v. Wilson, 863 F. Supp. 523 (W.D.Mich.1994), they sign as coauthors. Their intent to be the joint owners of the copyright in the article would be plain, and that should be enough to constitute them joint authors within the meaning of 17 U.S.C. § 201(a). This is the valid core of the Nimmers' heretical suggestion that "if authors A and B work in collaboration, but A's contribution is limited to plot ideas that standing alone would not be copyrightable, and B weaves the ideas into a completed literary expression, it would seem that A and B are joint authors of the resulting work." 1 Nimmer & Nimmer, supra, § 6.07, p. 6-23; see also 1 Patry, supra, at 365-66.
44
The contents of a comic book are typically the joint work of four artists — the writer, the penciler who creates the art work (McFarlane), the inker (also McFarlane, in the case of Spawn No. 9, but it would often be a different person from the penciler) who makes a black and white plate of the art work, and the colorist who colors it. The finished product is copyrightable, yet one can imagine cases in which none of the separate contributions of the four collaborating artists would be. The writer might have contributed merely a stock character (not copyrightable, as we're about to see) that achieved the distinctiveness required for copyrightability only by the combined contributions of the penciler, the inker, and the colorist, with each contributing too little to have by his contribution alone carried the stock character over the line into copyright land.
45
McFarlane's second argument against the copyrightability of Medieval Spawn and Cogliostro appeals to the confusingly named doctrine of "scènes à faire" (literally "scenes for action," a theatrical term meaning the climactic scene in a play or opera, which is not the legal meaning). Related to the fundamental idea-expression dichotomy that we've already mentioned, the doctrine teaches that "a copyright owner can't prove infringement by pointing to features of his work that are found in the defendant's work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another." Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929 (7th Cir.2003); see also Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 913-14 (7th Cir.1996); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 616-17 (7th Cir.1982); Williams v. Crichton, 84 F.3d 581, 587-89 (2d Cir.1996). If standard features could be used to prove infringement, not only would there be great confusion because it would be hard to know whether the alleged infringer had copied the feature from a copyrighted work or from the public domain, but the net of liability would be cast too wide; authors would find it impossible to write without obtaining a myriad of copyright permissions.
46
A stock character is a stock example of the operation of the doctrine, e.g., Cavalier v. Random House, Inc., 297 F.3d 815, 824-25 (9th Cir.2002); Williams v. Crichton, supra, 84 F.3d at 588-89, and a drunken old bum is a stock character. Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir.1986). If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician, Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1175-76 (9th Cir.2003), and, in Learned Hand's memorable paraphrase of Twelfth Night, "a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress." Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930). It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy.
47
McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro's age, obviously phony title ("Count"), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright. DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 25, 28 (2d Cir.1982) (Batman, though assumed rather than actually determined to be copyrightable); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 753-55 (9th Cir.1978) (Mickey Mouse et al.); Detective Comics v. Bruns Publications, 111 F.2d 432, 433-34 (2d Cir.1940) (Superman); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., supra, 73 F.2d at 278 (Betty Boop). As long as the character is distinctive, other authors can use the stock character out of which it may have been built without fear (well, without too much fear) of being accused as infringers.
48
We are mindful that the Ninth Circuit denied copyrightability to Dashiell Hammett's famously distinctive detective character Sam Spade in Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc., 216 F.2d 945 (9th Cir.1954). That decision is wrong, though perhaps understandable on the "legal realist" ground that Hammett was not claiming copyright in Sam Spade — on the contrary, he wanted to reuse his own character but to be able to do so he had to overcome Warner Brothers' claim to own the copyright. The Ninth Circuit has killed the decision, see Olson v. National Broadcasting Co., 855 F.2d 1446, 1452 and n. 7 (9th Cir.1988); Walt Disney Productions v. Air Pirates, supra, 581 F.2d at 755 and n. 11, though without the usual obsequies, but even if the decision were correct and were binding authority in this circuit, it would not rule this case. The reason is the difference between literary and graphic expression. The description of a character in prose leaves much to the imagination, even when the description is detailed — as in Dashiell Hammett's description of Sam Spade's physical appearance in the first paragraph of The Maltese Falcon. "Samuel Spade's jaw was long and bony, his chin a jutting v under the more flexible v of his mouth. His nostrils curved back to make another, smaller, v. His yellow-grey eyes were horizontal. The v motif was picked up again by thickish brows rising outward from twin creases above a hooked nose, and his pale brown hair grew down — from high flat temples — in a point on his forehead. He looked rather pleasantly like a blond satan." Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like. A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don't read fiction, even when the movies and television that they watch are aesthetically superior.
49
Although Gaiman's verbal description of Cogliostro may well have been of a stock character, once he was drawn and named and given speech he became sufficiently distinctive to be copyrightable. Gaiman's contribution may not have been copyrightable by itself, but his contribution had expressive content without which Cogliostro wouldn't have been a character at all, but merely a drawing. The expressive work that is the comic-book character Count Nicholas Cogliostro was the joint work of Gaiman and McFarlane — their contributions strike us as quite equal — and both are entitled to ownership of the copyright.
50
Medieval Spawn may seem to present a closer case than Cogliostro so far as copyrightability is concerned, because he has no name in Spawn No. 9. In fact he has never been named — "Medieval Spawn" is a description, not a proper name. But the Lone Ranger doesn't have a proper name either (at least not one known to most of his audience — actually he does have a proper name, John Reid), so that can't be critical. A more telling objection to copyrightability is that the identifier, "Medieval Spawn," was added by McFarlane in subsequent issues of Spawn to which Gaiman did not contribute. Only his costume and manner of speech, together with the medieval background, distinguish him in Spawn No. 9 from other Hellspawn.
51
But that is enough expressive content for copyrightability, because Spawn itself (the original Spawn, né Al Simmons) is not a stock character (McFarlane would have a heart attack if we said he was). Spawn is copyrightable, and the question is simply whether Medieval Spawn is sufficiently distinct from Spawn also to be copyrightable as a derivative work. 17 U.S.C. §§ 101, 103; Lee v. A.R.T. Co., 125 F.3d 580, 581-82 (7th Cir.1997); Gracen v. Bradford Exchange, 698 F.2d 300, 305 (7th Cir.1983); Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1219-20 (9th Cir.1997); Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir.1995).
52
The purpose of requiring that a derivative work to be copyrightable be significantly different from the copyrighted original is twofold: to avoid the confusion that would be created if two indistinguishable works were copyrighted, Pickett v. Prince, 207 F.3d 402, 405 (7th Cir.2000); Gracen v. Bradford Exchange, supra, 698 F.2d at 304; Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., supra, 122 F.3d at 1220, and to prevent a copyright owner from extending his copyright beyond the statutory period by making an identical work as the statutory period was nearing its end, calling it a derivative work, and copyrighting it. Lee v. A.R.T. Co., supra, 125 F.3d at 581-83. These are really one point rather than two, since the second ploy would work only because a copier would find it difficult to prove that he had copied the expired original rather than the unexpired derivative work. Just suppose that the copyright on Work A expires in 2000 and the copyright on B in 2020, and in 2001 someone produces a work indistinguishable from either and claims that he is copying A, not B, and so is not an infringer, and the owner of the unexpired copyright on B replies no, it's B you're copying.
53
That is no problem here. A Spawn who talks medieval and has a knight's costume would infringe Medieval Spawn, and if he doesn't talk medieval and doesn't look like a knight then he would infringe Spawn.
54
To summarize, we find no error in the district court's decision, and since the decision gave Gaiman all the relief he sought, there is no need to consider the cross-appeal.
55
AFFIRMED.
APPENDIX:
56
SPAWN, MEDIEVAL SPAWN, ANGELA, AND COUNT NICHOLAS COGLIOSTRO
57
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1589610/ | 280 S.W.3d 888 (2009)
In the Interest of K.C.B., A Child.
No. 07-07-0032-CV.
Court of Appeals of Texas, Amarillo.
March 12, 2009.
Rehearing Overruled April 15, 2009.
*891 James C. Fling, Adkins & Fling, Shamrock, TX, for Appellant.
Trevor A. Woodruff, Office of General Counsel, Texas Department of Protective & Regulatory Services, Austin, TX, for Appellee.
Dale A. Rabe, Bird, Bird & Rabe, Childress, TX, for Ad litem.
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
MACKEY K. HANCOCK, Justice.
This is an accelerated appeal of a trial court's order terminating the parental rights between appellant, A.M.B., and K.C.B., her infant daughter.[1] Appellant sets forth ten issues alleging trial court error that may be grouped as follows: 1) denial of appellant's right to a jury trial; 2) error in using record from the Associate Judge's hearing; 3) admission of evidence regarding meconium drug testing; 4) insufficiency of the evidence to support the allegations under section 161.001(1)(D), (E) and (O) of the Texas Family Code.[2] For the reasons set forth below, we affirm.
Procedural and Factual Background
Appellee, the Texas Department of Protective and Regulatory Services (Department) took custody of K.C.B. on December 9, 2004. On March 21, 2006, Associate Judge Phil N. Vanderpool tried the lawsuit. Judge Vanderpool entered an order of termination of appellant's parental rights on March 31, 2006. On April 3, 2006, appellant filed a Notice of Appeal To Referring Court. Subsequently, on April 19, 2006, appellant filed a Statement of Points Of Error To Be Relied On By Appellant On Appeal. Then on May 2, 2006, a trial de novo was conducted by the referring court. The referring court, the trial court below, signed its Order of Termination on December 18, 2006, and it was filed of record on December 21, 2006. Appellant filed a notice of appeal on January 2, 2007. On January 2, 2007, appellant also filed a Statement of Points Of Error To Be Relied On By Appellant On Appeal.[3] This Court originally ruled in an opinion dated October 11, 2007, that appellant's issues on appeal had not been preserved for appeal. Subsequently, a motion for rehearing was filed alleging that the Statement of Points For Appeal had been timely filed with the trial court. This motion was overruled by the Court. Appellant filed a petition for review by the Texas Supreme Court, which was granted. Thereafter, the Texas Supreme Court reversed this Court and remanded the case for consideration of appellant's points of error.
Statement of Points for Appeal
In the Statement of Points for Appeal filed after the trial court issued its judgment following the trial de novo, appellant alleges the following probable points of appeal:
1) The trial court erred in utilizing the reporter's record from the hearing by the Associate Judge in that said reporter's record was not available for the hearing on May 2, 2006, which is required to be a trial de novo.
2) The trial court erred in delaying ruling on respondent's objections to evidence offered in the prior hearing since *892 the reporter's record was not available and this was required to be a trial de novo.
3) The trial court erred in finding that respondent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child in that the evidence was insufficient.
4) The trial court erred in finding that respondent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child in that the evidence was insufficient.
5) The trial court erred in finding that respondent failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child in that there is no evidence or insufficient evidence of abuse or neglect of the child.
6) The trial court erred in finding that termination of the parent-child relationship between respondent and the child is in the child's best interest in that the evidence is insufficient.
7) The trial court erred in using the reporter's record in any manner on the trial de novo in that respondent's previous attorney should have withdrawn his representation of respondent due to a conflict of interest.
8) The trial court erred in using the reporter's record in any manner in that respondent's attorney at the previous hearing provided ineffective legal assistance to respondent.
9) The trial court erred in admitting evidence at the trial de novo the court reporter's record of the hearing before the associate judge and the evidence was insufficient to establish the facts required to terminate the parental relationship with respondent.
10) The trial court erred in proceeding to trial on the trial de novo without notice to James Edward Brown, the father of the child, and a person affected by the trial court's judgment.
Although we have points of appeal filed by appellant after the trial de novo, we are still required to determine if the points of error alleged in the original and supplemental brief are properly before this court.
Standard of Review
This appeal is governed by the rules of the Supreme Court regarding accelerated appeals and the procedures set forth in Subchapter E of Chapter 263 of the Texas Family Code. § 263.405(a). The Department was named as the managing conservator of K.C.B. in the trial court's final order. As such, this order is an order pursuant to Subchapter E, Chapter 263. Accordingly, any appeal of this final order must comply with the terms of Chapter 263. Chapter 263 requires that a statement of points on which the party intends to appeal be filed with the trial court not later than the 15th day after the trial court enters the final order. § 263.405(b). The statement may be combined with a motion for new trial. Id. Finally, the statute provides that the appellate court may not consider any issues not contained within the referenced statement of points or in conjunction with the motion for new trial. § 263.405(1).
Analysis
Applying this statutory scheme to the case before the court results in the inability of the court to consider all of appellant's points of error. Those points of error not listed in the statement of points for appeal filed subsequent to the trial de novo may not be considered by this court. See In re R.M.R., 218 S.W.3d 863, *893 864 (Tex.App.-Corpus Christi 2007, no pet.). The following points of error raised by appellant are not part of the statement of points for appeal:
Point of Error No. 1: The trial court erred in denying appellant's request for a jury trial.
Point of Error No. 3: The trial court erred in admitting into evidence the meconium drug test and results in that such test has not been scientifically determined to be accurate and there was no evidence concerning the collection method, the chain of custody, the reliability and methodology used by the laboratory, and the accuracy of the laboratory results.
Point of Error No. 4: The trial court erred in admitting into evidence the meconium drug test and results in that the test was performed on the child without express consent of the parents.
Point of Error No. 5: The trial court erred in admitting into evidence the meconium drug test as it was hearsay.
Accordingly, we cannot consider these points of error. See In re R.C., 243 S.W.3d 674, 676-77 (Tex.App.-Amarillo 2007, no pet.). Therefore, appellant's points of error 1, 3, 4 and 5 are overruled.
Use of Reporter's Record
In Point of Error No. 2, appellant complains about the trial court's use of the reporter's record from the Associate Judge's trial. Appellant's contention is that record was never offered into evidence and was not available at the time of the trial de novo. However, a review of the record clearly shows that the issue of the use of the entire record, to include the court reporter's record, was discussed prior to the offering of evidence at the trial de novo. At no time did appellant ever object to the trial court's use of the reporter's record and the question of the lack of availability of that record on the date of the trial de novo was never raised by anyone. Accordingly, the issue has not been preserved for appellate review. See TEX.R.APP. P. 33.1(a)(1)(A).
Legal and Factual Sufficiency of the Evidence
In terminating the parental rights of appellant, the trial court found, by clear and convincing evidence, that appellant had:
1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; and
3) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.
Additionally, the trial court found, by clear and convincing evidence, that termination of parent-child relationship between appellant and the child would be in the child's best interest. It is the evidentiary sufficiency for these determinations that appellant is attacking in Points of Error Nos. 6, 7, 8, 9, and 10.
Standard of Review
The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Consequently, termination proceedings must be *894 strictly scrutinized. In re G.M., 596 S.W.2d 846, 846 (Tex.1980). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit. Holick, 685 S.W.2d at 20. Thus, due process requires application of the clear and convincing standard of proof in cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002). Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. See § 101.007. See also In re G.M., 596 S.W.2d at 847; In re Z.J., 153 S.W.3d 535, 539 (Tex.App.-Amarillo 2004, no pet.). Parental rights, however, are not absolute, and it is essential that the emotional and physical interests of the child not be sacrificed merely to preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex.2002).
Section 161.001 of the Family Code permits a court to order termination of parental rights if the petitioner establishes one or more acts or omissions enumerated under subsection (1) of the statute and also proves that termination of the parent-child relationship is in the best interest of the child. See § 161.001(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Though the same evidence may be probative of both issues, both elements must be established and proof of one element does not relieve the petitioner of the burden of proving the other. See id.; In re C.H., 89 S.W.3d at 28.
In reviewing the legal sufficiency of the evidence to support an order terminating parental rights, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (citing In re J.F.C., 96 S.W.3d at 266). To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id.
The standard for reviewing the factual sufficiency of termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. See In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006) (citing In re C.H., 89 S.W.3d at 27). If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108 (citing In re J.F.C., 96 S.W.3d at 266).
Only one statutory ground is required to terminate parental rights under § 161.001. See In re A.V., 113 S.W.3d 355, 362 (Tex.2003); In re S.F., 32 S.W.3d 318, 320 (Tex.App.-San Antonio 2000, no pet.). Therefore, we will affirm the termination order if the evidence is sufficient on any statutory ground relied on by the trial court in terminating the parent-child relationship *895 when there is also a finding that termination is in the child's best interest. See In re A.V., 113 S.W.3d at 362.
Analysis
Appellant's points of error 6 and 7 attack the legal and factual sufficiency of the evidence to support termination under § 161.001(1)(D) & (E).[4] Each of these allegations of the Department deals with endangerment of the physical or emotional well being of the child. Because the evidence overlaps the two distinct statutory allegations, we will address both points of error together.
When examining the record for purposes of an evidentiary review under § 161.001(1)(D) & (E), endanger has been determined to mean expose to loss or injury or to jeopardize. See In re M.C., 917 S.W.2d 268, 269 (Tex.1996). Further, the courts have held that it is not necessary that the conduct be directed at the child or that the child actually suffers injury, or even that the conduct constitutes a concrete threat of injury to the child. In re M.J.M.L., 31 S.W.3d 347, 350 (Tex.App.-San Antonio 2000, pet. denied). The conduct proscribed involves not only acts, but includes omissions or failures to act. Id.
The evidence produced for the trial court included a meconium drug screen on the child's diaper which was positive for cocaine, which is evidence of the mother's drug use during pregnancy. A mother's use of drugs during pregnancy may be conduct which endangers the physical and emotional well being of the child. In re S.M.L.D., 150 S.W.3d 754, 757 (Tex. App.-Amarillo 2004, no pet.). The record further reflected that, during the time period appellant was trying to effectuate a reunification with the child, she refused to submit for drug screening on more than one occasion. The trial court may infer from a refusal to take a drug test that appellant was using drugs. In re J.T.G., 121 S.W.3d 117, 131 (Tex.App.-Fort Worth 2003, no pet.). The evidence at trial reflected that appellant was aware that a safety plan had been initiated for the protection of the child after the mother and child were released from the hospital. Further, there was significant testimony that appellant had violated the safety plan on almost a daily basis. The trial court could view appellant's actions in violating the safety plan as conduct that endangered the child. See In re Z.J., 153 S.W.3d at 541 (testimony regarding violation of the safety plan part of the evidence used to prove violation of § 161.001(1)(D) & (E)). The trial court also had before it the evidence that the baby was being kept in a place where there was an active methamphetamine lab. Despite appellant's contention that she did not know of the existence of the methamphetamine lab at the residence where the family lived, the trial court could choose not to believe this denial based strictly on the credibility of appellant's testimony. See In re E.J.P., No. 06-04-00131-CV, 2005 WL 2138573, 2005 Tex. App. LEXIS 7372 (Tex.App.-Texarkana September 7, 2005, no pet.)(mem.op.). The record also reflects that on the day the child was picked up by the Department, which was the same day that the search warrant for the methamphetamine lab was executed, there were several firearms located in the room with the child. Appellant initially claimed her fifth amendment *896 right against self-incrimination when asked about the weapons. See U.S. CONST. Amend. V. However, during the trial before the referring court, appellant admitted that the weapons were present. The presence of weapons around a drug manufacturing operation clearly exposes the child to loss or injury. See In re M.C., 917 S.W.2d at 269.
Remembering first, in a legal sufficiency review, a reviewing court should look at all the evidence in the light most favorable to the finding of the factfinder. In re J.P.B., 180 S.W.3d at 573. When all of these facts are considered in that most favorable light, it becomes clear to this court that a reasonable factfinder could have formed a firm belief or conviction that trial court's finding was true. Id. Accordingly, appellant's legal sufficiency challenge to the trial court's judgment under § 161.001(1)(D) & (E) is overruled.
When reviewing the factual sufficiency of the trial court's findings, we review the entire record without the lens of "in the light most favorable" to determine whether or not a factfinder could reasonably form a firm belief or conviction about the truth of the Departments allegations. In re H.R.M., 209 S.W.3d at 108. Additionally, we must review the disputed evidence to determine whether this evidence was so strong that a factfinder could not have reasonably formed a firm belief or conviction about the truth of the Departments allegations. Id. There was no disputed evidence offered except that which characterized appellant as a "good mother" when looking after the child at issue. These general characterizations are not such as to prevent the factfinder from reasonably forming a firm belief or conviction about the truth of the Department's allegations. Further, the evidence presented by the Department is more than sufficient to support a firm belief or conviction about the truth of the allegations, even when viewed in a neutral light. Id. Accordingly, the evidence was factually sufficient to support the judgment of the trial court. Appellant's issue regarding the factual sufficiency of the evidence is overruled.
Inasmuch as only one statutory ground is required to terminate parental rights under § 161.001, we will omit a discussion of the Department's allegations under § 161.001(1)(O). See In re A.V., 113 S.W.3d at 362; In re S.F., 32 S.W.3d at 320. Instead we will next consider the best interests of the child under § 161.001(2).
Appellant's lists as one of the findings by the trial court to be challenged, the trial court's finding that termination of the parent-child relationship is in the best interest of the child. However, appellant does not brief this point nor provide the court with any analysis of the facts and the law in regards to this issue. Accordingly, the point, if truly raised by appellant, is insufficiently briefed. See TEX.R.APP. P. 38.1(i). As such, the point of error is waived. See Davey v. Shaw, 225 S.W.3d 843, 852 (Tex.App.-Dallas 2007, no pet.). Accordingly, that portion of the judgment stands.
Conclusion
Having overruled appellant's challenges to the legal and factual sufficiency of the evidence, and having found appellant's other issues not properly before us, the judgment of the trial court is affirmed.
NOTES
[1] See TEX.R.APP. P. 9.8(b).
[2] Further reference to the Texas Family Code will be by reference to "§ ___."
[3] The Statement Of Points Of Error For Appeal was not part of the original or first supplemental record received from the trial clerk. A final supplemental record with the Statement Of Points Of Error For Appeal was received by this Court on August 25, 2008.
[4] § 161.001(1) states that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919291/ | 912 So.2d 496 (2005)
Oletha MAHAFFEY, Appellant
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
No. 2004-CC-00299-COA.
Court of Appeals of Mississippi.
October 11, 2005.
Oletha Mahaffey, Appellant, pro se.
Albert Bozeman White, Madison, attorney for appellee.
Before KING, C.J., MYERS, and ISHEE, JJ.
ISHEE, J., for the Court.
¶ 1. Oletha Mahaffey appeals the circuit court's decision to affirm the ruling of the Mississippi Employment Security Commission Board of Review which denied her unemployment compensation. Finding no error, we affirm.
STATEMENT OF FACTS
¶ 2. Oletha Mahaffey was employed by the Hinds County School District (Employer) as a teacher's assistant from August 4, 2002 until December 13, 2002. Mahaffey voluntarily terminated her employment with Employer in order to find *497 a job that paid more money so that she would be able to go to college. Mahaffey subsequently sought unemployment benefit through the Mississippi Employment Security Commission (MESC) on August 8, 2003. She was informed by letter, dated August 28, 2003, that she was not eligible for unemployment compensation because she had left work voluntarily without good cause.
¶ 3. On September 6, 2003, Mahaffey filed a notice of appeal with MESC, and a hearing was held by an appeals referee on September 25, 2003. At the hearing, Mahaffey testified in relevant part that, when she quit, she could have continued her employment with Employer, however, "[she had] no wish to stay." She further testified that she had not been employed since she voluntarily quit her job with Employer. The employer's representative who testified at the hearing stated that Mahaffey voluntarily left it's employment, and that she certainly could have continued working for Employer if she had wanted to.
¶ 4. Following the hearing, the referee determined that, pursuant to Mississippi Code Annotated § 71-5-513 A(1)(a) (Rev. 2000), Mahaffey was disqualified for benefits because she left work voluntarily without cause. The referee's opinion was based on his findings of fact that Mahaffey had not been under any threat of discharge, and that she had voluntarily quit her employment. Mahaffey was notified that she was disqualified from receiving unemployment compensation until she was reemployed and had earned eight times her weekly benefit amount or $856.
¶ 5. Mahaffey subsequently appealed the referee's decision to the MESC Board of Review. On November 6, 2003, the MESC Board of Review adopted the referee's decision. Mahaffey then appealed to the circuit court. On January 21, 2004, the circuit court issued an order affirming the decision of the Board of Review. Mahaffey was then granted permission by the Mississippi Supreme Court to proceed in forma pauperis, and she perfected this appeal pro se.
DISCUSSION
¶ 6. We note at the outset that Mahaffey failed to file a brief in support of this appeal. Where one party fails to file a brief and the other party's brief makes out an apparent case of error, the appellate court is not obligated to look to the record to find a way to avoid the force of that party's argument. Selman v. Selman, 722 So.2d 547, 551(¶ 13) (Miss.1998). However, while this Court had no obligation to consider Mahaffey's appeal, we chose to conduct a review to ensure that no injustice has been done. See Tower Loan of Mississippi, Inc. v. Jones, 749 So.2d 189, 191-92(¶ 11) (Miss.Ct.App.1999).
¶ 7. Before proceeding we turn to address the standard of review. Absent fraud, a reviewing court may only reverse the decision of the MESC Board of Review when its decision is not supported by substantial evidence. Hoerner Boxes, Inc. v. Mississippi Employment Sec. Comm'n, 693 So.2d 1343, 1346-47 (Miss.1997).
¶ 8. As previously discussed, Mississippi Code Annotated § 71-5-513 A(1)(a) provides that a person who voluntarily abandons his employment without good cause is disqualified from receiving unemployment compensation "until he has earned remuneration for personal services performed for an employer ... equal to not less than eight ... times his weekly benefit amount."
¶ 9. In this case, the record reflects that Mahaffey testified that she could have continued working for Employer, however, she had no wish to stay. She also testified *498 that she had not worked during the period between when she quit her job with Employer in December 2002 and when she testified before the MESC referee in late September 2003. Based on Mahaffey's own testimony, this Court concludes that she failed to show good cause why she quit her job, and that there is substantial evidence to support the decision of the MESC Board of Review. Additionally, this Court finds that the circuit court properly affirmed the MESC Board of Review's decision.
¶ 10. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT IS AFFIRMED.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919238/ | 912 So.2d 1264 (2005)
F.L.M., Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Appellee.
No. 4D04-3163.
District Court of Appeal of Florida, Fourth District.
November 2, 2005.
David Shahoulian and Lenore C. Smith of Holland & Knight, LLP, Miami, Jonel Newman, Florida Legal Services, Miami, and Anne Ketover Watkins of Anne Ketover Watkins, P.A., Port St. Lucie, for appellant.
Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
Iris S. Rogatinsky and Jodi E. Samuels of Weil, Gotschal & Manges, LLP, Miami, for Amicus Curiae Florida's Children First, Inc.
*1265 ON MOTION FOR REHEARING
PER CURIAM.
We grant rehearing, withdraw our May 18, 2005, opinion and in its place substitute the following.
In this dependency case, the child showed up in the United States as an orphan from Guatemala. He had no legal custodian but lived here and there, finding work when he could. He now has temporary housing with a local family on a voluntary basis. Because he does not have legal status, however, he is unable to obtain an alien work permit. This petition was filed on his behalf to obtain a declaration by a State Court that he is a dependent child under Florida law, which he could then use to apply to the United States Attorney General for a residency work permit. It is the trial court's refusal to grant such a declaration that brought this case, tempest tossed, to our doors.
*1266 He was born in Guatemala on January 12, 1986. His father died in 1993, his mother in 1996. Orphaned at age 10, he stayed in Guatemala for the next few years and lived with an aunt and uncle. Struggling for the necessaries of life and unable to get an education, he left Guatemala at the age of 14 in December 2000 to join an older brother who then lived here in Indiantown. He left the brother's house, however, and has since lived with other people. He has supported and cared for himself, sometimes going without food.
He recently fathered an infant son, but he and the mother are not married. The mother's family has voluntarily furnished him with a place to stay. The family is under no legal compulsion to do so.
The petition was filed by a local attorney acting both as petitioner and counsel for the child. At one point petitioner states that she "believes that the minor child has been abandoned by his parents due to their deaths." This statement is part of the general background. Later in the petition, petitioner alleges that "the minor child is dependent within the intent and meaning of [section] 39.01, Florida Statutes."
The trial court held a final hearing on the petition on November 13, 2003. At trial, evidence established that the boy was 17 years old, that his parents are both deceased, and that he has no legal custodian. Petitioner made clear that she was not seeking services from the Department of Children and Families, and that she sought only that the child be declared dependent in order to seek legal residency in the United States under the federal special immigrant juvenile visa program. She argued that such a declaration would be in his best interest as well as that of his infant child.
At the point where the evidence indicated that this child had himself fathered an infant son, the trial judge expostulated that he was now "emancipated". The Department did not make any objection on that ground at the hearing, however; it was the trial judge who raised the question. Florida law does allow for the self-executing "emancipation" of minor children who marry. See § 743.01, Fla. Stat. (2004) ("The disability of nonage of a minor who is married or has been married or subsequently becomes married ... is removed."). But there is nothing in the record that this child has ever married. Another statute allows for minors to petition a court through a guardian to be treated as adults. § 743.015, Fla. Stat. (2004). There was no evidence that he has ever done so. He was still a child; he continued in his unmarried minority within the meaning of our laws right up through the trial itself and even after.
At that point in the trial the following colloquy occurred between the judge and the attorney for the Department:
COURT: What is the Department's position?
COUNSEL: Judge, I'll leave it up to the Court. My understanding is that he is self-supporting inasmuch as he earns [indiscernible] jobs and that he does live with people who are willing to undertake his living accommodations until he's eighteen. That's all I really know at this point.
* * *
COURT: Does the Department feel that he's dependent?
COUNSEL: I think he technically meets the definition of abandonment if there's no parents or legal custodian. I understand he's living with his girlfriend's parents, but I don't think they have any legal obligation for his support. [e.s.]
*1267 At the conclusion, the trial judge simply stated, "All right, submit the order."
We see no ambiguity in the trial judge's final comment: "All right, submit the order." The Clerk's trial notes reflect the following: "Judge grants dependency on the child." [e.s.]
Counsel sent a proposed order declaring dependency and a letter asking the judge to sign the order based on the judge's findings and instructions at the hearing. Counsel also reminded the trial court that the child would reach the age of 18 on January 12, 2004. The child's attorney made several requests to the office of the assigned judge for the entry of the order, but none was ever forthcoming. The trial judge took no action on the request. As a result, on January 8, 2004, counsel filed an emergency motion for the declaration of dependency to "obtain the order ... prior to the child's 18th birthday." Counsel tells us:
"In the late afternoon of January 9, 2004, a Friday, the ... Judge's clerk contacted undersigned via telephone relaying the Judge's response to the Emergency Motion, to wit, that the judge would not sign the order unless he obtained a letter from Citizenship and Immigration Services stating that he had jurisdiction to preside over this matter."
Counsel attempted to obtain the requested letter, but INS declined to send such a letter because "it is agency policy not to write such letters for children who have never been in the actual or constructive custody of immigration authorities." On July 23, 2004, the child filed a motion seeking an order, nunc pro tunc,[1] for the trial judge to sign the dependency order. Later the same day, the trial court denied the motion without prejudice. Thence this appeal.
From the refusal to sign the order that he himself had earlier directed counsel to submit, it is apparent to us that the trial judge thought he lacked jurisdiction to do so without the consent of the Attorney General. We can infer his probable reason from the words used and their context. His denial of the last motion "without prejudice" after having previously granted the petition at the end of trial evidences a post trial notion that the Attorney General's consent was necessary to the declaration and that upon receipt of such consent he would sign the order. We think the trial judge erred in that regard.
In 1997 Congress amended federal statutes to afford children special immigration status within the United States. 8 U.S.C. § 1101(a)(27)(J)(i)-(iii) (2002). In its essential terms, this statute allows an alien child "who has been declared dependent [by] a juvenile court located in the United States" to appeal to the Attorney General for legal residency status. The statutory text makes clear, however, that a state court is precluded from declaring dependency without the Attorney General's consent only if the Attorney General has actual or constructive custody of the child. Nothing in this record would support a finding that the Attorney General has ever had any custody of the child.
In P.G. v. Department of Children & Family Services, 867 So.2d 1248, 1249 (Fla. 4th DCA 2004), we held that the trial court lacked jurisdiction over a child to declare dependency because the child was then in the constructive custody of the Attorney General, who had released him to an uncle. But where a child has never been in the custody of the Attorney General, *1268 as here, we now explicitly hold that the statute makes no such consent necessary.
There was no jurisdictional basis for the trial judge to refuse to sign the order. Because the trial judge's only reason for denying entry of the order has been shown to be legally insufficient, we assume that if he had been given the correct understanding of the law he would have signed the order, as he in fact indicated at the close of trial.
The Department was represented at the trial and acknowledged that it had no objections, that the child met the statutory requirements, and that the child qualified as dependent under our law. Nevertheless, on appeal the Department now argues that several deficiencies stand in the way of a reversal. It argues that the child failed to serve the Department properly, that notice of the hearing was insufficient, that the petition was not verified, that no predisposition hearing had been held, that there is no predisposition study, that there is no case plan, and that there was no specific finding by the trial judge that the child is eligible for long term foster care. It is clear to us that the Department waived all these alleged procedural defects by failing to assert them at the trial.
The Department now attempts for the first time to argue that the child did not qualify as dependent. This is plainly contrary to the position that the Department took in the trial court. The Department then was not only willing to leave that decision up to the trial judge but it also actually conceded to the court that, because he has no parents or legal custodian, "he technically meets the definition of abandonment if there's no parents or legal custodian." The Department acknowledged that although the child was then living with a family they did not have any legal obligation to support him.
Essentially the Department argues that an orphaned alien child living in Florida without any legal custodian is not dependent under our statute. Section 39.01(14)(e) states that: a ("`[c]hild who is found to be dependent' means a child who... is found by the court ... [t]o have no parent or legal custodians capable of providing supervision and care."). § 39.01(14)(e), Fla. Stat. (2005). The wording of this provision seems to begin with a conclusion (a child found to be dependent), and then ends with the basis for that conclusion (found by the court to have no parent or legal guardian).
The initial phrase, child who is found to be dependent, is the subject of the sentence. In context this initial phrase "child who is found to be dependent" does not refer to judicial fact-finding because the obvious purpose is to provide a definition of a "dependent child." If this initial phrase were read to refer to judicial fact-finding, the sentence would literally say "a child who is found to be dependent is a child who is found to be dependent." Thus this initial phrase should be understood to mean a child who is discovered in circumstances demonstrating a reliance on persons other than a parent or legal guardian. It refers to a condition discovered to exist that defines the subject.
After this initial phrase, the sentence uses the transitive verb means to relate the subject to a legal result if certain facts are found by the court. These facts are specified as: (1) the loss of both parents, and (2) the absence of any legal custodian. If those facts are found to exist, the text stipulates that the child is, as a matter of law, dependent. The text might just as well have been formulated thus: A child found by the court to have no parent or legal custodian capable of providing supervision and care is dependent. Either way the meaning is inescapable: a minor *1269 child in Florida without parents or legal guardian is dependent under Florida law.
At trial when the judge asked the Department if the child is dependent, counsel responded using the term abandoned. This is not properly characterized as an abandonment case. The same definitional statute defines abandoned as the failure (of whoever is responsible) while being able to provide a minor child with support, guidance and supervision. Strictly speaking, the term abandoned is not appropriate when the parents or guardian have died because, in that event, they are no longer able to do anything. The real question was whether an orphaned child without a legal custodian is dependent. Section 39.01(14)(e) provides the answer. When a judge finds that a child is orphaned and has no legal custodian, the legal conclusion is that the child is dependent. Those facts are the ones proven at the hearing. The child had lost both his parents to death, and there had never been anyone appointed by a legal authority to be his custodian. His circumstances fit exactly within the statutory definitions.
For these reasons, the Department's reliance on S.H. v. Department of Children & Families, 880 So.2d 1279 (Fla. 4th DCA 2004), is misplaced. There the child was not an orphan; his parents were still living in Guatemala. The child's residency with an uncle in Florida was undertaken with the permission and consent of his living parents. Hence the child was not legally dependent because he was not abandoned. In contrast, here the child has no parents, no legal custodian, and no caregiver legally responsible for his welfare. His caregiver at the time of trial was a mere volunteer without legal appointment. Under these circumstances the child met the statutory requirements for dependency under section 39.01(14)(e).
The Department recurs to a public policy argument on appeal that Florida courts should refuse to make use of the statute Congress intended for alien juveniles to use because:
"Many undocumented aliens, usually in their late teens, have attempted to utilize [8 U.S.C. § 1101(a) ] in the circuit dependency courts of south Florida for years, and that is precisely what Appellant is attempting to do in this case. However ... such is not a proper use of Florida's laws, courts, and resources devoted to helping truly-dependent, truly-needy children."
This argument is unavailing, because if a child qualifies for a declaration of dependency under our statutes, the child's motivation to obtain legal residency status from the United States Attorney General is irrelevant. If federal law grants a right to alien children to regularize their immigration status by first obtaining a state court adjudication of dependency, then there is no basis for failing to declare a child dependent so long as he or she meets the statutory criteria for dependency.
The Department also argues that the claim for a declaratory judgment is moot because the child reached his majority while the case was pending in court. We do not think the matter is moot simply because of the removal of the disability of nonage. To be sure, the passage of the child into legal adulthood effectively terminates any necessity for the State to provide him with or supervise the provision of services under the child dependency laws.
When this matter was ready for a final determination and submitted to the court below, the trial judge acknowledged that the child met all the requirements for a declaration of dependency under Florida law. From the record it is indisputable that he qualified as dependent, because he was a child living within our state borders without any parent or legal custodian anywhere. *1270 That presented a clear statutory basis for a finding of dependency. Because the denial of that declaration has the effect of continuing to deprive him of a legal basis for regularizing his immigration status, the issue is not moot.
We again stress that, because he was being allowed to reside with a local family, he did not have any need for services from the State. The conditions of his residency with the family of the mother of his child gave no cause to the Department for concerns about his well-being. For the few days then remaining in the child's minority, the trial judge could simply have made a formal finding that the voluntary provision of such services by the family would suffice under our dependency statutes. There was no need for further home study, a case plan or placement. There would have been no depletion of State resources for other needy children. But this dependent child would at least have been given the opportunity to ask the United States Attorney General to grant him, if he be so advised, resident alien status. No one involved in this case has shown any legal reason why that should not have been allowed to happen.
The judge in question having since retired, we therefore return this case to a successor judge with instructions to enter an order nunc pro tunc[2] declaring the child dependent under Florida law and further providing that the Department's responsibility over him necessarily terminated when he attained the age of 18.
It is so ordered.
FARMER, SHAHOOD, and TAYLOR, JJ., concur.
NOTES
[1] A Latin phrase meaning "now for then."
[2] Tunc being January 8, 2004. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070550/ | Order entered July 16, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00876-CV
IN RE FIESTA MART, INC., Relator
Original Proceeding from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-13-06510-A
ORDER
Based on the Court’s opinion of this date, we DENY relator’s petition for writ of
mandamus. We ORDER relator to bear the costs of this original proceeding.
/s/CAROLYN WRIGHT
CHIEF JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922165/ | 756 A.2d 777 (2000)
Jo-Anne GUIEL
v.
ALLSTATE INSURANCE COMPANY.
No. 99-046.
Supreme Court of Vermont.
April 28, 2000.
*778 Geoffrey W. Crawford of O'Neill Crawford & Green, Burlington, for Plaintiff-Appellee.
Charles Platto and Eric D. Jones of Brooks McNally Platto & Vitt, Norwich, for Defendant-Appellant.
Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
AMESTOY, C.J.
In response to the parties' cross-motions for summary judgment in this declaratory judgment action, the superior court ruled that plaintiff Jo-Anne Guiel, who had obtained a settlement in a prior lawsuit seeking damages for injuries she sustained in an automobile accident, was entitled to deduct a proportionate share of the attorney's fees she incurred in the prior lawsuit from her insurer's subrogation interest in the settlement. On appeal, her insurer, defendant Allstate Insurance Company, *779 contends that it should not have to pay a proportionate share of plaintiff's attorney's fees because it informed plaintiff that it was actively pursuing its subrogation claim directly against the tortfeasor's insurer in an independent arbitration proceeding. In the alternative, Allstate argues that the court acted improperly and prematurely by deciding the matter in a summary judgment ruling. We affirm.
The material facts are not in dispute. On March 22, 1994, a truck owned by Barrett Trucking Company struck the vehicle plaintiff was driving. At the time of the accident, plaintiff was covered by an Allstate automobile insurance policy. Plaintiff filed a claim with Allstate for medical expenses and property damage. In August 1994, Allstate wrote to Barrett Trucking's insurer, CNA Insurance Company, stating that Allstate was entitled to subrogation of any payments made to plaintiff arising from injuries she sustained in the Barrett Trucking accident, and asking that CNA protect Allstate's right of subrogation in dealing with plaintiff. In January 1995, Allstate wrote to the attorney retained by plaintiff, stating that its policy allowed it to subrogate directly to the liability carrier any amount paid under the medical payments coverage, and noting that it had already advised CNA of Allstate's right of subrogation. In May 1995, Allstate again wrote to CNA, this time indicating how much money it had paid plaintiff up until that point, and stating that it expected to be paid directly for its subrogation claim. Allstate wrote to CNA a final time in February 1996, reiterating that CNA was responsible for reimbursing Allstate directly for all amounts paid to plaintiff "at the time of any settlement of her claim."
In April 1996, plaintiff filed a negligence action against Barrett Trucking. That claim was joined with a lawsuit plaintiff filed at the same time against another driver for injuries she sustained in a July 30, 1993 accident. Both plaintiff and the defendants retained medical experts, who were deposed at some point during the ensuing two years as the case progressed toward trial. The parties disputed causation, apportionment of damages, and the reasonableness and necessity of plaintiff's medical charges. In March 1998, Allstate declined to participate in a mediation session between plaintiff and Barrett Trucking. On March 30, 1998, shortly before the scheduled trial was to take place, plaintiff settled her claim against Barrett Trucking for $105,000. The parties' agreement expressly stated that the settlement amount included the $54,747 in medical payments that Allstate had made to plaintiff up until that point. The claim against the other defendant went to trial and resulted in a $150,000 plaintiff's verdict.
Meanwhile, on March 20, 1997, Allstate had filed a request for intercompany arbitration with CNA. Stating that it was filing for arbitration at that time only to prevent the tolling of the statute of limitations, Allstate requested that the proceedings be deferred on the grounds that plaintiff had not reached a medical end result and was still receiving benefits. Eventually, an arbitration hearing was set for March 17, 1998, but was tentatively rescheduled, at Allstate's request, for March 20, 1999, "due to companion claims and/or suits pending." Apparently, Allstate sought an arbitration hearing following resolution of plaintiff's lawsuits against the tortfeasors. No hearing ever took place, however.
On April 16, 1998, plaintiff filed the instant declaratory judgment action, requesting that the superior court reduce Allstate's subrogation recovery by a proportionate share of the one-third contingency fee and other expenses she incurred in settling the Barrett Trucking claim. The parties filed cross-motions for summary judgment. The superior court granted plaintiff's motion and denied Allstate's motion, ruling that under the "common fund" doctrine Allstate was obligated to pay a proportionate share of the attorney's fees that plaintiff incurred in creating a common fund from which Allstate *780 benefitted without actively pursuing its subrogation interest independently. On appeal, Allstate argues that (1) Vermont does not recognize the common-fund doctrine; (2) the doctrine does not apply when the insurer elects to arbitrate its subrogation claim; (3) the superior court inappropriately resolved inferences in plaintiff's favor; and (4) the court did not give Allstate an opportunity to develop a factual record that could establish exceptions to the common fund doctrine.
"In reviewing a grant of summary judgment, we apply the same standard as the trial court." City of St. Albans v. Northwest Regional Planning Comm'n, 167 Vt. 466, 469, 708 A.2d 194, 196 (1998). Summary judgment is appropriate when the record demonstrates that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Viles v. Vermont State Colleges, 168 Vt. 459, 461, 724 A.2d 448, 450 (1998).
I.
Allstate first argues that Vermont has declined to recognize the common fund doctrine as an exception to the American Rule requiring each party to be responsible for its own attorney's fees, see Robes v. Town of Hartford, 161 Vt. 187, 198-99, 636 A.2d 342, 349-50 (1993), and that applying the doctrine in cases such as this would be inappropriate because Vermont statutory law entitles insurers to collect the full amount of their subrogation interest. See 8 V.S.A. § 4203(4).
These arguments are not persuasive. Under the American Rule, which has been consistently applied in Vermont, "attorney's fees are ordinarily unrecoverable in the absence of statutory authority or the parties' contractual provision concerning this expense." Robes, 161 Vt. at 198, 636 A.2d at 349. One of the judicially created equitable exceptions to this rule is the common fund doctrine, which permits a prevailing partywhose lawsuit has created a fund that is intended to benefit not only that party but others as wellto recover, either from the fund itself or directly from those others enjoying the benefit, a proportional share of the attorney's fees and costs incurred in the lawsuit. See id. at 198-99, 636 A.2d at 349-50; Savoie v. Merchants Bank, 84 F.3d 52, 56 (2d Cir. 1996). This Court declined to recognize the doctrine in Robes because the defendants had prevailed on all counts, and the plaintiffs had not recovered any damages; thus, there was no "common fund" from which to award attorney's fees. See 161 Vt. at 199, 636 A.2d at 350; see also Savoie, 84 F.3d at 56 ("common fund doctrine does not apply ... when fees are sought from the assets of the losing party"). We did not hold, however, as Allstate suggests, that the common fund doctrine could never be applied, regardless of the circumstances, as an equitable exception to the American Rule on attorney's fees. To the contrary, we indicated that the doctrine had been generally accepted by other jurisdictions that applied the American Rule. See Robes, 161 Vt. at 198, 636 A.2d at 349.
Indeed, Allstate does not cite a single jurisdiction in which a court has declared that the common fund doctrine can never be applied as an exception to the American Rule, regardless of the circumstances of the particular case being considered. With respect to application of the doctrine in the context of insurance subrogation cases such as the instant one, a leading commentator has observed:
When an insurance company lays claim to subrogation proceeds, obviously someone has to collect them, and attorneys rarely work for free. It is grossly inequitable to expect an insured, or other claimant, in the process of protecting his own interest, to protect those of the company as well and still pay counsel for his labors out of his own pocket, or out of the proceeds of the remaining funds. And this is precisely the view taken by the overwhelming majority of decisions, in that a proportionate share of fees and *781 expenses must be paid by the insurer or may be withheld from its share.
8A J. Appleman & J. Appleman, Insurance Law and Practice § 4903.85, at 335 (1981); see 16 R. Anderson & M. Rhodes, Couch Cyclopedia of Insurance Law § 61:47, at 131 (2d ed. 1983) ("Where the insured prosecutes the suit against the tortfeasor, thereby incurring legal expenses and court costs, the insured is generally entitled to recover such expenses prior to any recovery going to the insurer, or the insurer must at least pay its proportionate share of the expenses."); see also Phillips v. State Farm Mut. Auto. Ins. Co., 73 F.3d 1535, 1539 n. 2 (10th Cir.1996) (citing state courts that require subrogees to pay share of attorney's fees incurred by their insureds in prosecuting actions against third-party tortfeasors); Principal Cas. Ins. Co. v. Norwood, 463 N.W.2d 66, 68 (Iowa 1990) (prevailing law in other jurisdictions is that insured may retain costs and expenses from fund recovered from wrongdoer and benefitting insurer); Hedgebeth v. Medford, 74 N.J. 360, 378 A.2d 226, 229-30 (1977) (rule that right of subrogation carries with it equitable requirement of paying proportionate share of attorney's fees "is now clearly accepted"); Amica Mut. Ins. Co. v. Maloney, 120 N.M. 523, 903 P.2d 834, 839 (1995) (joining majority of jurisdictions that have extended common fund doctrine to insurance cases where insured incurs attorney's fees in obtaining judgment or reaching settlement that benefits subrogated insurer); Bowen v. American Family Ins. Group, 504 N.W.2d 604, 606 (S.D.1993) (joining "nearly unanimously adopted" rule that insurer's subrogation interest is subject to proportionate share of attorney's fees incurred by insured in securing settlement against third-party tortfeasor).
We agree with the reasoning of these courts and commentators, and thus hold that, under appropriate circumstances, the common fund doctrine may be applied to require an insurer to pay a proportionate share of the attorney's fees incurred by its insured in obtaining a judgment or settlement that satisfies the insurer's subrogated interest. See York Ins. Group of Maine v. Van Hall, 704 A.2d 366, 369 (Me.1997) ("common fund doctrine is available in Maine in cases where an insured incurs attorney fees and expenses in recovering a judgment or settlement that benefits a subrogated insurer"). Nothing in the language of 8 V.S.A. § 4203(4) militates against this holding. Section 4203(4) provides that an insurer shall be subrogated to its insured against any party with respect to payment of loss or expense under the applicable policy "to the amount of such payment," and the insured shall cooperate with the insurer to secure its right of subrogation. The phrase "to the amount of such payment" merely sets a limit on the extent of the right of subrogation and is not intended to preclude application of the common fund doctrine in insurance cases involving subrogation rights. Cf. Van Hall, 704 A.2d at 369 (phrase "to the extent of our payment" contained in insurance contract "does not clearly address the question whether the insured is permitted to retain a prorated portion of the cost of recovery from its obligation under the contract's subrogation clause").
We emphasize, however, that the common fund doctrine should be applied only after the trial court determines that it is equitable to do so because of the facts of the particular case at hand. See Travelers Ins. Co. v. Williams, 541 S.W.2d 587, 590 (Tenn.1976) (doubting advisability of attempting to devise single rule to govern all cases concerning application of common fund doctrine). Before applying the doctrine, the court should examine all of the circumstances of the case, including the nature and extent of the subrogee's activities. See Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman v. State Farm Ins. Co., 100 Ill.App.3d 93, 55 Ill. Dec. 340, 426 N.E.2d 315, 319-20 (1981).
II.
Anticipating this holding, Allstate contends that the doctrine should not apply *782 when, as here, the insurer has independently and actively pursued its subrogation claim against the tortfeasor's insurer through arbitration proceedings. Otherwise, according to Allstate, the policies served by allowing insurers to resolve their disputes with other carriers informally through arbitration would be undermined. Allstate emphasizes that it (1) repeatedly notified plaintiff's attorney that it intended to pursue its subrogation claim directly against the tortfeasor's insurer through arbitration proceedings, (2) expressly rejected the attorney's offer to represent it in settling the Barrett Trucking case, and (3) initiated arbitration proceedings against CNA to perfect its claim. Allstate acknowledges that no arbitration proceedings were held before plaintiff's attorney settled the Barrett Trucking case, but contends that those proceedings were delayed only because plaintiff had not reached a medical end result and was continuing to receive benefits from Allstate. Allstate asserts that, under these circumstances, plaintiff's attorney acted as a "volunteer" to the extent that he rendered any services beneficial to Allstate, and thus plaintiff was not entitled to have Allstate pay a proportionate share of her attorney's fees.
Again, these arguments are not persuasive. Without question, Allstate expressly declined to take part in litigating or settling plaintiff's lawsuit against Barrett Trucking, and indeed eventually submitted a request to have its subrogation claim against CNA determined through intercompany arbitration proceedings. Nevertheless, the undisputed evidence demonstrates that Allstate intended to, and in fact did, await the results of the Barrett Trucking lawsuit, and thus took advantage of the efforts of plaintiff's attorney, before following through with its subrogation claim against CNA. From the outset of the Barrett Trucking case, Allstate advised both plaintiff and CNA of their responsibility to protect its subrogation claim. See 8 V.S.A. § 4203(4) (insured shall cooperate with insurer to secure its subrogation rights); cf. Bowen, 504 N.W.2d at 606 (neither insurance contract nor subrogation agreement advised insured that, in fulfilling his duty to protect insurer's subrogation interest, he would be responsible for all attorney's fees incurred in obtaining settlement with third party's insurer). Further, in its May 1995 letter to CNA, Allstate acknowledged its assumption that CNA had not paid the subrogation claim because of plaintiff's pending lawsuit, and then emphasized that it expected to be paid directly "at the time of any settlement of [plaintiff's] claim."
Allstate contends that it was merely waiting for a medical end result, and that the efforts of plaintiff's attorney were not needed for it to secure its subrogation claim. The undisputed evidence, however, demonstrates otherwise. Plaintiff had been in two, possibly three, other automobile accidents within months of the March 22, 1994 accident. Barrett Trucking vigorously defended against plaintiff's lawsuit, raising significant disputes concerning causation, apportionment of damages, and the reasonableness and necessity of the medical charges. Several experts were retained and deposed, and discovery continued over a two-year period. Allstate's assertion that it did all it could to secure its subrogation claim independently rings hollow when contrasted with the efforts of plaintiff's attorney in filing suit, engaging in discovery, and pursuing settlement through mediation to obtain a common fund that secured Allstate's subrogation claim. Moreover, notwithstanding its bare statement that liability was conceded, Allstate plainly benefitted from the efforts of plaintiff's attorney in securing its subrogation claim. Cf. Sobczak v. Whitten, 75 Ill.App.3d 208, 30 Ill. Dec. 733, 393 N.E.2d 1080, 1083 (1979) (considering that negotiations were required before insured could obtain settlement in suit against tortfeasor, record did not support insurer's argument that liability was clear, payment was certain, and settlement was foregone conclusion).
*783 As noted, the common fund doctrine is grounded on equitable principles and applied on a case-by-case basis. See Norwood, 463 N.W.2d at 68 (equitable principles underlie rule that right to subrogation carries with it duty to pay proportionate share of attorney's fees); Hedgebeth, 378 A.2d at 230 (common fund doctrine is based on equitable principle that insurer should not be entitled to enjoy fruits of insured's judgment against tortfeasor without contributing in any way to costs or burdens of litigating that claim). In cases where the insurer demonstrates that it "actively participated in or substantially contributed to," recovery of the common fund, "the trial court may reduce or waive the insurer's proportionate contribution" to attorney's fees and court costs incurred in securing the fund. Maloney, 903 P.2d at 840. To claim active participation in a settlement, the insurer must demonstrate that it participated in settlement negotiations and contributed to obtaining the award. See id.
Allstate acknowledges not having participated in the instant settlement, but claims that it had a right to secure its subrogation claim independently through intercompany arbitration proceedings. That may be so, but rather than do so, Allstate sat back and awaited a settlement or judgment in the Barrett Trucking lawsuit before acting on its claim. Indeed, the arbitration proceedings were deferred, at Allstate's request, "due to companion claims and/or suits pending." Under the particular circumstances of this case, equity demands application of the common fund doctrine. See id. at 837-38, 840 (common fund doctrine applies in cases where, other than writing letters informing tortfeasors' insurers of subrogation interest and notifying insureds of intent to pursue subrogation rights independently, subrogated insurers sat back and waited for insureds to reach settlement with tortfeasors); cf. Van Hall, 704 A.2d at 369 n. 5 (insurer's letter informing insured that it intended to pursue subrogation claim independently did not insulate insurer from contributing to attorney's fees incurred by insured in protecting insurer's claim; insurer cannot recover its subrogation interest from insured's settlement, and then deny responsibility for contributing to costs of that recovery); Hedgebeth, 378 A.2d at 230 (fact that insurer might have brought independent action to obtain reimbursement for amounts paid under insurance policy does not militate against rule that right of subrogation carries with it equitable requirement of paying proportionate share of attorney's fees).
The cases cited by Allstate in support of its position are distinguishable. See CNA Ins. Cos. v. Johnson Galleries, 639 So. 2d 1355, 1359 (Ala.1994) (refusing to apply common fund doctrine because attorneys for insured "actively and consistently" sought to prevent subrogee from obtaining any part of settlement); Cockman v. State Farm Auto. Ins. Co., 313 Ark. 340, 854 S.W.2d 343, 345 (1993) (refusing to apply common fund doctrine because arbitration agreement required insurers to forego litigation, evidence clearly demonstrated that insurer had not refused to pursue its independent subrogation claim, and insured warranted in subrogation receipt that she would make no settlement or release regarding subrogated rights without insurer's written consent); Osborne v. State Farm Mut. Auto. Ins. Co., 923 P.2d 304, 305-06 (Colo.Ct.App.1996) (refusing to apply common fund doctrine because insured did not give insurer opportunity to participate in settlement negotiations, insurer expressed intent to pursue its claim independently in arbitration proceedings, and insurer expressed no intention to share in funds generated by insured's suit); Dunn, 55 Ill. Dec. 340, 426 N.E.2d at 318 (refusing to apply common fund doctrine because no "fund" was created where tortfeasor's insurer admitted liability and agreed to pay subrogation claim irrespective of insured's personal injury lawsuit, tortfeasor's insurer began making payments on subrogation claim before insured *784 sued tortfeasor, settlement negotiations did not concern subrogated interests, and record demonstrated that subrogee expended substantial energy in pursuing its claim directly from tortfeasor's insurer); Williams, 541 S.W.2d at 590-91 (refusing to apply common fund doctrine because there was no express, implied, or quasi contractual relation between attorney and insurer, and thus attorney acted as volunteer).
III.
Allstate argues, however, that, in granting summary judgment to plaintiff, the superior court improperly resolved inferences in plaintiff's favor. See Lopez v. Concord Gen. Mut. Ins. Group, 155 Vt. 320, 324, 583 A.2d 602, 605 (1990) (party opposing motion for summary judgment must be given benefit of all reasonable doubts and inferences in determining whether genuine issue of material fact exists). Specifically, Allstate contends that the trial court necessarily resolved doubts in plaintiff's favor by concluding that Allstate was not actively pursing its subrogation claim, despite undisputed evidence that (1) Allstate was a party to an arbitration agreement; (2) Allstate's practice was to protect its own subrogation interests through arbitration; (3) Allstate notified all parties that it would protect its own interests; and (4) Allstate commenced arbitration proceedings.
For the reasons discussed in Part II of this opinion, we find no merit to this argument. The facts cited by Allstate are, for the most part, undisputed but not material to the trial court's determination that in this particular case Allstate did not actively pursue an independent action directly against CNA to secure its subrogation claim. The trial court concluded, and we agree, that the undisputed facts demonstrate that Allstate intended to, and in fact did, await the settlement in the Barrett Trucking litigation before collecting its subrogated interest.
IV.
Finally, Allstate argues that even if this Court concludes that the common fund doctrine was properly applied in this case, we must remand the matter to permit Allstate to develop a factual record to determine if other exceptions to the doctrine may apply. Specifically, Allstate asserts its right to engage in additional discovery (1) to show that it actively participated to protect its own interest; (2) to determine whether plaintiff and her attorney understood that the attorney represented only her interests, and not those of Allstate; and (3) to explore whether the attorney's fees incurred by plaintiff were reasonable.
Once again, we find no merit to this argument. Allstate had the opportunity to avoid summary judgment by positing material facts in dispute. Indeed, the parties filed cross-motions for summary judgment that relied on affidavits supporting their respective positions. Nevertheless, Allstate was unable to point to disputed material facts precluding summary judgment. Nor did Allstate challenge before the superior court the reasonableness of the one-third contingency-fee arrangement between plaintiff and her attorney in the Barrett Trucking case. Although it had access to the fee agreement and voluminous medical records, depositions, pleadings, discovery materials, and other documents related to the Barrett Trucking case, Allstate provided no reason to suggest that the contingency fee was excessive or unreasonable. See Maloney, 903 P.2d at 841 (in determining whether attorney's fees apportioned to subrogated insurer are equitable, court must consider whether fee agreement was consistent with customary fee arrangements, keeping in mind that attorney's efforts in reaching entire settlement, not just in protecting subrogated amount, must be considered; in this case, insurers neither presented evidence that contingency fees were unreasonable in relation to amount of work done to achieve final settlement, nor suggested that contingency fee agreement was inconsistent *785 with standard industry practice in such cases). Accordingly, we see no reason to remand the case to reopen these matters.
V.
The material facts in this case are not in dispute. Allstate urged plaintiff's attorney and CNA to protect its subrogation interest in the Barrett Trucking litigation, which would resolve any disputes concerning the extent of the tortfeasor's liability. Allstate's presettlement conduct, which Allstate characterizes as actively pursuing its subrogation interest independent of plaintiff's lawsuit, was described by the trial court as Allstate "sitting on its subrogation tuffet." Whatever the merits of Allstate's objection to the trial court's colorful phraseology, Allstate plainly sought to benefit from the services of plaintiff's attorney in securing its subrogation claim without paying for those services. Given the undisputed material facts, the law does not allow Allstate to do so.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589643/ | 280 S.W.3d 647 (2009)
In the ESTATE OF Wallace G. JONES, Deceased.
State of Missouri, Department of Social Services, MO HealthNet Division, Respondent,
v.
Violet J. Knight and Tommy Jones, Appellants.
No. WD 69310.
Missouri Court of Appeals, Western District.
January 13, 2009.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2009.
Application for Transfer Denied May 5, 2009.
*649 Amany Hacking, St. Louis, MO, for Appellants.
Paul Harper, Jefferson City, MO, for Respondent.
Before HAROLD L. LOWENSTEIN, P.J., PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
VICTOR C. HOWARD, Judge.
Violet J. Knight and Tommy Jones appeal the judgment of the probate court allowing a petition brought by the State of Missouri, Department of Social Services, MO HealthNet Division ("State") for an accounting under section 461.300[1] to recover Medicaid benefits provided on behalf of Wallace G. Jones ("Decedent"). On appeal, Knight and Jones claim the probate court erred in allowing the petition for accounting because: (1) the State has not amended the definition of "estate" in the Medicaid estate recovery statutes, sections 473.398 and 473.399,[2] to include nonprobate transfers, (2) the State is not a creditor under section 461.300, (3) even if the State is a creditor, it was required to amend its Medicaid State Plan or promulgate a rule regarding its interpretation of section 461.300, and (4) the State failed to notify Decedent that it would pursue nonprobate assets outside the definition of "estate" found in section 473.398. Knight and Jones's four points are denied, and the judgment of the probate court is affirmed.
Factual and Procedural Background
This appeal pertains to a petition brought by the State for an accounting under section 461.300 of a nonprobate asset transferred by Decedent to his children, Violet J. Knight and Tommy Jones. Decedent, who was a resident of Boone County, Missouri, died on November 9, 2003, at the age of 92. Upon Decedent's death, his home passed to Knight and Jones via a beneficiary deed Decedent had filed with the Boone County Recorder of Deeds on January 7, 2000. Because Decedent's home was his only asset, no estate was opened.
During his lifetime, Decedent received Medicaid nursing home benefits from the State. The application for benefits signed by Knight on behalf of Decedent stated, "I/We UNDERSTAND that the State of Missouri may file a claim against my/our estate to recover any assistance received." In order to recover the payments it made on behalf of Decedent, the State filed an Application of Interested Party for an Order to Require Supervised Administration with the probate court on October 19, 2004, requesting that a probate estate be opened. At that time, the State claimed that Decedent's estate owed the State $17,056.75 for Medicaid benefits it provided on behalf of Decedent. Because the probate court found there were no assets in Decedent's estate subject to administration, it denied the State's application.
The State then filed a writ of mandamus with this court, which ruled that an estate had to be opened prior to a determination of whether there were assets subject to administration. Letters of Administration for supervised administration were issued to Knight on October 4, 2005. With the consent of Jones, Letters of Administration *650 were re-issued on October 11, 2005, allowing independent administration, and naming Knight as personal representative of Decedent's estate. On October 5, 2005, the State sent a letter to Knight's attorney requesting that she initiate an action for accounting under section 461.300. After Knight refused to initiate the action for accounting, the State filed a petition for accounting with the probate court on November 10, 2005, seeking recovery of Medicaid benefits paid on behalf of Decedent in the amount of $22,226.24. The parties later stipulated that the value of the property at the time of transfer was $24,000.
On December 17, 2007, the probate court entered its judgment allowing the State's petition for accounting and its claim in the amount of $22,226.24, stating that Knight and Jones were liable to the estate. Knight and Jones filed this timely appeal.
Standard of Review
Generally, the appellate court will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). However, because statutory construction is a question of law, the appellate court's review is de novo, and it gives no deference to the trial court's determination of law. Mo. Highway & Transp. Comm'n v. Merritt, 204 S.W.3d 278, 281 (Mo.App. E.D.2006).
Point I
In their first point on appeal, Knight and Jones contend that the probate court erred in allowing the State's claim because there were no assets in Decedent's estate in that his only asset, his home, passed to Knight and Jones via a beneficiary deed. Knight and Jones further argue that because the State has not amended the definition of "estate" in section 473.398.1 to include nonprobate transfers, the State cannot recover its Medicaid benefits from a nonprobate transfer. Because Knight and Jones's first point on appeal deals with the structure of both the federal Medicaid Act and Missouri's Medicaid estate recovery program, we will first describe the interaction between these programs.
Medicaid is a cooperative federal-state program that "seeks to provide medical assistance to low-income individuals who are unable to meet the costs of their medical care." Hutchings ex rel. Hutchings v. Roling, 193 S.W.3d 334, 340 (Mo.App. E.D.2006). If a state chooses to participate in the Medicaid program, the federal government will supply financial assistance to aid that state in providing health care. Id. Once a state chooses to participate in the Medicaid program, "the state must comply with all federal statutory and regulatory requirements." Id. at 340-41. Missouri has chosen to participate in the Medicaid program, codifying its state program at section 208.001, RSMo Cum. Supp. 2008, et seq. The MO HealthNet Division within the Department of Social Services is authorized to promulgate rules and implement the provisions of Missouri's Medicaid program under section 208.001.3.
In compliance with federal law, Missouri has established an estate recovery program in order to recover the value of Medicaid benefits paid by the State from the estate of a deceased Medicaid recipient. See 42 U.S.C. § 1396p(b);[3]*651 § 473.398-.399.[4] According to section 1396p(b)(4)(A), a state's definition of "estate" must include at a minimum "all real and personal property and other assets included within the individual's estate, as defined for purposes of State probate law." Additionally, a state's definition of "estate" "may include, at the option of the State. . . any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement." § 1396p(b)(4)(B). The State Medicaid Manual, provided by Centers for Medicare & Medicaid Services (CMS), instructs the state to "Specify in your State plan the definition of estate that will apply." State Medicaid Manual, § 3810 B.
Missouri's probate code defines "estate" as "the real and personal property of the decedent or ward, as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions and additions thereto and substitutions therefor, and diminished by any decreases and distributions therefrom." § 472.010(11), RSMo 2007. The definition of "estate" found in section 472.010(11) is also used in Missouri's Medicaid State Plan. Mo. State Plan, § 4.17, Attach. 4.17-A-3. Missouri's State Plan further notes that "Missouri's Medicaid estate recovery program is authorized by State law in the probate code. The State must pursue its claims against Medicaid decedent estates following the processes established by statute." Mo. State Plan, § 4.17, Attach. 4.17-A-5.
It is clear that Decedent's beneficiary deed was effective to transfer his home to Knight and Jones and that this nonprobate transfer disposed of Decedent's only asset. See §§ 461.025, 461.005(2), (7), RSMo 2007. Accordingly, Knight and Jones argue that because Missouri has not chosen to use the expanded definition of "estate," the State has no authority to make a claim against the nonprobate transfer. In its brief, the State admits that Missouri has not expanded the definition of "estate" to include nonprobate transfers and that the definition of "estate" in section 472.010(11) applies to this action, "as it does for all other creditors under § 461.300."
Additionally, Knight and Jones rely on two recent decisions from Missouri appellate courts, arguing that these decisions hold that the State cannot recover against certain property because it does not fall within the section 472.010(11) definition of "estate." See In re Estate of Bruce, 260 S.W.3d 398 (Mo.App. W.D.2008); In re Estate of Shuh, 248 S.W.3d 82 (Mo.App. E.D.2008). In the context of spousal recovery under the Medicaid Act, Bruce and Shuh both held that Missouri has not adopted the broader definition of "estate" allowed by section 1396p(b)(4)(B). See Bruce, 260 S.W.3d at 403; Shuh, 248 S.W.3d at 89. However, each of these cases has additional analysis pertaining to whether the State can recover Medicaid benefits under section 461.300, which is what the State seeks to do in this case. Therefore, the relevant issue is not whether Missouri has expanded its definition of "estate" for estate recovery purposes, but whether Missouri's estate recovery statutes allow the State to proceed under section *652 461.300. This issue is addressed by Knight and Jones in their second point.
Point II
In their second point on appeal, Knight and Jones contend that the probate court erred in allowing the State's claim because the State is not a creditor within the meaning of section 461.300 in that the State's claim did not arise until after the death of Decedent. It is also in this point that Knight and Jones argue that section 473.398 provides no authority for the State to recover under section 461.300.
Section 461.300.1 provides: "Each recipient of a recoverable transfer of a decedent's property shall be liable to account for a pro rata share of the value of all such property received, to the extent necessary to discharge . . . claims remaining unpaid after application of the decedent's estate. . . ." The obligation of the recipient may be enforced by an action for accounting brought by a qualified claimant. § 461.300.2. A "qualified claimant" includes a "creditor," which is in turn defined as "any person to whom the decedent is liable, which liability survives whether arising in contract, tort, or otherwise, and any person to whom the decedent's estate is liable for funeral expenses and the reasonable cost of a tombstone." § 461.300.10(1), (3). Finally, a "recoverable transfer" is defined in part as "a nonprobate transfer of a decedent's property under sections 461.003 to 461.081." § 461.300.10(4).
Knight and Jones argue that the State's avenues of recovery are limited by Missouri's estate recovery statute, which states "The debt shall be collected as provided by the probate code of Missouri, chapters 472, 473, 474, and 475, RSMo." § 473.398.1. Knight and Jones assert that section 461.300 is not part of Missouri's probate code and that because section 461.300 is not specifically listed in section 473.398, the estate recovery statute, it follows that the State has no authority to recover its Medicaid payments under section 461.300.
Missouri's other appellate courts have both allowed petitions for accounting brought by the State under section 461.300. See In re Estate of Hayden, 258 S.W.3d 505 (Mo.App. E.D.2008); In re Estate of Macormic, 244 S.W.3d 254 (Mo. App. S.D.2008). While analyzing whether section 461.300 is substantive or procedural in nature, the court in Hayden found that section 461.300 "is part of the machinery for the collection of debts incurred after the passage of Section 473.398," thus implicitly acknowledging that section 473.398 allows for an estate recovery claim to be collected through a section 461.300 accounting action. Hayden, 258 S.W.3d at 514.
In evaluating whether the State had standing to file a petition for discovery of assets, the court in Macormic noted that "Section 473.398.1 gives the State the right to petition for the debt it is owed `from the estate of the decedent.' Under section 473.398.1, then, the State has an interest in any property which could possibly be part of Decedent's estate. . . ." Macormic, 244 S.W.3d at 259. Because beneficiary deeds are governed by section 461.025, Decedent's home is a recoverable transfer pursuant to section 461.300.[5] Under the analysis set forth in Macormic, the State has an interest in the home because it could possibly be part of Decedent's estate if a successful accounting action is brought under section 461.300. Furthermore, because the court in Macormic ultimately *653 concluded that the State was entitled to file a petition for accounting under 461.300, the court recognized that a section 461.300 proceeding was a proper method for recovering from a Medicaid recipient's estate. See Macormic, 244 S.W.3d at 260.
Similarly, the cases cited by Knight and Jones do not entirely support the proposition that the State cannot recover under section 461.300 simply because Missouri has not adopted an expanded definition of "estate." See In re Estate of Bruce, 260 S.W.3d 398; In re Estate of Shuh, 248 S.W.3d 82. In Bruce, the court did not hold that the State could not recover under section 461.300 because the property at issue did not fall under Missouri's definition of "estate," but instead held that the State could not recover under section 461.300 because property owned as tenants by the entirety was not a recoverable transfer. 260 S.W.3d at 403. Correspondingly, the court in Shuh did not wholly prohibit the State from bringing an action under section 461.300, but instead held that, due to specific limitations within the statute, section 461.300 did not expand the definition of "estate" to include all nonprobate transfers. 248 S.W.3d at 89. Nevertheless, any hesitation by the court in Shuh to allow a proceeding under section 461.300 has been eradicated, as evidenced by its allowance of a petition for accounting by the State in Hayden. See Hayden, 258 S.W.3d 505.
In addition to Missouri appellate court cases that have allowed the State to petition for an accounting, the state legislature itself has deemed a section 461.300 proceeding to be a proceeding under the probate code. § 461.300.7.[6] Various provisions of section 461.300 also provide that an action for accounting is filed in the name of the estate, the action may be filed in probate court, the sum recovered is a monetary judgment in the name of the estate, and any monetary judgment is to be administered by the personal representative of the decedent's estate. See § 461.300.2, .6, .7. Knight and Jones's argument focuses on the fact that section 473.398 states that the debt created by the extension of Medicaid benefits "shall be collected as provided by the probate code of Missouri, chapters 472, 473, 474, and 475, RSMo." Although Missouri's probate code consists of the chapters listed, and chapter 461 is not listed in section 473.398, the state legislature has obviously chosen to deem section 461.300 accounting actions as proceedings under the probate code. The several other aspects of section 461.300, listed above, also tend to show that the legislature characterizes section 461.300 accounting actions as proceedings under the probate code. Because the legislature indicated that section 461.300 actions should be treated as proceedings under the probate code and expressed no intent that such actions not be treated as proceedings under the probate code for the purposes of recovering Medicaid benefits, the language of section 473.398 does not preclude the use of section 461.300 to recover Medicaid benefits from Decedent's estate.
Even if section 473.398 does not preclude an accounting action under section 461.300, Knight and Jones assert that the State still cannot recover under section 461.300 because it is not a "creditor." Their argument centers on the language in section 461.300.10(1) defining a "creditor" as "any person to whom the decedent is liable, which liability survives whether arising in contract, tort, or otherwise," and the language in section 473.398, which provides that upon the death of a person who has received Medicaid benefits, there shall be a debt due the state from the decedent's *654 estate. Knight and Jones claim that section 473.398 only provides for the creation of a debt after the decedent's death, and that, therefore, the State cannot be a person to whom the decedent is liable during his lifetime, which liability survives.
As discussed earlier, the Eastern and Southern District appellate courts have already held that the State has standing as a creditor to bring an action for accounting under section 461.300 to recover debts from the estates of deceased Medicaid recipients. See In re Estate of Hayden, 258 S.W.3d 505 (Mo.App. E.D.2008); In re Estate of Macormic, 244 S.W.3d 254 (Mo. App. S.D.2008). Regarding the debt due from the deceased Medicaid recipient's estate, the Southern District held that "Such a debt necessarily survives the death of [a][d]ecedent in that section 473.398 specifically states it can be collected from the estate of [a][d]ecedent." Macormic, 244 S.W.3d at 260. In Hayden, the appellant did not argue that the State was not a creditor within the meaning of section 461.300, and, therefore, the Eastern District affirmed the judgment of the probate court allowing an action for accounting under section 461.300 without discussing whether a section 461.300 accounting action is a proper method for recovering Medicaid benefits from a deceased recipient's estate. 258 S.W.3d 505.
In addition to Missouri appellate court cases, cases from other states dealing with estate recovery characterize the debt as one created during the lifetime of the decedent. See, e.g., Estate of Wood v. Ark. Dep't of Human Servs., 319 Ark. 697, 894 S.W.2d 573, 576 (1995) (noting that the relationship created after the enactment of the estate recovery statute "was as if [the recipient] had a loan from [the State] to be repaid from the assets of her estate"); In re Estate of Burns, 131 Wash.2d 104, 928 P.2d 1094, 1099 (1997) (ruling that "The precipitating event is, therefore, the receipt of the benefits giving rise to the contingent indebtedness, and not the creation of the decedent's estate"); In re Estate of Hooey, 521 N.W.2d 85, 87 (N.D. 1994) (finding that "Although the [State]'s ability to enforce the claim was tolled until [the recipient]'s death, the obligation [to repay] was incurred by [the recipient] during her lifetime"); In re Estate of Reimers, 16 Neb.App. 610, 746 N.W.2d 724, 728 (2008) (stating that "While the debt arising under [the estate recovery] statute accrues during the recipient's lifetime, it is held in abeyance for payment until the recipient's death.").
Finally, it is likely that the Missouri Supreme Court would determine that the State is a "creditor" within the meaning of section 461.300 based on its interpretation of the term "claim" in the context of Medicaid claims filed against a deceased recipient's estate. See In re Estate of Thomas, 743 S.W.2d 74 (Mo. banc 1988). In interpreting statutes, "it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed, even though the statutes are found in different chapters and were enacted at different times." Lane v. Lensmeyer, 158 S.W.3d 218, 226 (Mo. banc 2005) (internal quotations omitted).
In Thomas, the Court dealt with a claim by the Missouri Department of Social Services for the reimbursement from a decedent's estate of medical payments made on behalf of the decedent. 743 S.W.2d at 75. In holding that the State's claim fell within the exemption for a claim by a taxing authority, the Court also concluded that an estate's liability under section 473.398 "is a `claim' of the sort contemplated in probate which falls within the scope of sec. 472.010(3), RSMo 1986, defining `claims' as `liabilities of the decedent which survive whether arising in contract, tort or otherwise.'" *655 Id. at 77 (emphasis omitted). This language is still present in the current version of section 472.010 and is very similar to the language used to define a "creditor" in section 461.300.10(1). Because the language used is similar and both statutes involve definitions regarding the liability of a decedent, it is probable that the Missouri Supreme Court would interpret "creditor" much like it interpreted the term "claim" and would find that the State is a creditor for purposes of section 461.300.
Therefore, because a section 461.300 petition for accounting is a proceeding under Missouri's probate code and because the State qualifies as a "creditor" under section 461.300.10(1), the State may utilize section 461.300 to bring an action for accounting in the context of Medicaid estate recovery. Point two is denied.
Point III
In their third point on appeal, Knight and Jones contend that the probate court erred in allowing the State's claim because even if the State is a creditor under section 461.300, the State failed to follow proper procedure when it did not amend the Missouri Medicaid State Plan and promulgate a rule.
A State Plan must be amended "whenever necessary to reflect . . . [a] material change in any phase of State law, organization, policy or State agency operation." 45 C.F.R. § 205.5. Knight and Jones argue that the State's interpretation of section 461.300 should have been promulgated as a rule in accordance with section 536.010(6), RSMo 2008.[7] "Any agency announcement of policy or interpretation of law that has future effect and acts on unnamed and unspecified facts is a `rule.'" Dep't of Soc. Servs., Div. of Med. Servs. v. Little Hills Healthcare, L.L.C., 236 S.W.3d 637, 642 (Mo. banc 2007) (citing NME Hosps., Inc. v. Dep't of Soc. Servs., 850 S.W.2d 71, 74 (Mo. banc 1993)). Knight and Jones argue that the State's attempt to recover against a nonprobate transfer comes within this definition of a rule.
Knight and Jones's contentions that the State Plan should have been amended and that a rule should have been promulgated are based on their assertion that the State's use of section 461.300 constitutes an expansion of the definition of "estate" for purposes of Medicaid estate recovery. This assertion is incorrect. Because our judgment that the State may recover under section 461.300 is founded on the definition of "estate" in section 472.010, no expanded definition of "estate" is necessary and, therefore, the State need not amend the State Plan or promulgate a rule.
A proceeding under section 461.300 is not an action to bring nonprobate assets into the probate estate, because the substance of section 461.300 "is a rule of liability, not of ownership." Cook v. Barnard, 100 S.W.3d 924, 927 (Mo.App. W.D.2003). Instead, a proceeding under section 461.300 allows the decedent's estate to recover the value of nonprobate assets when the assets already in the estate are insufficient to cover the claims of the decedent's creditors. Id. As discussed in the analysis of point two, the judgment recovered in a section 461.300 action for accounting is a monetary judgment for the value of the nonprobate asset, which becomes part of the decedent's estate as defined by section 472.010(11). This monetary judgment is then distributed by the personal representative, just as all other assets in the estate are distributed.
*656 Because the judgment recovered under a section 461.300 proceeding is an asset of the estate as defined by section 472.010(11), the definition of "estate" to which all creditors remain subject, no expanded definition of "estate" is necessary. Therefore, there has been no material change in Missouri's definition of "estate," and the State may proceed under section 461.300 without amending Missouri's Medicaid State Plan. Point three is denied.
Point IV
In their fourth point on appeal, Knight and Jones contend that the probate court erred in allowing the State's claim because the State failed to give Decedent sufficient notice of the State's estate recovery program in that the State did not inform Decedent that it would pursue assets outside Missouri's definition of a decedent's estate.
The State Medicaid Manual issued by CMS states, "You should provide notice to individuals at the time of application for Medicaid that explains the estate recovery program in your State." State Medicaid Manual, § 3810 G.1, Medicaid Estate Recoveries. In the application for Medicaid benefits that Knight signed on behalf of Decedent, there is a provision that states: "I/We UNDERSTAND that the State of Missouri may file a claim against my/our estate to recover any assistance received."
Again, Knight and Jones base their argument regarding lack of notice on the contention that the State is pursuing nonprobate assets. As discussed in point three, Knight and Jones's argument is flawed because the State's action under section 461.300 does not bring nonprobate assets into the estate but, rather, allows the State to recover the value of Medicaid benefits received by Decedent in the form of a monetary judgment from Decedent's estate. Furthermore, Missouri's estate recovery statutes give the State "an interest in any property which could possibly be part of Decedent's estate." Macormic, 244 S.W.3d at 259.
Under federal law, a state's definition of "estate" for Medicaid estate recovery purposes is drawn from that state's probate law. See 42 U.S.C. § 1396p(b)(4)(A). Pursuant to section 461.300, which the legislature considers to be part of the probate code, recipients of nonprobate transfers may be liable to the estate of a decedent when the decedent's estate is insufficient to satisfy the claims of the decedent's creditors. Section 461.300 makes it possible for the value of nonprobate transfers to become an asset of the "estate," as it is defined by section 472.010(11) for estate recovery purposes. Because it is possible for the value of nonprobate transfers to become an asset of the estate, the State has an interest in that property. Therefore, since the State has an interest in any property that may become part of the estate and section 461.300 allows for the value of nonprobate transfers to become a part of Decedent's estate, the notice provided by Missouri's Medicaid application is sufficient. Point four is denied.
Conclusion
As a creditor within the meaning of section 461.300, the State is entitled to bring a petition for accounting to recover the value of a nonprobate asset Decedent transferred to Knight and Jones. In addition, the State's utilization of section 461.300 does not necessitate an amendment to Missouri's Medicaid State Plan, and the State's Medicaid application gives sufficient notice of its estate recovery program. The judgment of the probate court is affirmed.
All concur.
NOTES
[1] All references to section 461.300 are to RSMo 2007.
[2] All references to sections 473.398 and 473.399 are to RSMo 2007.
[3] Specifically, section 1396p(b)(1)(B) provides: "In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual's estate, but only for medical assistance consisting of" certain enumerated services, such as "nursing facility services."
[4] Section 473.398 provides: "Upon the death of a person, who has [received Medicaid benefits], the total amount paid to the decedent or expended upon his behalf . . . shall be a debt due the state . . . from the estate of the decedent. The debt shall be collected as provided by the probate code of Missouri, chapters 472, 473, 474 and 475, RSMo."
[5] Recall that a recoverable transfer includes any nonprobate transfer under section 461.003 to 461.081. § 461.300.10(4).
[6] Section 461.300.7 provides: "Any proceeding under this section . . . shall be deemed to be proceedings . . . under the probate code that are subject to section 472.013, RSMo."
[7] Section 536.010(6) defines a "rule" as "each agency statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589693/ | 14 So.3d 242 (2009)
PHILLIPS
v.
McCOLLUM.
No. SC09-1149.
Supreme Court of Florida.
July 7, 2009.
Decision without published opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919213/ | 912 So.2d 426 (2005)
Roy LAMBERT, et al., Plaintiffs-Second Appellants
v.
STATE of Louisiana, et al., Defendants-Appellees
Bayou D'Arbonne Lake Watershed District, Defendant-First Appellant.
No. 40,170-CA.
Court of Appeal of Louisiana, Second Circuit.
September 30, 2005.
*428 Hodge O'Neal, III, Monroe, Daniel P. Parker, for Plaintiffs-2nd Appellants, Roy Lambert, Dennis Lambert, John Lambert & Kimberly Lambert Capps.
Richard A. Bailly, Baton Rouge, Laurel McDonald White, Louisiana Dept. of Justice, for Defendant-1st Appellant, Bayou D'Arbonne Lake Watershed.
John F. Frederickson, Assistant Attorney General, for Defendants-Appellees, State of Louisiana, DWLF, DOTD, & DNR.
L. Frederick Shroeder, II, for Defendant-Appellee, Union Parish Sheriff's Office.
Before BROWN, WILLIAMS, and MOORE, JJ.
BROWN, C.J.
Plaintiffs in this wrongful death/survivorship action are the children of Jimmy Lambert and Peggy Lambert, who drowned on February 19, 2001, shortly after launching their small fishing boat from what is known as the "high water boat ramp" adjacent to the Bayou D'Arbonne Lake Spillway/Dam.[1] The high water boat ramp is on the north side of Bayou D'Arbonne just below the spillway. The body of water on the downstream side of the dam is considered Bayou D'Arbonne, while the waters on the upstream side of the spillway are considered Lake D'Arbonne. The dam was placed across Bayou D'Arbonne, thus forming the reservoir known as Lake D'Arbonne.
The Lamberts entered the bayou using only their boat's trolling motor. The water began violently driving their boat westerly, apparently upstream, against the natural flow of the water. This "backwards" undercurrent was so strong that it easily overcame the trolling motor, driving the Lamberts' boat into the spillway and pinning it against the concrete wall of the dam. The water coming over the spillway was so powerful that it destroyed the boat, then tore the life jackets and clothing off the Lamberts, and they drowned.
The reason that the water carried the Lamberts upstream and against the natural current is inherent in the design of the spillway itself. Beneath the water on the *429 downstream side of the dam the concrete is designed to do two things. First, there are structures which cause turbulence in the water in order to dissipate the energy of the water coming over the spillway. Secondly, there is a lip design, which turns the natural current backwards towards the dam, the purpose of this being to avoid or lessen the effects of erosion on the downstream side of the spillway. Most of the time this design scheme presents no danger to small boats, and there is no reason not to get near the spillway wall. However, when the water level above the dam is far higher than the water level below the dam, which usually occurs after a big rain, the waters below the spillway become extremely dangerous. A backflow or "sucking, spinning vortex" is created which "causes things to get pulled into the backside of the dam." According to the Watershed District, the water below the spillway at the boat launch was visibly, obviously hazardous after such a rain. Furthermore, there were warning signs posted at both the high water boat ramp and across the spillway facing Bayou D'Arbonne.
Plaintiffs, the children of Jimmy and Peggy Lambert, filed the instant wrongful death and survival action against the following defendants:
(1) State of Louisiana, Department of Transportation and Development ("DOTD"), which designed and constructed the spillway and the closely adjacent boat ramp.
(2) State of Louisiana, Department of Wildlife & Fisheries ("DWF"), which has sole authority to control and regulate all aspects of boating in the area.
(3) State of Louisiana, Department of Natural Resources ("DNR"), which is responsible for management of the State's waters and encroachments of the beds and water bottoms of navigable waters.
(4) Bayou D'Arbonne Lake Watershed District ("Watershed District"), which has a statutory duty to manage and control the lake.
(5) Union Parish Police Jury, which has settled with plaintiffs and is no longer a party to the suit.
(6) the Sheriff of Union Parish, whose motion for summary judgment was granted and no appeal has been taken therefrom.
The three State defendants (hereinafter referred to collectively as "the State," and individually as the aforementioned acronyms), the Union Parish Police Jury, the Sheriff, and the Watershed District filed motions for summary judgment urging immunity based upon the recreational use statutes, La. R.S. 9:2791 and La. R.S. 9:2795. The trial court granted summary judgment in favor of the State and the Sheriff, but denied the motions filed by the Union Parish Police Jury and the Watershed District.[2]
The Watershed District has appealed, as have plaintiffs, and the State has answered the appeal filed by plaintiffs.
Discussion
Summary Judgment
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App. 2d Cir.08/21/96), 679 So.2d 477.
*430 Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(C)(2).
Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent's favor. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App. 2d Cir.04/03/02), 814 So.2d 124, writ denied, 02-1262 (La.08/30/02), 823 So.2d 952.
Immunity Under the Recreational Use Statutes
In determining whether a defendant is afforded immunity under the recreational use statutes, the Louisiana Supreme Court has established a three prong test. Each of the following questions needs to be answered affirmatively for immunity to apply. 1) Is the area where the injury occurred undeveloped, non-residential, and rural or semi-rural? 2) Was the injury the result of activities that can be pursued in the "true outdoors"? 3) Was the injury-causing instrumentality of the type that would normally be encounters in the "true outdoors"? Keelen v. Louisiana Department of Culture, Recreation, and Tourism, 463 So.2d 1287 (La.1985).
This test was legislatively amended in 1985 when La. R.S. 9:2795(B)(1)(c) was changed to add "caused by any defect in the land regardless of whether naturally occurring or manmade." Thus, the third prong of the test was removed. The legislature then effectively removed the first prong of this test in 2001 when it amended La. R.S. 9:2795 by adding the phrase "urban or rural" to section (A)(1) and the phrase "whether urban or rural" to section (E)(2)(a). However, it is important to note that this 2001 amendment was made after the incident that resulted in the Lamberts' deaths. Thus, at the time of the Lamberts' deaths, La. R.S. 9:2795 read in pertinent part:
(A) As used in this section:
(1) "Land" means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment attached to the realty.
(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) "Recreational purposes" includes but is not limited to any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, snowmobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.
(B) (1) Except for willful or malicious failure to warn against a dangerous *431 condition, use, structure, or activity, an owner of land, except an owner of commercial recreational development or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
c. Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
(E) (1) The limitation of liability provided in this Section shall apply to any lands or water bottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or water bottoms are used, and whether they are used for recreational or non-recreational purposes.
(2) a. The limitation of liability provided in this Section shall apply to any lands owned, leased, or managed as a public park by the state or any of its political subdivisions and which is used for recreational purposes.
d. The limitation of liability as extended to parks in the Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.
Plaintiffs argue that before immunity can be granted to any defendant, a factual determination must be made as to whether the area in question was undeveloped, non-residential, and rural or semi-rural. Tragically, in Bradshaw v. Department of Wildlife and Fisheries, et al., 616 So.2d 799 (La.App. 2d Cir.03/31/93), this court was presented with this very issue arising from identical facts occurring at the Bayou D'Arbonne Spillway. In Bradshaw this court ruled that a factual determination of whether the area is "undeveloped, non-residential, rural or semi-rural" was not necessary because "unlike the Keelen court, we are faced with a situation that clearly falls under the language of LSA-R.S. 9:2795 E[1]. In distinguishing the Department [of Wildlife and Fisheries] from other landowners, that provision specifically departs from the requirement of demonstrated use as to recreational purposes." Id. at 802. Finding no reason to stray from this precedent, we hold that the trial court did not err in determining that the immunity granted to the DWF by La. R.S. 9:2795 applies in this case. We next look to whether the trial court erred in extending this same immunity to the DOTD and DNR even though La. R.S. 9:2795 only names the DWF.
In granting the DOTD's and DNR's motions for summary judgment, the trial court cited the First Circuit's ruling in Deumite v. State of Louisiana, 94-1210 (La.App. 1st Cir.02/14/97), 692 So.2d 1127. In Deumite, the First Circuit stated, "we must decide whether the State can be immune from liability for damages incurred because of the action or inaction of one of its executive department agencies and, at the same time, be not immune from liability for the same damages because the action or inaction of another executive department agency was also involved. To paraphrase an old saying, the State cannot be a little bit immune." Id. at 1140.
However, this ruling is in contradiction of the principles of interpreting the recreational use statutes clearly laid out by the Louisiana Supreme Court in Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097 (La.1990). In Monteville, the Supreme Court stated:
The Recreational Use Statutes are in derogation of common or natural right and, therefore, are to be strictly interpreted, and must not be extended beyond their obvious meaning. The rule *432 that statutes in derogation of natural or common right are to be strictly interpreted is now generally recognized as being a corollary of the rule that statutes in derogation of the common law are to be interpreted strictly. This rule is so well settled that it must be presumed that the legislature acted with full knowledge of the strict interpretation of statutes of this nature. The great majority of courts in other states interpreting recreational use statutes have held that because the statutes are in derogation of the common law and because they limit the duties of landowners in the face of a general expansion of premises liability principles, they must be strictly construed. For the purpose of this rule, "common law" should be understood to carry its broadest meaning, i.e., the existing body of law rather than the narrower definition of an ancient body of Anglo-American judge-made principles. Accordingly, where there is any doubt about the intent or meaning of laws in derogation of common law or common right, such as the Recreational Use Statutes, the statutes are given the effect which makes the least rather than the most change in the existing body of law.
Furthermore, the Recreational Use Statutes constitute grants of immunities or advantages to a special class of landowners against the general public. It is an established principle that legislative grants of such rights, powers, privileges, immunities or benefits as against the general public, as distinguished from a right against some other party, should be construed strictly against the claim of the grantee. This is a policy of such fundamental character that it can be said to have its sources in the very conception of law consisting of norms that are general, uniform, and impartial in operation in various constitutional guaranties aimed at assuring equal protection and equal treatment under the law. Id. at 1100-1 (citations omitted).
A strict interpretation of the recreational use statutes cannot extend a limitation of liability to any defendant not clearly identified by the statutes. In this case, La. R.S. 9:2795(E)(1) expressly provides the DWF with a limitation of liability, but does not name the State or any other state agencies. Were we to read this statute as providing immunity to all state agencies, we would be stretching the statute to its broadest possible meaning. A strict interpretation must limit the grant of immunity to the named executive department, which is the DWF. Thus, we find that the trial court erred in granting the DOTD's and DNR's motions for summary judgment as neither of these agencies is granted immunity by La. R.S. 9:2795(E)(1).
Further, this is consistent with the holding in Bradshaw, supra. In that case, this court observed that "[h]ad the Legislature envisioned the narrow interpretation that would subsequently arise through the Monteville decision, our lawmakers may well have chosen to broaden the statute to include agencies other than the Department. However, in view of the mandate of Monteville that recreational use statutes are to be construed strictly against claims of tort immunity, we must conclude that the present enactment does not confer a limitation of liability upon other political subdivisions of the state, such as the District." Id. at 801. Since our decision in Bradshaw and the Supreme Court's decision in Monteville, supra, the legislature has amended La. R.S. 9:2795 at least three times, but has not to date broadened the language of subpart (E)(1). As such, we find no reason to judicially broaden this interpretation.
*433 However, since our ruling in Bradshaw, the legislature has amended La. R.S. 9:2795 as it regards the Watershed District. Specifically, in 1996, the Legislature added subpart (E)(2)(a) which states that "the limitation of liability provided in this Section shall apply to any lands owned, leased, or managed as a public park by the state or any of its political subdivisions and which is used for recreational purposes." The trial court denied the Watershed District's motion for summary judgment after determining that there was a genuine issue of material fact as to whether the land owned and managed by the Watershed District was a "public park."
The recreational use statutes offer no guidance as to the definition of "public park." Thus, we must define this term by its generally prevailing meaning. La. Civ. Code art. 11. According to Webster's New Universal Unabridged Dictionary 1562 (2003), "public" is defined in pertinent part as "open to all persons; maintained at public expense and under public control; open to the view of all." Webster's defines "park" in pertinent part as "an area of land, usually in a natural state, for the enjoyment of the public, having facilities for rest and recreation, often owned, set apart, and managed by a city, state or nation." Id. at 1411.
Further, Black's Law Dictionary 1104 (5th Ed.1979), defines the adjective "public" in pertinent part as "pertaining to a state, nation or whole community; proceeding from, relating to, or affecting the whole body of people or an entire community. Open to all; notorious. Common to all or many; general; open to common use." Black's Law Dictionary 1005 (5th Ed.1979), defines the noun "park" as "an enclosed pleasure-ground in or near a city, set apart for the recreation of the public."
Perhaps most telling is that the area is commonly referred to as the "Spillway Park." The record shows that the Spillway Park is owned and managed by the Watershed District, a political subdivision of the State. The Spillway park is open to the public and provides accommodations for a variety of recreational activities.
Were this area to include simply a boat launch and parking lot, there would be a genuine issue of fact as to whether this area was a public park. However, the record is clear that the area is also used for a number of other recreational activities. In addition to boating and fishing, the area is used for hiking, camping, and picnicking. Consequently, we find that there is no genuine issue of material fact as to whether La. R.S. 9:2795(E)(2)(a) applies. It is clear that the Watershed District is a political subdivision of the State which owns a public park used for recreational purposes. Thus, the limitation of liability provided by subsection (E)(2)(a) is applicable to the Watershed District.
Plaintiffs argue that even if the DWF and the Watershed District are granted the limitations of liability provided by the recreational use statutes, as we have recognized in this case, there is still a genuine issue of material fact regarding whether the warnings provided by the DWF and the Watershed District were adequate to warn of the nature of the dangerous condition, and if the warnings were inadequate, whether this inadequacy was willful or malicious.
Louisiana Revised Statute 9:2795(B)(1) imposes a duty to warn of a dangerous condition upon the owner of land open to any person for recreational use. Also see La. C.C. arts. 2317 and 2317.1; La. R.S. 9:2800; Herbert v. Billwood, LLC., 03-758 (La.App. 3d Cir.12/23/03), 862 So.2d 1227; Leaman v. Continental Casualty Co., 00-0292 (La. *434 App. 4th Cir.09/26/01), 798 So.2d 285, writ denied, 01-3291 (La.03/08/02), 810 So.2d 1165; David v. Reon, 520 So.2d 820 (La. App. 3d Cir.1987), writ denied, 522 So.2d 564 (La.1988). The degree of care which satisfies this duty varies with the danger which will be incurred by negligence and must be commensurate with the danger involved. Calton v. LP & L Co., 56 So.2d 862 (La.App. 2d Cir.1952); Williams v. City of New Orleans, 433 So.2d 1129 (La. App. 4th Cir.1983). In regard to this duty as imposed by the recreational use statute, a failure to warn of a dangerous condition connotes a conscious course of action, and is deemed willful or malicious when action is knowingly taken or not taken, which would likely cause injury, with conscious indifference to consequences thereof. Johnson v. City of Morgan City, 99-2968 (La.App. 1st Cir.12/22/00), 787 So.2d 326; Mullins v. State Farm Fire and Casualty Co., 96-0629 (La.App. 1st Cir.06/27/97), 697 So.2d 750; Price v. Exxon, 95-0392 (La. App. 1st Cir.11/09/95), 664 So.2d 1273.
This court reviewed this same issue in Bradshaw, supra, where the court wrote, "Bradshaw's petition avers in this respect only that, since construction of the dam 25 or 30 years ago, "any number" of drownings have occurred in the same vicinity as the present accident; and, although aware of this, defendants negligently failed to erect proper and adequate signs warning of the "extremely dangerous condition" of the water and currents. Such allegations simply do not specify facts supporting a willful or malicious failure to warn, or even reflecting a risk so great as to make it highly probable that harm would follow." Id. at 802. Fortunately, the record in this case is rich in facts regarding the number of drownings at this specific site as well as the attempts and apparent failures to add additional warnings following five deaths in 1989.
The record is clear that there have been at least 30 similar deaths in this one spot since the spillway opened. In 1981 signs were posted on the spillway and boat launch warning of dangerous currents. Despite these warnings, in 1989 two boats carrying five people were drawn back into the spillway, capsizing, and killing all five people in the exact same manner as the accident that killed the Lamberts. Following these deaths, the Watershed District met to consider available options for adding further warnings of the extremely dangerous conditions during periods of high water. As a result of this meeting, the Watershed District installed a pipe and cable fence to close the high-water boat launch during dangerous conditions and a folding sign, which, when unfolded, stated that the boat launch was closed. At the time of the Lamberts' deaths, the boat launch remained open and the sign had never been unfolded.
There is conflicting evidence in the record as to who was responsible for closing the fence and unfolding the sign during dangerous conditions. Some evidence suggests that this was the DWF's responsibility and other evidence suggests that this was the Watershed District's responsibility. There is even some evidence that six years after the five drownings in 1989, the Watershed District determined that it would no longer use the fence or folding sign. This conflict in the record is sufficient to create a genuine issue of material fact as to whether these governmental entities provided adequate warning of a dangerous condition, and if inadequate, whether this failure to warn was willful or malicious. Thus, even though the DWF and the Watershed District are granted limited liability by the recreational use statute, this limitation of liability does not extend to their possible willful or malicious failure to warn against a dangerous condition. As such, both the DWF's and the *435 Watershed District's motions for summary judgment should have been denied.
Preemption Under La. R.S. 9:2772
Finally, the DOTD argues that its motion for summary judgment should have been granted because plaintiffs' suit against it is preempted by La. R.S. 9:2772. Under this statute, no action may be brought against a designer or builder of immovables or improvements for defects of, in this case, design or construction five years after the owner has occupied or taken possession of the improvement. The DOTD argues that while it constructed the boat launch, the Watershed District is the owner and had taken possession more than five years prior to the Lamberts' deaths.
Even if this is true, the DOTD does not escape potential liability as pertains to the dam. Though the record is not clear, it appears that the state owns the dam. Part of the plaintiffs' case is that the dam is flawed in that its design creates the vortex which pulls boaters against the natural current of the bayou and into the spillway structure, resulting in death. The DOTD has not made it clear who the owner of the dam is and whether it is still responsible for the upkeep and improvements to this structure. As such there remains a genuine issue of material fact as to whether this preemption applies to the DOTD. For this reason, the DOTD's motion for summary judgment should have been denied.
Conclusion
Immunities provided by the recreational use statutes must be strictly interpreted. As such, since the DWF is the only state agency named by the statute, the DOTD and the DNR are not granted immunity. Further, there remain genuine issues of material fact as to whether the plaintiffs' suit against the DOTD is preempted by La. R.S. 9:2772. Thus, trial court erred in granting the DOTD's and the DNR's motions for summary judgment.
While both the DWF and the Watershed District are granted limited liability under La. R.S. 9:2795, this limitation does not extend to a willful or malicious failure to warn of a dangerous condition. The record provides ample evidence to suggest that the Watershed District and/or the DWF failed to provide adequate warning and that this failure was willful. Thus, we find that the trial court erred in granting the DWF's and the Watershed District's motions for summary judgment.
For the reasons set forth above, that part of the trial court's judgment denying summary judgment to the Watershed District is affirmed. The remainder of the judgment, which granted summary judgment in favor of the Department of Transportation and Development, the Department of Natural Resources, and the Department of Wildlife and Fisheries, is hereby REVERSED.
This matter is REMANDED for further proceedings. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
As allowed by applicable statutory authority, costs are assessed to the Watershed District, the Department of Transportation and Development, the Department of Natural Resources, and the Department of Wildlife and Fisheries.
NOTES
[1] Persons familiar with the entire Bayou D'Arbonne area use the terms "spillway" and "dam" interchangeably when referring to the structure itself. On the other hand, there are just as many people who use the word "spillway" to refer to the lake, the dam, and the spillway structure itself, as well as the waters on the downstream side of the dam.
[2] As noted above, the summary judgment in favor of the Sheriff dismissing plaintiffs' claims against him is final, and plaintiffs and the Union Parish Police Jury have reached a settlement, so the police jury is no longer a party to this suit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919235/ | 912 So.2d 907 (2005)
Re Kendall BLAKE, M.D., Jackson Bone and Joint Clinic, L.L.P. and Stuart Robinson, Jr.
Re Michael Dulske, M.D. Capitol Orthopaedic Clinic, P.A. and Stuart Robinson, Jr. Individually, Petitioners.
Re State of Mississippi, Mississippi Bureau of Bldg. & Real Property Mgt., Mississippi Dept. of Finance & Administration and Stuart Robinson, Jr.
Re National General Insurance Co., and Stuart Robinson, Jr., Individually.
Re Michael G. Dulske, M.D., Capital Orthopaedic Clinic, P.A. and Stuart Robinson, Jr.
Re James Marx, F.N.P. and Stuart Robinson, Jr. Individually, Petitioners.
Re James D. Polk, M.D., James Marx, Nurse Practitioner, Baptist/Richland Primary Care Ctr., P.A. and Stuart Robinson, Jr.
Nos. 2003-M-02790, 2003-M-02777, 2003-M-02781, 2003-M-2783, 2003-M-02784, 2003-M-02786, 2003-M-02787.
Supreme Court of Mississippi.
March 23, 2005.
*908 ORDER
JESS H. DICKINSON, Justice.
¶ 1. Before the Court are Petitions for Writ of Mandamus filed by attorney Stuart Robinson, Jr., and his clients (collectively Robinson), seeking recusal of Circuit Judge Tomie T. Green in seven pending cases and all future cases in which Robinson appears as counsel.[1] Robinson claims that Judge Green "demonstrates probable bias (sic) and a lack of impartiality as regards [Robinson], such that her Honor should be recused from this case, and any other cases currently pending before her Honor, or subsequently assigned to her Honor, wherein [Robinson] is counsel." Although Judge Green sharply disputes Robinson's interpretation of events, the factual basis for Robinson's claim is essentially undisputed.
BACKGROUND FACTS
¶ 2. The controversy apparently began in a lawsuit filed by David Alexander Clein against Kendall Blake, M.D., et al., when Judge Green set the matter for trial. Robinson, who was employed as counsel to represent the defendants, requested time to confer with experts regarding potential conflicts. Judge Green denied the request.[2] When Robinson later learned that all three of his retained experts would be unavailable due to "existing conflicts with the trial date, and the death of one (1) expert," he filed a motion for continuance, which was denied, followed by a renewal of the motion for continuance which also was denied. Robinson then applied for a writ of mandamus, asking this Court to intervene. His request was denied, and the *909 case proceeded to trial on February 11, 2002.[3]
Expert Controversy.
¶ 3. During trial, an issue surfaced involving Robinson's ability to produce one of his experts, Dr. Greer Richardson, for live testimony, rather than submitting his testimony by deposition. Having been informed long before trial that Dr. Richardson had a conflict[4] with the trial date, Robinson had already deposed him for trial purposes. However, Dr. Richardson informed Robinson by letter dated August 29, 2001, that, if he was needed to appear live at trial, he would try to make arrangements to get there. In his response to Dr. Richardson the next day, Robinson said he would like for Dr. Richardson to appear live, and he asked Dr. Richardson to keep him advised of his availability.
¶ 4. On October 22, 2001, Dr. Richardson indicated to Robinson's co-counsel that, due to the conflict, he did not think he could appear. Thereafter, several contacts were made in an unsuccessful attempt to arrange a flight schedule which would allow Dr. Richardson to appear live. On January 9, 2002, Dr. Richardson informed Robinson that he would not be able to appear.
¶ 5. Apparently, Dr. Richardson later learned that there was a possibility he could arrange to get to Jackson for the trial. Although the record does not reflect how this new development was communicated from Dr. Richardson, Robinson's co-counsel informed plaintiff's counsel by letter dated February 5, 2002 (six days before trial) of the possibility of Dr. Richardson's live appearance. The letter stated, "We don't know one way or the other as of yet."
¶ 6. The trial began, as scheduled, with Dr. Richardson still unsure about his ability to travel to Jackson for live testimony. During the week of trial, the subject apparently came up (although we aren't told how), and Robinson apparently informed Judge Green that Dr. Richardson might be able to testify live. Judge Green responded by saying, "So what I offered to you ahead of time,[5] you now want to say if he doesn't come then you want to have the deposition by tape?" Robinson responded in the affirmative.
¶ 7. At this point, it appears to this Court that the issue had been clearly and respectfully presented by Robinson to Judge Green, and that she clearly understood. What is unclear is why the matter didn't simply drop until time for Dr. Richardson's testimony, at which time he would either walk to the witness stand, or Robinson would offer his deposition testimony. For whatever reason, Judge Green did not let the matter drop. The exchange that next took place cannot be reconciled with anything previously stated or anything elsewhere in the record. For clarity, we will recite the relevant portion of the record provided to us, verbatim:
THE COURT: So, again, Mr. Robinson, Dr. Richardson will be here correct?
MR. ROBINSON: He has booked a flight and we anticipate him being *910 here. I would say 99.99 percent chance that he will be here.
THE COURT: Mr. Robinson, why are you playing games with words. I knew whether my witnesses were going to be at trial when I was practicing law. Why is it that you don't know whether Dr. Richardson will be here or not?
MR. ROBINSON: Because he previously advised us that he would not be able to be here for the trial and we've also had one witness die, one of our experts, so I'm a little
THE COURT: I didn't ask you about nobody else but Dr. Richardson. I'm saying why don't you know whether Dr. Richardson will be here or not. I'm well aware that tomorrow none of us may be here. But I want to know why you can't tell me that Dr. Richardson will be here. He's your expert.
MR. ROBINSON: Yes, ma'am. What I said a few minutes ago, he previously advised us that he could not make it. . . . We're going to call him by video in accordance with the rules.
MR. STEVENS: Dr. Leventen is the one that was indicated to this court was too old to travel.
THE COURT: Hold on. If you say in accordance with the rules one more time, counsel, I know the rules. I understand the rules very well. So from now on you don't have to put that editorial at the end of every statement because every time that you've said it have you noticed I hesitated. I'm counting. I understand very well what the rules are, but this morning you can't tell me whether Dr. Richardson will be here and you come up with this nice way of saying you can't guarantee, you're 99 percent sure that he'll be here, but if he doesn't, you want to use his deposition.
We have been arguing over this back and forth for a year now, Mr. Robinson, and I just cannot believe that you couldn't find you a couple of experts that would not be a problem that the plaintiff would have the benefit of their testimony and be able to rebut or cross-examine. . . . But it's their case. And if they don't want that doctor here live to testify to that jury, that's fine with me. That's what I told them when they decided to make the interlocutory appeal. But it doesn't bother me when people appeal. That's just the nature of the beast. But for some reason attorneys think they can threaten the judge by saying they want to take an interlocutory appeal. If I were a younger lawyer that might would work, but I been practicing too long. So, in terms of that, I'll just need to have the depositions so that when you do make your objections I'll know how I'm going to rule because I will have read the depositions. But I am not as dumb as you think. I know very well what Mr. Robinson and the other attorneys are doing when they are playing the game with Dr. Richardson, and it is a game.
MR. STEVENS: And I think you're a lot smarter than me by the way.
THE COURT: If he is going to be here, he's going to be here. If he isn't, he isn't. But they are taking a chance on me because they may not have Dr. Richardson either way.
* * *
THE COURT: Counsel, I been reading the file and I've read the file for a number of times and every place I did a second look at it today and every *911 place there was an indication that Dr. Richardson wouldn't be here.
MR. STACK: That he wasn't going to be here?
THE COURT: Yes, sir.
MR. STACK: He had a flight and he was prepared to be here and testify Friday and that was why we
THE COURT: Then what's the problem if he was going to be here Friday to testify.
MR. STACK: Right.
THE COURT: Okay. Well, what's the problem.
MR. STACK: Well, I thought Your Honor said we weren't going to have court on Friday.
THE COURT: Right. And you only came up to tell me that he wasn't going to be here on Friday after you learned I said I wasn't going to be here. So what's the problem with him coming Friday anyway?
MR. ROBINSON: If I may address, Your Honor. Your Honor called and spoke with Dr. Munn. If the court thinks that we're playing games I don't have any problem with you calling Dr. Richardson. We work with the facts we're given and end up doing the best we can.
THE COURT: I asked you whether Dr. Richardson on Monday was going to be here on Friday.
MR. ROBINSON: And I gave you an honest answer based upon the information available to me.
THE COURT: Counsel, I've never had anyone at any trial at any time I've been on this bench tell me in the terms that you told me Monday, that you may or may not have an expert. This is the first time anybody walked in an told me, well, we don't know because our expert is at a convention. You knew a year ago, a year ago, that Dr. Richardson was not going to be here. Is that correct?
MR. ROBINSON: Your Honor, I've given you the information as honestly as I can. If you want me to take the stand and give it to you that way or you can call Dr. Richardson. All I can do is give you
THE COURT: I want you to answer my question. You knew a year ago that Dr. Richardson was not going to be here; am I correct?
MR. ROBINSON: When you set this case for trial, we checked and there was a conflict. These things were planned a year in advance. That's why we moved for a continuance, which you denied.
THE COURT: And you appealed it and the Supreme Court denied it.
MR. ROBINSON: That's my problem, yes, ma'am.
THE COURT: And evidently they looked at the fact that you knew a year ago that Dr. Richardson couldn't be here, didn't you?
MR. ROBINSON: One of them agreed with us. And, Judge, I can only do what I can do. And if there is something else you tell me to do, I'll do my best to accommodate the court.
THE COURT: Get Dr. Richardson here on Friday. You said you'd do what I wanted you to do, and we'll have him testify on Saturday morning.
MR. ROBINSON: I'll do the best I can. I cannot tell you that he'll definitely be here.
THE COURT: You couldn't tell me anything Monday.
MR. ROBINSON: I gave you an honest answer Monday, and I'm giving you an honest one today.
*912 THE COURT: No, you did not give me an honest answer. You're not giving me an honest answer today. I asked you about the Supreme Court ruling and you told me one person agreed with you. Do you have an order from that one person?
MR. ROBINSON: No, I don't have an order from that one person.
THE COURT: So why did you say that?
MR. ROBINSON: Because it was the truth.
THE COURT: But why did you feel it was necessary to say that to me, Mr. Robinson?
MR. ROBINSON: Judge, I can see we're going to disagree. I respect Your Honor, and I will do whatever I can to accommodate the court and abide by the ruling of the court. There's nothing more than I can do.
THE COURT: I'll ask you again. Then why did you say to this court that one person agreed with you? What was the reason for you to say that to me, Mr. Robinson?
MR. ROBINSON: I can't remember the context it came up but that is an accurate fact.
THE COURT: And what's the significant of that?
MR. ROBINSON: None.
THE COURT: So why did you say it?
MR. ROBINSON: I cannot tell you, Judge.
THE COURT: I know you can.
MR. ROBINSON: I guess in responding to your questions.
THE COURT: I do understand, Mr. Robinson. You know something, there has not been a single questions that I've asked you that you have answered directly, not a single one. And we expect witnesses to get on the stand and answer the question that we direct to them. But how can we do that when I have not had you this entire case when I asked you a question to give me a direct answer.
MR. ROBINSON: Your Honor, I feel like I have. We'll just have to agree to disagree I guess.
THE COURT: I don't know whether we do or not. But I do expect integrity in the attorneys getting up here before me.
MR. ROBINSON: You have that.
THE COURT: No, sir, I do not, Mr. Robinson. Anytime I ask you a questions and you can't give me a direct answer, I'm not sure I got integrity or not. Now I knew when I said that I wouldn't be here Friday exactly what was going to happen and I could have written it down and it still would have been true that the moment I said I was not going to be here Friday, you-all would come in and tell me Dr. Richardson couldn't get here for Saturday.
MR. ROBINSON: Well, if you believe that you'll
THE COURT: Can he get here for Monday?
MR. ROBINSON: Yes, And if Your Honor, if you want to put me on the stand or even Dr. Richardson to
THE COURT: He can be here for Monday?
MR. ROBINSON: Yes, ma'am.
THE COURT: We'll have him here on Monday morning. Bring the jury in. I assume that that means then that I don't have to rule on any of these objections. We'll have Dr. Richardson live on Monday morning, and it's absolutely timely, simply because we are out of term. . . .
*913 ¶ 8. After diligent search by the members of this Court, we are unable to locate within the transcript or other papers provided to us,[6] the source of Judge Green's anger and vitriol toward Robinson concerning production of Dr. Richardson.
¶ 9. In his brief, plaintiff's counsel attributes the controversy to his assessment of Robinson as "difficult and frustrating;" one who "plays with words, refuses to give a straight answer and then blames everyone and everything around when their (sic) hand is called." Early in his brief, plaintiff's counsel assures us that we will learn, "through a careful dissection of defense exhibits, they[7] (sic) are playing loose with the facts. . . ." Finally, plaintiff's counsel assures us that it will "become evident" that the controversy "had nothing to do with the Judge and everything to do with a perjuring expert witness who caused his frivolous defense to crumble before his very eyes."
¶ 10. Finding ourselves intrigued by these bold and confident averments from plaintiff's counsel concerning evidence we had apparently missed, we redoubled our effort and again diligently searched each page, paragraph and line of the record for the promised evidence of Robinson's questioned conduct. We found nothing. Not a single jot nor tittle in the transcript or exhibits before this Court[8] demonstrated the slightest disrespect or insult from Robinson directed toward the Court. We found nothing to indicate that Robinson was playing "loose with the facts." And we found nothing whatsoever to indicate that Robinson's motion was related to an alleged "perjuring expert witness."[9]
¶ 11. Plaintiff's counsel claims that after Judge Green stated she would not hold court on Friday, Robinson "curiously declared that Dr. Richardson could be available-but only on Friday." The transcript does not bear out this claim.
¶ 12. Plaintiff's counsel claims that when Judge Green offered to allow Dr. Richardson to testify on Saturday, the offer was "inexplicably rebuffed by defense counsel." Again, the transcript does not bear out this claim.
¶ 13. Finally, plaintiff's counsel claims that Robinson "lacked the requisite respectful tone" as he "continued to allege that Dr. Richardson was not available for any other times." We find no instance in the record where Robinson ever alleged that Dr. Richardson was available only on Friday, and at no other time.
¶ 14. This litany of unreliable representations by plaintiff's counsel compels us to place little reliance on his briefs and we strongly urge plaintiff's counsel to carefully consider and check the accuracy of his representations to this Court before signing them.
¶ 15. In support of his motion, Mr. Robinson cites from the trial transcript other examples of hostile statements by Judge Green, including the following:
JUDGE GREEN: You don't have to suggest to me what to do. I know *914 what to mark for identification counsel.
* * *
MR. ROBINSON: No, but he got one of the 1988 that was stamped in the Jackson Bone & Joint Clinic stamp when the box fill (sic) on his foot which I believe depicts all of his calluses (sic), I believe the 2nd, 4th, & 5th.
JUDGE GREEN: Well, I don't need your belief. I need an answer to my question. I'll ask again. Whose medical history did he have? Did he have Dr. Hughes?
* * *
MR. ROBINSON: The Mississippi Supreme Court requires that you put on evidence of a crime, what you have to show that's probative of dishonesty.
JUDGE GREEN: Thank you, Mr. Robinson. I missed that in law school.
¶ 16. The record provides no justification whatsoever for Judge Green's animosity and sarcasm toward Robinson. We recognize and endorse a trial judge's duty to control the courtroom, using reasonable measures to efficiently move matters along and keep over-zealous counsel in check. However, the professional obligations of dignity, respect and decorum is not limited to counsel. Canon 1 of the Code of Judicial Conduct states, "A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved."
Incomplete Record.
¶ 17. After the jury returned a verdict for the plaintiff, defendants attempted to obtain a certified record for appeal. In the process, it was discovered that some of the exhibits were missing. Also missing were portions of other exhibits, pleadings, jury instructions, and the signed pretrial order. This led to a hearing on October 14, 2003, before Judge Green in which she questioned counsel regarding the missing items. Robinson wanted the lost items in the record for appeal. Some of the items, including the signed pretrial order, could not be found. This exchange followed:
JUDGE GREEN: Well, it doesn't have to go in. A pretrial order is not required. That's my preference. But no pretrial order has ever been a requirement for a trial. It just binds the parties.
MR. ROBINSON: That's the only point, Your Honor. That's why we want it in there.
JUDGE GREEN: Well, I just said then we'll have to deal with this, and you said you had an objection to it.
MR. ROBINSON: I've got an objection to the original submitted to Your Honor not being part of the record. I would like it found.
JUDGE GREEN: You've lost your mind, Mr. Robinson. What's the next thing that's lost? You want to find it, is that what you're saying? Is that what you're saying, Mr. Robinson?
MR. ROBINSON: I'm saying I would like it found naturally because we would like to have it for appeal. I don't know another way to state it. I think Your Honor would be as concerned as we are that we don't have an accurate record for appeal. We did not create this problem.
Requests for Transcript of the Hearing
¶ 18. The October 14, 2003, hearing on Plaintiff's Motion to Deem Record Complete followed over a year and a half of exchanges among counsel and the Circuit Clerk's office regarding the missing items *915 and the appeal record. When plaintiff's counsel noticed the motion for hearing, Robinson sent an October 8, 2003, letter to the Hinds County Court Administrator, requesting a court reporter for the hearing.
¶ 19. On October 14, 2003 (the day of the hearing) Melissa M. McCarty, a para-legal with Robinson, sent another letter to the Court Administrator, confirming a voice mail in which Robinson confirmed that he wished to obtain a copy of the transcript of the hearing.
¶ 20. On November 3, 2003, Robinson sent a letter to the Court Administrator, requesting the transcript.
¶ 21. On December 15, 2003, McCarty wrote the Court Reporter and complained of numerous unreturned messages left with her concerning the transcript. The letter also confirmed a conversation which took place on November 28, 2003, in which the reporter stated that another 10 to 14 days would be required. This letter again requested the transcript.[10]
¶ 22. On December 29, 2003, when Robinson filed the Petition for Writ of Mandamus seeking recusal of Judge Green, he still did not have the transcript of the October 14, 2003, hearing. Robinson states in his motion:
At the start of this hearing, Judge Green asked the undersigned why he wished a court reporter to transcribe the proceeding. The undersigned advised Judge Green he wished to maintain a record of the proceeding. Defendants and the undersigned have, on multiple occasions, requested from the Court a copy of the transcript of the October 14, 2003 hearing on Plaintiff's Motion to Deem Record Complete, but have yet to receive the same.
¶ 23. Upon receiving the motion, this Court issued an order to show cause why the transcript had not been provided to Robinson. The court reporter then transcribed the hearing on March 30, 2004, almost six months after the hearing. Judge Green and the court reporter jointly responded to the "show-cause" order, blaming the failure to produce the transcript on the style of the show-cause order. Judge Green also stated in her response that "there may have been miscommunication between the petitioners and the court reporters," and that she was "bewildered that the Petitioners would claim to have repeatedly requested the transcript. . . . There has been no refusal to produce the transcript. Had the Petitioner brought the oversight to the court's attention, then it could have been handled promptly. . . ."
¶ 24. At the time she filed her response to the "show-cause" order, Judge Green had in her possession for three months a copy of the Petition for Writ of Mandamus (including Exhibit 4 which contained the letters requesting the transcript). Thus, giving Judge Green the benefit of the doubt concerning Robinson's prior requests, she certainly was fully aware of the request for the transcript after reading Robinson's petition. Yet, nothing was done for months, and until this Court issued the "show cause" order. Thus, it is Judge Green's bewilderment that is bewildering. The transcript should have been provided within a reasonable time after it was requested. It wasn't. Robinson persuasively argues that the failure to provide the requested transcript is yet another indication of Judge Green's animosity toward him.
*916 Judge Green's Response to the Petition.
¶ 25. In addition to her response to the "show-cause" order, Judge Green filed a response to the Petition for Writ of Mandamus. Therein, she made the following statement:
Trial judges of a not-traditional gender and/or hue are not always well received by attorneys who prefer more traditional jurists. Many attorneys take offense at having to appear before or be subjected to rulings or instructions of the cout (sic). However, I have never had a situation where an attorney intentionally misrepresented the court's conduct to an appellate court in an attempt to malign the court's character and integrity. Any and all responses by the court, the petitioning attorney, or any attorney for that matter, are directly responsible (sic) to the attorney's conduct, misconduct or failures.
¶ 26. Judge Green then implores us to read the "full transcript submitted by the petitioners in the context of pretrial hearings that petitioners chose not to request court reporters." She asks us to "consider the motives or lack of motive of the judge, as well as those of the Petitioners." She further characterizes Robinson's averments as "false allegations" and efforts at "intimidation, harassment and retaliation" against the court. She states that the claims "are without merit, are frivolous, and should be dismissed." She accuses Robinson of "evasiveness in response to the court's inquiry." She claims to be frustrated at Robinson's "tactics and misrepresentations to the court." She accuses him of using "questionable tactics" in "manufacturing a case for recusal by the court," and in "soliciting or entertaining unfounded allegations."
¶ 27. Other than these broad-brush, unsupported attacks on Robinson, Judge Green does not respond to the specific issues raised by Robinson. Nor does she direct us to a single instance of "false allegations," "intimidation," or "evasiveness." If such conduct occurred, there is no suggestion of it in the record presented to us.
ANALYSIS
¶ 28. For the sake of clarity, we point out that judges and lawyers are not required to like each other. They are, however, required to maintain a reasonable level of respect, decorum and professional courtesy. This Court has a solemn duty "to guard jealously `the public's confidence in the judicial process'" Dodson v. Singing River Hosp. Sys., 839 So.2d 530, 534 (Miss.2003) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)).
¶ 29. Lawyers are expected, even required, to represent their clients with zeal and passion. This sometimes leads to particularly aggressive statements made on the spur of the moment, in an effort to attain for the client every permissible advantage and gain.
¶ 30. Judges are expected to control the courtrooms and move cases along, so that respect for the judiciary and the legal system is maintained. Sometimes, frustration and impatience are brought on by the judge's perception of how attorneys could better handle matters before their court. An attorney's attempt to properly represent his or her client can, on occasion, be viewed by a trial judge as an attempt to delay or obfuscate. When this happens, trial judges have little time to fully analyze the motives of lawyers. The natural reaction of all but the most disciplined judges will sometimes lead to displays of anger, frustration and surprising vocabulary. This often will result in the appearance of *917 personal animosity which, in turn, can provoke fear of prejudice.
¶ 31. But demonstrating that a lawyer was overly aggressive, or that a judge was grouchy, irritated and less than circumspect in selection of vocabulary, has little to do with proving impartiality. Rarely do judges allow their frustration, anger, impatience and irritation to influence the dispensation of justice. However, recusal is required if a personal tension between a lawyer and judge would lead a reasonable person to question whether the judge would have a personal bias or prejudice concerning the lawyer's client. See Davis v. Neshoba County Gen. Hosp., 611 So.2d 904, 906 (Miss.1992).
¶ 32. We are now left to sort through this unpleasant series of events and determine whether Robinson has met the burden necessary for recusal of Judge Green, not only in the Clein case which has already proceeded to trial, but in all cases in which he is counsel and Judge Green is the trial judge.
¶ 33. The oath of office taken by all trial judges, including Judge Green, requires that judges "administer justice without respect to persons," and that they "faithfully and impartially execute and perform" all of their duties.
¶ 34. The Code of Judicial Conduct which guides the behavior of judges requires recusal "in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances. . . ." Canon 3(E)(1). This is so, even if none of the specific reasons for recusal cited in the Canon apply. Comment, Canon 3(E)(1).
¶ 35. This guideline was applied by this Court in McFarland v. State, 707 So.2d 166 (Miss.1997), which held:
A presumption exists that the judge, sworn to administer impartial justice, is qualified and unbiased, and where the 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 is subject to review only in case of manifest abuse of discretion.
Id. at 180 (citations omitted).
¶ 36. In considering recusal motions, this Court will not look exclusively at the incidences complained of, but must take into account all of circumstances. Dodson, 839 So.2d at 534. We agree with a court from a sister state that, in viewing all circumstances, recusal is required only where the judge's conduct would lead a reasonable person, knowing all the circumstances, to conclude that the "prejudice is of such a degree that it adversely affects the client." Town Centre of Islamorada v. Overby, 592 So.2d 774, 775 (Fla.Dist.Ct. App.1992).
¶ 37. In the case sub judice, we have no constitutional or statutory claim for recusal. Thus, the matter is left to Judge Green to determine whether she should recuse, and this Court will not reverse her decision, absent manifest abuse of discretion.
¶ 38. Nevertheless, the record before us clearly demonstrates that Judge Green entertained a high degree of hostility toward Robinson and that her conduct during the exchange regarding Dr. Richardson's availability to testify was not an isolated loss of temper. Later, in proceedings regarding the misplaced exhibits and again when Robinson made a routine request for a court reporter, Judge Green's animosity continued and appeared to increase. While we do not know the reason for this demeanor on her part, nothing in the record, in the briefs of the plaintiff, or in Judge Green's responses indicate any actions on *918 the part of either Robinson or his co-counsel suggesting that her actions were responsive to improper conduct on their part. When invited to explain the circumstances, Judge Green made conclusory allegations, including those of racial and gender prejudice, which are totally without support in the record.
¶ 39. In spite of the leeway given judges in the management of their courts, here we find nothing before us which would explain Judge Green's conduct. We further find that her continued hostility even beyond the trial to post-trial efforts to obtain an accurate record is such as to cause a reasonable person aware of all the circumstances to question whether Robinson's clients can get a fair hearing in her court. Additionally, her totally unsupported and reckless charges of gender and racial prejudice pulled from thin air were totally inappropriate and are further evidence of her hostility.
¶ 40. For reasons we need not discuss here, it has not been this Court's practice to grant prospective recusal, and we decline to do so now. We shall review any request for recusal in future cases on a case-by-case basis.
¶ 41. IT IS THEREFORE ORDERED that the petitions are granted to the extent that they seek the recusal of Circuit Judge Tomie T. Green in each of the seven pending cases in which Stuart Robinson, Jr. is attorney of record and Judge Green is recused in these seven cases:
1. David Alexander Clein v. Kendall T. Blake, M.D. and Jackson Bone & Joint Clinic, LLP; XXX-XX-XXXX CIV
2. Lee Perry v. National General Insurance Company, et al; XXX-XX-XXX CIV
3. Cheryl Havard v. Michael G. Dulske, M.D., Capital Orthopaedic Clinic, P.A., Mississippi Surgical Center Limited Partnership and Mississippi Surgical Center Inc.; XXX-XX-XXX CIV
4. Sheila Sanders v. American National Life Insurance Company of Texas and James Marks, F.N.P.; XXX-XX-XXXX CIV
5. James Robert Prince v. The State of Mississippi, Mississippi Bureau of Building and Real Property Management, Mississippi Department of Finance and Administration and Joe Does 1 through 50; XXX-XX-XXX CIV
6. The Wrongful Death Beneficiaries of Harold Rogers, Deceased v. James D. Polk, M.D., James Marx, Nurse Practitioner, and Baptist/Richland Primary Care Center, P.A., Unnamed Known Physicians and Nurses; XXX-XX-XXXX CIV
7. Deborah Dixon v. Michael Dulske, M.D. and Capitol Orthopaedic Clinic, P.A.; XXX-XX-XXX CIV
¶ 42. IT IS FURTHER ORDERED that the petitions are denied to the extent that they request Judge Green's recusal in all future cases in which Robinson appears as counsel.
¶ 43. SO ORDERED.
EASLEY AND GRAVES, JJ., WOULD DENY. DIAZ, J., NOT PARTICIPATING.
NOTES
[1] Motions for Recusal were filed in seven civil actions pending in the Circuit Court of the First Judicial District of Hinds County, styled as follows:
1. David Alexander Clein v. Kendall T. Blake, M.D. and Jackson Bone & Joint Clinic, LLP; XXX-XX-XXXX CIV
2. Lee Perry v. National General Insurance Company, et al; XXX-XX-XXX CIV
3. Cheryl Havard v. Michael G. Dulske, M.D., Capital Orthopaedic Clinic, P.A., Mississippi Surgical Center Limited Partnership and Mississippi Surgical Center Inc.; XXX-XX-XXX CIV
4. Sheila Sanders v. American National Life Insurance Company of Texas and James Marks, F.N. P.; XXX-XX-XXXX CIV
5. James Robert Prince v. The State of Mississippi, Mississippi Bureau of Building and Real Property Management, Mississippi Department of Finance and Administration and Joe Does 1 through 50; XXX-XX-XXX CIV
6. The Wrongful Death Beneficiaries of Harold Rogers, Deceased v. James D. Polk, M.D., James Marx, Nurse Practitioner, and Baptist/Richland Primary Care Center, P.A., Unnamed Known Physicians and Nurses; XXX-XX-XXXX CIV
7. Deborah Dixon v. Michael Dulske, M.D. and Capitol Orthopaedic Clinic, P.A.; XXX-XX-XXX CIV
[2] Although we do not doubt Robinson's statement since no one disputes it, the record contains no evidence of his request or Judge Green's denial. However, the record does reflect that Robinson "approved and consented to" an "Agreed Scheduling Order" dated May 2, 2001, which set the matter for trial on February 11, 2002. The order recites that it was entered "on the joint motion of the plaintiff and defendant."
[3] Since the petitions in these matters were filed, the judgment in the Clein case has been appealed to this Court and we have before us the complete record and briefs of the appeal. We have examined this record, along with the record offered in support of the petitions for writs of mandamus, and find the entire trial record fully supportive of the conclusions which we reach here.
[4] This was one of the expert conflicts that led to Robinson's motion for continuance and application to this Court for mandamus.
[5] Judge Green had previously approved a deposition of the expert.
[6] We note that several pages of the transcript which contain relevant discussion were not provided to us by either party or Judge Green.
[7] We take this to mean "Robinson."
[8] Both plaintiff's counsel and Judge Green were afforded the opportunity, and indeed encouraged, to provide this Court evidence of Robinson's alleged improper behavior.
[9] Indeed, Plaintiff's counsel presented us with no evidence whatsoever of any "lying witness." While such an inflammatory, unsupported statement (should a trial judge improperly allow it to be made) might serve to sway a jury, it has no influence here and, if made in bad faith, borders on contempt of court.
[10] The efficient administration of justice requires cooperation, diligence and professionalism, not only from lawyers and judges, but also from court reporters and court administrators. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455527/ | 798 S.W.2d 661 (1990)
PROSPER INDEPENDENT SCHOOL DISTRICT, et al., Appellants,
v.
CENTRAL EDUCATION AGENCY, Collin County Commissioners Court, McKinney Independent School District and Bill H. Terrell, Appellees.
No. 3-90-095-CV.
Court of Appeals of Texas, Austin.
November 28, 1990.
Rehearing Overruled January 9, 1991.
*664 Robert E. Luna, Law Offices of Earl Luna, P.C., Dallas, for appellants.
Anne E. Swenson, Asst. Atty. Gen., C. Robert Heath, Bickerstaff, Heath & Smiley, Austin, for appellees.
Before POWERS, GAMMAGE and CARROLL, JJ.
CARROLL, Justice.
School district appeals the district court's affirmance of a detachment order. We will affirm the judgment of the district court.
BACKGROUND
Prosper Independent School District seeks to retain a portion of its territory, against the wishes of the territory's residents.
In 1986, a majority of the registered voters in a 1200-acre section of Collin County petitioned the Collin County Commissioners Court (the "county commissioners"), requesting that their property be detached from Prosper and annexed to McKinney Independent School District. The county commissioners granted the petition over Prosper's objection. Prosper appealed to the state commissioner of education (the "state commissioner"), pursuant to Tex. Educ.Code Ann. §§ 11.13(a) and 19.009(a) (Supp.1990). The state commissioner affirmed. Prosper then sued for judicial review in the Travis County District Court, which also affirmed.
As to substantive matters, Prosper contends that the detachment: (1) encompasses land not contiguous to McKinney; (2) adversely affects racial diversity at Prosper and McKinney; and (3) significantly reduces Prosper's tax revenues. As to procedural issues, Prosper complains that the county commissioners have not allocated any of its indebtedness to McKinney and that McKinney did not properly approve the annexation. Finally, Prosper argues that the county commissioners acted in bad faith. We will address each of these arguments in turn.
DISCUSSION AND HOLDINGS
A. Contiguity
Prosper contends that the district court erred because part of the subject territory is not contiguous to McKinney. We disagree.
Detachment and annexation of school districts is controlled by Tex.Educ. Code Ann. § 19.022 (Supp.1990). Section 19.022(a) provides that territory may be detached from one school district and annexed to another school district that is "contiguous to the detached territory." (Emphasis added). Territories are "contiguous" if they may be included in a common boundary line, without any intervening spaces. Joaquin Indep. School Dist. v. Fincher, 510 S.W.2d 98, 103 (Tex.Civ.App. 1974, writ ref'd n.r.e.) (construing meaning of "contiguity" under former § 19.231, 1969 Tex.Gen.Laws, ch. 889, § 1, at 2878 [Tex.Educ.Code § 19.231, since revised as Tex.Educ.Code Ann. § 19.051 (Supp. 1990)]). In this case, the entire territory covered by the detachment order may be included in a common boundary line with McKinney without any intervening spaces. Therefore, the territory is contiguous to McKinney.
Prosper concedes that the territory, taken as a whole, is contiguous with McKinney. Prosper contends, however, that the territory cannot properly be treated as a unit because it is composed of three distinct tracts: two residential tracts connected *665 by a nonresidential tract. Since one of the residential tracts does not abut McKinney, Prosper contends, that tract is not "contiguous" to McKinney. Prosper further asserts that, at least in this case, the tracts may not be grouped to satisfy the statutory contiguity requirement.
No Texas law forbids the grouping of tracts such as these to establish contiguity. Rather, the county commissioners were vested with broad discretion to transfer territories between school districts, subject only to the minimum statutory requirements. Central Educ. Agency v. Upshur County Comm'rs Court, 731 S.W.2d 559, 561 (Tex.1987).
Prosper's sole support for its theory is an order of the state commissioner of education which requires a residential tract to have a "legitimate interest" in an uninhabited tract before the two may be grouped to satisfy contiguity requirements. We are not, however, bound by a decision of the state commissioner. See Barstow v. State, 742 S.W.2d 495, 501 n. 2 (Tex.App. 1987, writ den'd). Moreover, we question the validity of the state commissioner's rule since the supreme court recently held that the state commissioner may not apply to territory transfers requirements not found in section 19.022. Upshur, 731 S.W.2d at 561 (state commissioner of education could not reverse county commissioners' detachment order solely because residents were seeking detachment to obtain lower school taxes). We hold that the county commissioners could treat the tracts as a unit for the purposes of deciding the annexation and detachment petition.
B. Racial Diversity
Prosper claims that the detachment is invalid because it will have a significant adverse impact on racial diversity in Prosper and McKinney. Specifically, Prosper argues that the detachment violates an order requiring the state commissioner of education to study the impact of a territory transfer on desegregation of the school districts involved. See United States v. Texas, Civ. No. 5281 (E.D.Tex. July 13, 1971) (reprinted at 441 F.2d 441, 444 (2d Cir.1971)).
We do not agree with Prosper's contention. Prosper's argument does not relate to any state law requirements. Rather, it is an attempt to obtain collateral enforcement of a federal order. This court is not required to follow and enforce an order of a United States District Court. Omniphone, Inc. v. Southwestern Bell Telephone Co., 742 S.W.2d 523, 526 n. 3 (Tex.App.1987, no writ); Barstow, 742 S.W.2d at 501 n. 2.
Moreover, the record in this case establishes that the detachment would have a negligible effect on the racial compositions of Prosper and McKinney. The county commissioners found that detachment would increase Prosper's minority student population, which is Hispanic only, from 14.88% to 15.83%, or less than one percent. The county commissioners further found that students who transfer from Prosper to McKinney would enter a more racially diverse environment. McKinney has a 34.27% minority population, which includes members of several ethnic groups. We hold that the evidence establishes that the detachment would not have a significant, adverse effect on racial diversity in Prosper and McKinney.
C. Prosper's Tax Revenues
Prosper complains that the county commissioners' finding as to the effect of detachment on Prosper's tax revenues is not supported by substantial evidence.[1] Specifically, Prosper contends that the evidence conclusively demonstrates that detachment will result in an enormous loss to Prosper's tax revenues. We disagree.
Tex.Educ.Code Ann. § 19.022(g) (Supp. 1990) requires county commissioners to consider the social, economic, and educational effects of a proposed boundary change before granting a detachment petition. *666 Prosper apparently argues that the detachment will have an adverse economic and educational effect because it will greatly reduce Prosper's tax revenues.
The evidence as to the effect of detachment on Prosper's tax revenues is conflicting. In support of detachment, McKinney offered the testimony of an educational consultant who studied the fiscal effect of detachment on Prosper and concluded that it would be negligible. McKinney further presented evidence that Prosper would lose 13.6% of its students, but only 8.71% of its taxable property. This indicates that Prosper's "taxable value per student" would actually increase. Prosper's experts, on the other hand, testified that detachment would result in a loss of property valued at $12 million, and a potential future loss of $4 million in annual tax revenues.
This great disparity is easily explained. The nonresidential tract in the territory involved is currently classified as agricultural land, and valued for tax purposes accordingly. However, this land is slated for commercial development, which would substantially increase its tax value. Thus, while the current effect of the detachment may be negligible, the future effect could be significant.
The county commissioners reasonably concluded from the above evidence that the detachment would not significantly and adversely impact Prosper's tax base. In this regard, it is important to note that Prosper's figures were based on projections of the nonresidential tract's potential tax value, fifteen to twenty years from now. These figures are highly speculative. The county commissioners reasonably disregarded the evidence of potential revenues and opted to place significance on the evidence of current tax values. We hold, therefore, that the county commissioners' finding as to the effect of detachment on Prosper's tax base is supported by substantial evidence.
D. Allocation of Indebtedness
Prosper complains that the detachment order failed to allocate Prosper's indebtedness between Prosper and McKinney. The county commissioners' order states that "the allocation of the indebtedness of the two districts ... is intentionally not made a part of this Judgment, but shall be forthcoming from this Court within a reasonable period of time." The state commissioner specifically approved of this aspect of the detachment order. Prosper maintains that the county commissioners erred by failing to allocate the indebtedness in their original order, or within a reasonable time after the order was issued. We disagree.
Section 19.022(h) requires the allocation of the indebtedness of the district from which the territory is to be detached to the receiving district. Tex.Educ.Code Ann. § 19.004 (Supp.1990). But, this does not mean that county commissioners must allocate the indebtedness in the detachment order. In fact, they may reserve that determination for a future date. Trustees of Cranfills Gap Consol. School Dist. v. Board of County School Trustees, 178 S.W.2d 537, 541 (Tex.Civ.App.1944, writ ref'd); Prosper Indep. School Dist. v. Collin County School Trustees, 51 S.W.2d 748, 750 (Tex.Civ.App.1932), aff'd, 58 S.W.2d 5 (Tex.Com.App.1933) ("Prosper I").
The detachment order in Prosper I stated that "this order is made subject for [sic] the right of the County Board of Trustees to make any lawful adjustment of any outstanding indebtedness of said districts ... at such future time as the board may see fit to determine the matter and enter necessary orders." 51 S.W.2d at 749. The Prosper I court held that the detachment was valid even though the county commissioners did not allocate the indebtedness at the same time that they approved the detachment. 51 S.W.2d at 750. Similarly, we hold that the detachment order in this case is valid.
We will not address Prosper's contention that the county commissioners have violated their goal of allocating the indebtedness within a "reasonable time." Prosper is improperly raising this point on appeal, without having sought relief from the *667 county commissioners, the state commissioner, and the district court. Prosper must exhaust its administrative remedies before seeking relief in this court. Tex. Civ.Stat.Ann. art. 6252-13a, § 19(a) (Supp. 1990).
We further disagree with Prosper's contention that a subsequent allocation of indebtedness would not be appealable. Clearly, Prosper would be entitled to an appeal of the commissioners order just as Prosper is entitled to an appeal of any other final administrative order.
E. Approval of the Annexation
Prosper next complains that the state commissioner's finding of fact number 4 is "contrary to the evidence." Finding of fact number 4 states that "the territory described by the detachment and annexation petition was the same territory as that approved for proposed annexation by the McKinney trustees." The McKinney board approved the annexation on June 19, 1986, and then ratified that decision on October 31, 1986. Apparently, Prosper's complaint is that the McKinney board did not approve a metes and bounds description of the territory, and that the territory it did approve differed from that described in the petition. Prosper's contentions lack merit.
First, a receiving board is not required to approve a metes and bounds description in connection with an annexation proceeding. The version of section 19.022(c) in effect at the relevant time states that a "proposed annexation must be approved by a majority of the board of trustees of the receiving district." 1983 Tex.Gen.Laws ch. 285, § 1, at 1386 [Tex. Educ.Code § 19.022(c), since amended]. This section makes no mention of a metes and bounds description. Therefore, the plain language of the statute requires only that the receiving board approve the fact of annexation.[2]
Second, a receiving board is not required to approve a specific territory in connection with an annexation proceeding. This is a corollary of the rule regarding metes and bounds. The plain language of the statute does not in any way require a receiving board to address a territory description. Because the receiving board is required to approve only the fact of annexation, we do not find any significance in Prosper's allegation regarding finding of fact number 4.
Third, even if a receiving district must approve a territory description, substantial evidence exists to support the finding of fact. The only support for Prosper's contention is the fact that the McKinney board did not have a metes and bounds description in front of it on June 19, 1986, when it first voted on the annexation. However, on October 31, 1986, when the board ratified its June 19th decision, it did have a correct metes and bounds description. Moreover, the McKinney board specifically proclaimed in the ratification that the territory it considered was the same as that considered on June 19th. Therefore, the McKinney board did eventually approve the annexation of the same territory as that described in the petition.
Finally, we do not agree with Prosper's related contention that the McKinney board exceeded its authority in approving the annexation because of the variance in the territory descriptions. As discussed above, the McKinney board was not required to approve a specific territory description *668 and, even if it were so required, it did eventually approve an accurate description.
F. Alleged Bad Faith of the Commissioners
Finally, Prosper alleges that the trial court erred in upholding the detachment because the county commissioners acted in bad faith. We disagree.
A detachment order may be overturned only if the county commissioners' decision was tainted by fraud, bad faith, or abuse of discretion, or if the decision is not supported by substantial evidence. Central Educ. Agency v. Upshur County Comm'rs Court, 731 S.W.2d 559, 561 (Tex. 1987). Prosper apparently bases its allegation of bad faith on the undisputed fact that the commissioners took an informal preliminary vote before the public meeting on the detachment and annexation petition. Prosper fails to cite any authority for its contention that the preliminary vote establishes bad faith. Accordingly, this point of error is waived. Rayburn v. Giles, 182 S.W.2d 9, 13 (Tex.Civ.App.1944, writ ref'd).
Moreover, even if Prosper had not waived this point, we do not agree that the mere taking of a preliminary vote is evidence of bad faith or that it otherwise tainted the decision-making process. See Board of Trustees v. Cox Enterprises, Inc., 679 S.W.2d 86, 89-90 (Tex.App.1984), aff'd in part, rev'd in part on other grounds, 706 S.W.2d 956 (Tex.1986); Rock Island Indep. School Dist. v. Colorado County Bd. of School Trustees, 423 S.W.2d 665, 671 (Tex.Civ.App.1968, writ ref'd n.r.e.) (holding that prior agreement between county commissioners did not disqualify them from participating in vote on annexation petition).
CONCLUSION
In summary, we conclude that the trial court correctly affirmed the order of the commissioner of education. We overrule all of Prosper's points of error and affirm the judgment of the trial court.
GAMMAGE, J., not participating.
NOTES
[1] In reviewing a substantial evidence point, we are concerned not with the correctness of the administrative order, but with its reasonableness. Firemen's and Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984).
[2] The legislature amended section 19.022(a), effective August 31, 1987, to require that a petition requesting detachment and annexation be presented to the board of trustees of both districts. 1987 Tex.Gen.Laws, ch. 795, § 3, at 2784 [Tex.Educ.Code Ann. § 19.022(a) (Supp.1990)]. Section 19.022(b)(2) requires that an annexation and detachment petition contain a metes and bounds description of the subject territory. Tex.Educ.Code Ann. § 19.022(b)(2) (Supp.1990). Thus, in the future, school boards must necessarily approve a metes and bounds description.
Section 8 of the amendatory act makes this change applicable only to boundary changes initiated on or after June 1, 1987. 1987 Tex. Gen.Laws, ch. 795, § 8, at 2784. With exceptions not applicable here, prior law governs changes initiated before that date. Id. The boundary change in this case was initiated in 1986, before the amendment. Therefore, this case is governed by prior law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455481/ | 393 F. Supp. 2d 1065 (2005)
Antwan ATKINS, Plaintiff,
v.
THE BREMERTON SCHOOL DISTRICT, Elizabeth Finin, et al., Defendants.
No. C04-5779RBL.
United States District Court, W.D. Washington.
March 14, 2005.
Harold Hudson Franklin, Jr., Michael Diliza Nkosi, Renton, WA, for Plaintiff.
Michael Barry Tierney, Michael B. Tierney PC, Diana Virginia Blakney, Mercer *1066 Island, WA, Jerry J. Moberg, Ephrata, WA, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
LEIGHTON, District Judge.
1. Summary.
This matter is before the court on defendants' Motion for Partial Summary Judgment. [Dkt. # 9] Defendants seek dismissal of Plaintiff's state law claims, for failure to comply with the pre-claim notice requirements of Chapter 4.96 RCW.
The case involves an incident at Renaissance High School in Bremerton, where the Plaintiff (Antwan Atkins) was a student and Defendant Elizabeth Finin was a teacher. The parties agree that on or about November 20, 2002, on school grounds and during school hours, Ms. Finin referred to Atkins and two other students as "porch monkeys" and asked them to move from the steps of a portable classroom. She claims she did so in a joking manner, without knowing or intending that the plaintiff, an African American, would perceive the comment as a racial slur. According to the plaintiff, the remark was repeated a second time as Ms. Finin left the portable classroom.
Plaintiff confronted Ms. Finin and she apologized. Plaintiff, Ms. Finin, the principle, Mr. Atkins' mother, and an "advocate," Daryl Fields, met shortly thereafter to discuss the incident. Plaintiff Atkins remained in Defendant Finin's English class for the remainder of the school year, apparently without incident.
On September 23, 2003, Plaintiff's counsel Michael Noski wrote a letter to the Bremerton School District, related to the incident described above. He erroneously stated that the incident had occurred in March, 2003, and asserted claims for defamation, negligent infliction of emotional distress (on behalf of Plaintiff and his mother), and discrimination based on race in violation of Title VI of the Civil Rights Act. The letter was addressed only to the School District, and was not sent to any particular person. It was not sent to Elizabeth Hyde, who was the School District's Superintendent and the person designated by it to receive claims for damages under 4.96.020(2). However, Ms. Hyde acknowledges that she did receive the letter.
The letter demanded a total of approximately $63,000 to settle all of Plaintiff's (and his mother's) claims arising from the incident. It did not reference the pre-claim notice statute, was not verified by the plaintiff(s), and did not contain other information about the plaintiffs or their claims. (A copy of Mr. Noski's letter is attached the Declaration of Elizabeth Hyde as Exhibit 1[Dkt. # 12]).
The Defendant School District acknowledged receipt of the letter and sought additional information about the alleged emotional injuries. It is not clear what, if anything, occurred thereafter. On November 17, 2004, Plaintiff Antwan Atkins commenced this action against the School District, Ms. Finin, and other individuals alleged to have participated in the actionable conduct and its aftermath.
Defendants seek dismissal of Plaintiff's state law claims, arguing that he was required to and failed to comply with the notice requirements of Chapter 4.96 RCW.
2. Summary Judgment Standard.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fat which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions *1067 on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable [fact finder] could return a [decision] in its favor." Triton Energy, 68 F.3d at 1222.
3. Discussion.
RCW 4.96.020 applies to claims against all local governmental entities. RCW 4.96.020(2) requires each such entity to designate a person upon whom claims for damages must be served. RCW 4.96.020(3) provides for pre-claim notice of any claim for damages:
(3) All claims for damages arising out of tortious conduct must locate and describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which the claim is required to be filed, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant.
(Emphasis added). RCW 4.96.020(4) provides that no claim may be filed against a local governmental entity less than 60 days after the pre-claim notice described above.
Filing a pre-claim notice under RCW 4.96.020 is a condition precedent to commencing an action seeking damages from the entity based on its tortious conduct, or the tortious conduct of its employees. Substantial compliance with the "content" requirements of the notice is required, though the statute is to be construed liberally. On the other hand, strict compliance with the pre-claim filing procedures is required. See Medina v. Public Utility Dist. No. 1, 147 Wash.2d 303, 53 P.3d 993 (2002); Reyes v. City of Renton, 121 Wash.App. 498, 86 P.3d 155 (2004).
The issue presented by this Motion is whether Mr. Noski's letter of September 23, 2002 satisfies the requirements of Chapter 4.96 RCW. Viewed in the light most favorable to the Plaintiff, the letter's deficiencies are: it was not sent to Ms. Hyde, it was not verified by the Plaintiff, it did not purport to act as a pre-claim notice under RCW 4.96.020(3), it referenced the incorrect incident date, and it did not include Mr. Atkins' current or prior address.
These last three issues relate to the content of the notice, not to the claims filing procedure itself. The court assumes without holding that despite these deficiencies, Mr. Noski's letter substantially complies with the statutory requirements, and that the failures asserted by the defendants as to the contents of the notice are not fatal.
*1068 On the other hand, the first two deficiencies failure to send the letter to Ms. Hyde, and the fact that the letter was not verified are not "content" issues. They are instead part of the claim filing procedure itself, more akin to the 60 day requirement of RCW 4.96.020(4). "Failure to strictly comply with statutory filing requirements leads to dismissal of the action. This court is obliged to give full effect to the plain language of the statute even when the results of doing so may seem unduly harsh." Reyes, 121 Wash.App. at 502, 86 P.3d 155.
In Reyes, the Washington Court of Appeals specifically held that the failure to verify a notice of claim under RCW 4.96.020(3) is fatal to that claim. Here, it is undisputed that Mr. Atkins did not verify his claim, and he does not argue that he was excepted from the statute's verification requirement.
Instead, Mr. Atkins argues that his notice was or should be effective for a variety of equitable reasons. First, he asserts that the school district is estopped from asserting his failures as a defense, because it engaged in "affirmative misleading action" which precluded Atkins from properly filing, or persuaded him that he did not have to. This argument is based on Plaintiff's claim that "it is the practice of the Defendants to file a claim form on behalf of injured students," and (apparently) that this "practice" misled Mr. Atkins such that he failed to verify the letter sent by Mr. Noski. This argument fails for several reasons. First, it has not been established that the school district's "practice" is to file claims against itself on behalf of injured students. Second, even if it had done so, plaintiff has established no connection, between that prior conduct and his failure to verify his claim in this case. Under Plaintiff's logic, no notice at all would have been required, and he would have been free to simply and immediately commence this action, without regard to any of the requirements of Chapter 4.96 RCW. Finally, and in any event, there is no legal authority for the proposition that pre-incident acts can result in a waiver or estoppel from asserting the claims filing procedure as a defense. The authority cited by the Plaintiff, Dyson v. King County, 61 Wash.App. 243, 809 P.2d 769 (1991), does not address a similar factual situation. Instead, Dyson involved a defendant who failed to assert the plaintiff's failure to comply with the filing procedure in its answer and while subsequently defending the case:
Here, the City appeared and filed its answer without mentioning Dyson's failure to comply with the claim filing ordinance. It proceeded to defend the case, but waited until the applicable statute of limitations had run on each of the underlying incidents before raising the defense for the first time in the form of a summary judgment motion to dismiss.
Dyson, 61 Wash.App. at 245, 809 P.2d 769. Under those facts, the defendant was estopped from asserting the plaintiff's failure as a defense. The facts in this case are wholly different: the defendants did assert the defense in their Answer, and they did not delay in affirmatively asserting the defense as a bar, in the form of this motion.
Plaintiff's second equitable argument fails for similar reasons. Plaintiff's counsel claims that he has asserted and resolved claims against the Bremerton School District in the past without complying with the requirements of RCW 4.96.020. He apparently argues that the district has waived the filing requirements for all claims, or at least for all claims in which Mr. Noski represents the plaintiff. There is no legal or logical support for such a conclusion. A party's failure to assert an affirmative defense for example, *1069 the statute of limitations in one case does not mean that it has waived its right to assert the defense in another.
Plaintiff's third equitable defense is related, and suffers from similar deficiencies. Plaintiff argues that the district "treated the claim as properly filed" and that it therefore should be "barred" from asserting that it was not. Plaintiff cites only an unreported opinion [Holmstrom v. Bellingham, 1999 WL 71983, 1999 Wash.App. LEXIS 279] for this proposition, but the holding in that case, like the holding in Dyson, depended upon the defendant's failure to assert the defense during "two years of litigation." No such delay is present in this case. The Defendant's Answer contained the affirmative defense of failure to comply with Chapter 4.96 RCW, and this motion, seeking adjudication of that issue, was filed promptly thereafter. Based on the Plaintiff's failure to comply with the requirements of RCW 4.96.020, his state law tort claims[1] against the School District must be DISMISSED.
The remaining issue is Plaintiff's argument that his failure to comply with Chapter 4.96 RCW does not affect his intentional tort claims against Ms. Finin (for defamation and outrage) and the other individual defendants (for outrage). Mr. Atkins argues that the requirements of Chapter 4.96 RCW apply only to employees "performing or purporting in good faith to perform their official duties." See Medina, 147 Wash.2d at 316, 53 P.3d 993. Based on this premise, he states that Ms. Finin was not so acting when she called the plaintiff a "porch monkey."
As an initial matter, there can be no doubt that the other individual defendants were performing, or purporting in good faith to perform, their official duties when they investigated and ultimately denied the Plaintiff's claim based on the comment. Plaintiff does not contend otherwise. The Plaintiff's claims against the other individual defendants is subject to the notice requirements of Chapter 4.96 RCW. In addition to the deficiencies described above, Mr. Noski's "notice" letter did not even address these defendants or their alleged tortious conduct. The tort claims against them must therefore be DISMISSED. The remaining issue, then, is whether the Plaintiff has established for purposes of summary judgment that Defendant Finin was not acting or purporting in good faith to act in furtherance of her official duties when she made the comment. Plaintiff states that she was not, arguing that because the torts were intentional, they were outside the scope of her employment. Thus, he reasons, Ms. Finin's conduct would not subject the District's funds to payment of any judgment, and the notice requirements of Chapter 4.96 RCW do not apply to his claims against her.
This reasoning is circular. Accepting it would mean in most cases that there would not be vicarious liability, as any employer would argue successfully that any conduct exposing it to liability was outside the scope of the employee's employment. Furthermore, and in any event, this argument has been rejected in Washington.
In Robel v. Roundup, 148 Wash.2d 35, 59 P.3d 611 (2002), the Washington Supreme Court held that an employer is vicariously liable for the intentional conduct of its employees, even if it is tortious, so long as it occurs in the scope of the individual's employment. The conduct at issue there, as here, was offensive name calling at the place of business, during business hours, while on the job. Id. at 52, 59 P.3d 611.
*1070 Mr. Atkins has not established, and it does not appear that he could establish, that Ms. Finin's conduct was beyond the scope of her employment. If the conduct was tortious, the School District would be vicariously liable for it, and its funds would be in jeopardy. For this reason, the notice requirements of Chapter 4.96 RCW apply to the claims against her. As discussed above, these requirements were not satisfied as a matter of law, under recent Washington authority directly on point. Plaintiff's state law intentional tort claims against Ms. Finin are therefore DISMISSED. Defendants' Motion for Partial Summary Judgment [Dkt. # 9] is GRANTED.
NOTES
[1] The Defendants do not seek summary dismissal of the Plaintiff's Title VI claim, and the court makes no ruling on the applicability of the RCW 4.96.020 defense to this claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593395/ | 155 Mich. App. 531 (1986)
400 N.W.2d 320
In re SPRITE
Docket No. 91195.
Michigan Court of Appeals.
Decided October 20, 1986.
David H. Sawyer, Prosecuting Attorney, and David R. Gersch, Assistant Prosecuting Attorney, for petitioner.
Jerry M. Beurkens, for respondent.
Before: HOOD, P.J., and D.E. HOLBROOOK, JR., and W.R. PETERSON,[*] JJ.
PER CURIAM.
Respondent Terri Sprite appeals as of right from the probate court's opinion and order which terminated her parental rights to her minor children, Jennifer born November 17, 1978, and Michelle born May 4, 1981. The children's natural father, also a respondent below, does not appeal from the termination of his parental rights. On appeal respondent challenges the probate court's extremely comprehensive and thoughtful sixteen-page opinion that concluded that there was clear and convincing evidence to support the decision to terminate respondent's parental rights and that termination was in the best interest of the children. We hold that the probate judge's factual findings are amply supported by the record, and we affirm.
The appropriate standard of review in cases *533 involving termination of parental rights is whether the findings of the probate court are clearly erroneous. MCR 2.613(C); In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). A finding is "clearly erroneous" 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. Cornet, supra; Mazur v Blendea, 413 Mich 540, 547; 321 NW2d 376 (1982); Tuttle v Dep't of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
The probate court made the following findings of fact:
1. That the father of the children, Leonard Paul Sprite, has been convicted of criminal sexual conduct two, concerning his daughter, Michelle; and therefore, has demonstrated his inability and unfitness to be a proper parent to have the future custody of his children. He has denied that he sexually abused them in the hearing that was held on the termination petition; but the fact remains that he pled guilty in Circuit Court to the conviction and therefore, had to give the circuit judge sufficient facts for the circuit judge to have accepted a plea to such a crime; therefore, the credibility of his testimony that the court heard today is very little, at best.
2. That from the time the Court took jurisdiction in March of 1983 until today; [sic] the status of the parents remains basically the same in that mother still has had no suitable place of residence, having moved four times within the past year; does not have a steady source of income; and father is presently residing in jail.
3. That after the children were returned home in July of 1984, it was just several months later that the children were observed having head lice; their hygiene was extremely poor; the parents were failing to cooperate in counseling; and again, had no stable source of income.
*534 4. That every treatment plan that was utilized during the course of the past several years involved having the parents in parenting classes and life skill classes at The Family Living Center. Their attendance, at best, was inconsistent in attending the classes, and when they were there they were, many times, disruptive and failed to cooperate in the parenting classes. It was testified that the parents did have the capabilities of gaining adequate parenting abilities; and at one time did so and the children were returned, but they soon slid back into their old ways.
5. That from the psychological evaluations of Dr. Piersma and from his testimony, it appears that neither the father nor the mother are amenable to treatment and that regardless of how many parenting classes they attend nor how much counseling they attend this is ever going to make a great deal of difference in how they parent their children. It further seems, that they have a chronically unstable relationship in that they hold their needs above that of their children and that this is never going to change.
6. That it appears that the children have been in foster care from a period of February of 1983 through the beginning of July of 1984, which is seventeen months; and then again, have been in temporary foster care from April of 1985 through today, which is another ten months. These two together add up to twenty-seven months of being in foster care. Michelle is not quite five years old; therefore, over half of her life has been in foster care. Jennifer, in addition to these times in foster care, was in foster care in 1980 for almost a year's period of time. So, she has for all practical purposes been in foster care for three years. The Court makes the finding that such long-term foster care is detrimental to the children and based on all of the testimony that it has heard, the parents are never going to change.
7. Lastly, the best interests of the children require that they receive permanency, now, with a permanent family wherein they can receive the *535 love and nurturing they require and deserve and where they can be together as siblings without further disruption in their lives; that not to terminate parental rights and free them for adoption while waiting for a parent to be released from prison or to, in effect, get their act together after being given three years is excessive.
The probate court terminated respondent's rights on the basis of three subsections within § 19a of the juvenile code:
Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
* * *
(d) A parent or guardian of the child is convicted of a felony of a nature as to prove the unfitness of the parent or guardian to have future custody of the child or if the parent or guardian is imprisoned for such a period that the child will be deprived of a normal home for a period of more than 2 years.
(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
(f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months. [MCL 712A.19a; MSA 27.3178(598.19a).]
Respondent argues on appeal that the court abused its discretion by terminating her parental rights on the basis of neglect. She asserts that the evidence did not establish that there was a serious *536 threat of neglect of the children for the long-run future. She also contends that the probate court abused its discretion in terminating her parental rights because petitioner failed to show that she would be unable to establish a proper home for the children within the following twelve months.
The probate court terminated the father's parental rights pursuant to subsection (d). That subsection provides that if a parent is convicted of a felony of a nature as to prove the unfitness of the parent, the court may take permanent custody of the child. This subsection does not apply directly to respondent mother since she herself was not guilty of the sexual assault of her daughters.
However, this Court has determined that the inability of a parent to protect her children from sexual assault and the failure to support children who have been sexually assaulted by preventing further contact with their assailant are grounds for termination. In re Rinesmith, 144 Mich App 475, 483; 376 NW2d 139 (1985), lv den 424 Mich 855 (1985). There was no evidence in this case that respondent was aware that her husband was sexually abusing her daughters. However, after the sexual abuse was made known to her, she offered little or no support to her two daughters, and allowed the father to continue seeing the girls despite a court order otherwise.
Now that her husband is incarcerated on sexual assault charges, she has taken a boyfriend who has a history of abusive and assaultive behaviors. He has lost his own child as a result of neglect. Respondent has demonstrated an extreme lack of sensitivity for her children's emotional well-being, and has demonstrated her inability to provide for their emotional needs and to provide a safe environment for her children.
The court concluded that as a result of her *537 activities and actions, respondent's parental rights should be terminated pursuant to subsections (e) and (f). Although the amount of neglect necessary to justify termination of parental rights under § 19a(e) is not capable of precise or exact definition, the entry of an order taking permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the children for the long-run future. Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958); In the Matter of Bidwell, 129 Mich App 499, 505; 342 NW2d 82 (1983). The word "neglect" as used in the statute entails some degree of culpability by way of either intentional or negligent disregard of the children's needs. In the Matter of Tedder, 150 Mich App 688, 698; 389 NW2d 149 (1986).
The evidence in this case demonstrates that respondent has both intentionally and negligently disregarded her children's needs. The children were subjected to significant traumatic events including a very unstable home, frequent and intense parental disputes, sexual abuse by the father, observation of sexual activity in the home, limited proper stimulation in the home, chronic deprivation of a clean, consistent and protective environment, lack of food in the home and lack of significant medical attention. Respondent has demonstrated by her behavior over a significant period of time that she is unwilling to correct the deficiencies, and that she is unable to protect her children.
Respondent relies heavily on the case of In the Matter of Moore, 134 Mich App 586; 351 NW2d 615 (1984), for the proposition that the evidence against her individually or collectively is insufficient to support termination. Moore is distinguishable from this case. In Moore, the mother relinquished *538 her children voluntarily to the Department of Social Services when she was temporarily evicted from her apartment. This Court held that her failure to participate in treatment program plans and the fact that she repeatedly moved was insufficient to terminate her parental rights because no neglect had been established.
In this case there is clear and convincing evidence presented that the children were neglected. The home was subject to continuing food crises because of the parents' unwillingness to comply with various requirements of free food programs, there was limited or no income in the home, there was some deterioration of the children's health care, there were extremely unsanitary conditions in the home, indiscriminate sexual activity between the father, his girlfriend and the mother before the children, and the children were subject to sexual abuse. While at one point respondent did voluntarily relinquish her children to the Department of Social Services, there all similarities with Moore end.
Every attempt has been made by various helping agencies within the community to assist respondent. It was one expert's opinion that counseling had been unsuccessful in the past and would continue to be unsuccessful into the future because of respondent's own personality make-up. The conclusion of the probate court that the statutory grounds for termination were met in this case is not clearly erroneous, and the probate court's conclusion that the best interests of the children require that respondent's parental rights be terminated is certainly not clearly erroneous.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1593404/ | 400 N.W.2d 153 (1987)
Joseph Frank WHITE, Petitioner, Respondent,
v.
STATE of Minnesota, Appellant.
No. C6-86-999.
Court of Appeals of Minnesota.
February 3, 1987.
Review Denied March 25, 1987.
*154 Kimball D. Mattson, Larry A. Kimball, Finn & Mattson, Walker, for respondent.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Earl E. Maus, Cass Co. Atty., Jodie A. Metcalf, Asst. Cass Co. Atty., Walker, for appellant.
Heard, considered, and decided by LESLIE, P.J., and FOLEY and RANDALL, JJ.
OPINION
FOLEY, Judge.
This appeal is from an order granting post-conviction relief to respondent Joseph White. After holding Minn.Stat. § 590.01, subd. 3 (1984) unconstitutional, the post-conviction court resentenced White, even though it was expressly unable to make the requisite statutory findings that White's early release would not present a danger to the public and would not be incompatible with the welfare of society. Appellant State of Minnesota challenges the court's actions and appeals pursuant to Minn.Stat. § 590.06 (1984). We reverse.
FACTS
On April 19, 1980, White kidnapped two juvenile females and held them in his vehicle for several hours until they escaped. While out on bail, he allegedly committed another assault with a knife.
On August 25, 1980, White entered a plea of guilty to kidnapping in violation of Minn.Stat. § 609.25, subd. 1(3) (1978). In exchange for his plea, the State agreed to dismiss nine other counts arising out of the kidnapping incident and to dismiss the complaint issued in connection with the assault White allegedly committed while out on bail. In September 1980, White was sentenced to zero to 40 years, the indeterminate sentence for the kidnapping offense. After review of his case by the Minnesota Corrections Board in May 1981, White was removed from the matrix and assigned expiration of his sentence, with a target release date in 2007; had he been sentenced under the guidelines, White would have originally received a presumptive sentence of only 41 months in prison.
White filed this petition for post-conviction relief in February 1986, seeking resentencing. A hearing was held in May 1986 at which White testified and evidence was presented. At the close of the evidence, the post-conviction court issued its decision orally on the record; that decision was reduced to writing in a "Post Conviction Relief Order" dated May 23, 1986.
In that order, the court stated that it was "unable to make a specific Finding of Fact, as required by [Minn.Stat. § 590.01, subd. 3], that the release of the petitioner prior to his release under the sentence currently being served would not present a danger to the public and would not be incompatible with the welfare of society." The court nevertheless resentenced White to a determinate sentence of 150 months, "27 months more than a triple upward durational departure" under the guidelines, because in its opinion "the heavy burden being placed upon this defendant in comparison with people who have been and are being sentenced [under the guidelines] for crimes as severe as second degree murder, does not pass constitutional muster." The State appeals.
*155 ISSUES
1. Does the evidence support the post-conviction court's conclusion that White failed to demonstrate that his early release would not present a danger to the public and would not be incompatible with the welfare of society?
2. Is Minn.Stat. § 590.01, subd. 3 (1984) unconstitutional as applied to White because it denies him equal protection of the law?
ANALYSIS
I
Minn.Stat. § 590.01 (1984) provides:
Subd. 3. A person who has been convicted and sentenced for a crime committed before May 1, 1980 may institute a proceeding applying for relief under this chapter upon the ground that a significant change in substantive or procedural law has occurred which, in the interest of justice, would be applied retrospectively, including re-sentencing under subsequently enacted law.
No petition seeking re-sentencing shall be granted unless the court makes specific findings of fact that release of the petitioner prior to the time he or she would be released under the sentence currently being served does not present a danger to the public and is not incompatible with the welfare of society.
Id.
A petitioner seeking resentencing under this statute has the burden of proof. Smith v. State, 317 N.W.2d 366, 367 (Minn. 1982). In determining whether a petitioner meets this burden, a post-conviction court may consider the circumstances of the offense underlying the conviction along with other factors including the petitioner's criminal record and/or recidivism, and his behavior in prison. State v. Boman, 320 N.W.2d 77, 78-79 (Minn.1982); State v. Champion, 319 N.W.2d 21, 23 (Minn.1982); Stahlberg v. State, 319 N.W.2d 12, 13 (Minn.1982).
The evidence in this case shows that White has a long criminal history of violent crimes dating back to 1972. He pleaded guilty to the current offense after admitting that he kidnapped two juvenile females, forced them to undress, sexually assaulted both, and threatened to kill them and himself. The juveniles were able to escape after several hours only by running naked from White's car.
At the post-conviction hearing, White testified that while in prison he has participated in a sexual offender treatment program and has been attending Alcoholics Anonymous meetings for the past 18 months. He further testified that he has completed his GED and has been accepted at three Minnesota colleges. White also submitted documentary evidence, however, which showed that he has committed two assaults while in prison, the most recent in May 1985, and that as of June 1985 prison staff were still concerned about his response to situations in which he believed he was emotionally or physically threatened. The State submitted a psychological report dated October 1984, which stated that White "acts usually in gentle, non-violent ways, but feels competitive and aggressive at deeper levels" and that an "[o]utburst of pugnacity would not be surprising."
Based on the evidence submitted, the post-conviction court concluded that it was "unable to make" the requisite findings that White's release would not present a danger to the public and would not be incompatible with the welfare of society. This conclusion is amply supported by the evidence, most of which White introduced. White therefore has not met his burden, and his failure to do so precludes resentencing under Minn.Stat. § 590.01, subd. 3.
White argues that at the very least, the matter should be remanded. We disagree. White was given ample opportunity to present evidence at the first hearing, and remand for another hearing would serve no purpose.
*156 II
In spite of its inability to make the requisite statutory findings, the trial court nevertheless resentenced White because it found that the burden placed on him by the statute denied him equal protection of the law and was unconstitutional.
Criminal statutes must not prescribe different punishments "`for the same acts committed under the same circumstances by persons in like situation.'" State v. Witt, 310 Minn. 211, 215, 245 N.W.2d 612, 616 (1976) (quoting 16A C.J.S., Constitutional Law, § 564). The crime for which White was sentenced was committed 12 days before May 1, 1980, the day the guidelines became effective. White argues that the burden placed on him to justify resentencing under the guidelines creates a sentencing disparity between himself and a person committing the same crime after May 1, 1980, resulting in a denial of equal protection.
A similar argument was made in the recent case of Bettin v. State, 396 N.W.2d 249 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Dec. 17, 1986). In Bettin, the petitioner argued that he had been denied equal protection because he was required to serve a longer sentence under the determinate sentencing scheme than he would have served under the guidelines. In rejecting the petitioner's argument, this court noted that the petitioner's "proposed `classes' for equal protection analysis receive disparate sentences, but the sentences were imposed on each pursuant to the lawful statutes effective at the time of sentencing" and that "[t]he appropriate analytical focus should not be the different sentences, but whether each group receives [disparate] treatment in the area of early release." Id. at 251-52.
In this case, White has not been treated differently than an individual who has been sentenced under the guidelines. Both have the same burden and must meet the same criteria for resentencing under Minn.Stat. § 590.01, subd. 3. Nor is it a denial of equal protection to impose upon him a sentence which is longer under the determinate sentencing scheme than under the guidelines. In Bettin, this court concluded that a rational basis existed for the different sentencing schemes and that "[t]o hold otherwise would impermissibly deny to the legislature the power to ever increase sentences." Id. at 253 (emphasis in original).
DECISION
The post-conviction court erred in resentencing White when he failed to show that his early release would not be a danger to the public and not be incompatible with the welfare of society. The court's decision resentencing White is therefore reversed and the prior sentence is reinstated.
Reversed and prior sentence reinstated.
RANDALL, Judge, concurring specially.
I concur with the majority that Minn. Stat. § 590.01, subd. 3, is clear and requires certain specific findings of fact by the trial court before appellant may be resentenced to a shorter sentence. However, once finding that, I would have remanded to the trial court with directions to conduct another hearing and to allow both sides to present any additional evidence they may deem appropriate because of our decision.
The majority indicates that appellant was given an opportunity to present whatever evidence he felt appropriate at the first hearing. That may be, but in light of the trial court's careful reasoning in its order as to why it felt appellant was entitled to be resentenced, even though a certain specific finding could not be made, I deem it appropriate to allow the trial court to try once more to consider appellant's petition now that we have made it clear that, at least until changed, the present wording of Minn.Stat. 590.01 is controlling.
The trial court correctly pointed out that its resentencing to a determinative sentence of 150 months gave full recognition *157 to the gravity of the offense.[1] The trial court felt, for several reasons, that, once the severity of the offense was recognized, it was not essential, at least in this case, that the court make a finding that the petitioner, down the road, would not "present a danger to the public." The trial court indicated that no one could see several years down the road and predict what a person would or wouldn't do, and then pointed out that no similar burden is placed on a defendant whose time for release has come. After you have served your full sentence, you are entitled to be released, and there does not have to be a specific finding that in the future you will be a good person and not be a danger to anybody. The general sentencing statutes simply require you to serve your full time and then you get out.
However, this resentencing statute is clear, not ambiguous, and any disagreement with it or proposed changes will have to come through the legislative process and cannot be done by judicial fiat.
While we are upholding the validity and specificity of the controlling statute, I feel that the trial court should be accorded the full opportunity, on remand, to reconsider this matter.
NOTES
[1] The offense was committed on April 19, 1980. Had it been committed on May 1, 1980, appellant would have come under the Minnesota Sentencing Guidelines. Under the Guidelines, as the majority notes, the presumptive sentence was 41 months, and thus the sentence the trial court imposed of 150 months was more than a triple upward durational departure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1591854/ | 70 S.W.3d 532 (2002)
STATE of Missouri, Respondent,
v.
Jerome BATES, Appellant.
No. WD 59307.
Missouri Court of Appeals, Western District.
January 22, 2002.
Motion for Rehearing and/or Transfer Denied March 5, 2002.
Application for Transfer Denied April 23, 2002.
*533 Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for Respondent.
Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.
Before EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 5, 2002.
VICTOR C. HOWARD, Judge.
A jury convicted Jerome Bates of attempted statutory rape in the second degree and attempted statutory sodomy in the second degree. He brings two points on appeal. In his first point, he alleges that the evidence was insufficient to show he took a "substantial step" toward the commission of those offenses. Specifically, he contends that "his correspondence from prison with the victim, without more, was insufficient to be strongly corroborative of the firmness of his purpose to complete the commission of the offense upon his release from prison." We agree. Finding his first point dispositive, we do not address his second point.
The judgment entered upon defendant's convictions is reversed and defendant is ordered discharged.
Background
On July 13, 2000, a grand jury indicted defendant on one count of attempted statutory rape in the second degree and one count of attempted statutory sodomy in the second degree. On October 3, 2000, the case went to trial. Just prior to trial, the Cole County prosecutor requested leave to file a Second Amended Substitute Information in Lieu of Indictment. This information charged defendant with the same charges as set forth in the indictment but narrowed the time frame for when the crime occurred to a one-year time period and added victim's date of birth. The State charged defendant with attempted statutory rape and attempted statutory sodomy based upon the following actions of defendant:
[B]etween June 27, 1998 and June 27, 2000,[1] ... while incarcerated at the Missouri Department of Corrections, in conversations and letters to [victim], a child under the age of 16, [defendant] repeatedly solicited promises from [victim] that she would have sexual intercourse, anal intercourse and oral intercourse with him upon his scheduled release from prison on June 27, 2000, and supplied her with pornographic pictures and handwritten instructions of how he would have sex with her, and such conduct was a substantial step toward the commission of [the crimes], and was done for the purpose of committing such crimes.
At trial, the State presented evidence including sexually explicit letters, pictures cut from magazines, and pamphlets, which victim testified she began receiving at the age of twelve from defendant while he was in prison. Often times, defendant would send the sexually explicit materials to victim hidden in cards and between paper glued together. Victim testified that defendant had been a father figure to her for most of her life. She and her mother often visited defendant while he was in prison and corresponded with him both on the phone and through letters. Victim did not tell anyone about the sexually explicit correspondence she had with defendant until the day approached when he would be released from prison. She then became *534 scared and informed a counselor of her fears. The counselor contacted the police.
The officer who interviewed victim also questioned defendant about the materials. Defendant at first denied sending victim anything and claimed instead that the materials were intended for victim's mother. After the officer explained the problems with defendant's explanations to him, defendant refused to make eye contact and answered, "I don't know." Defendant was never released from prison before he was charged with the crimes. During the pendency of his case, defendant wrote a letter to the prosecutor acknowledging that he sent victim the letters and materials. He claimed that he did so only because victim had a friend that was receiving letters and naked pictures from a man in prison, and victim had become jealous of this friend. Defendant claimed that he sent the materials to victim "just so she can show her friend. [He] did it so she would not write to some man in prison."
The State's evidence consisted of this correspondence from defendant to victim in addition to witness testimony concerning the correspondence. We have set forth in more detail the specifics of the evidence below in our discussion of whether the evidence was sufficient to sustain defendant's convictions. Defendant moved for an acquittal at the close of the State's case. The court overruled his motion. Defendant did not put on any evidence, and a jury subsequently convicted him as charged. After denying defendant's motion for a new trial, the court found him to be a prior and persistent offender and sentenced him to two ten-year terms of imprisonment on each count, to run concurrently to each other but consecutively with the sentence(s) he was already serving. This appeal follows.
Standard of Review
Upon review of defendant's challenge to the sufficiency of the evidence, we must determine if the State presented sufficient evidence from which a reasonable juror could have found defendant guilty beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc), cert. denied, ___ U.S. ___, 122 S. Ct. 567, 151 L. Ed. 2d 440 (2001). This standard of review requires that we:
"must look to the elements of the crime and consider each in turn.... [The Court is] required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. [The Court] disregard[s] contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, [the Court] consider[s] whether a reasonable juror could find each of the elements beyond a reasonable doubt."
Id. (alterations in original) (quoting State v. Grim, 854 S.W.2d 403, 411 (Mo. banc), cert. denied, 510 U.S. 997, 114 S. Ct. 562, 126 L. Ed. 2d 462 (1993)). Despite our review in deference to the State's evidence, we cannot "`supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.'" Id. (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).
Sufficiency of the Evidence: Substantial Step
In reviewing defendant's claim that the evidence was insufficient to demonstrate an attempt to commit statutory rape in the second degree and an attempt to commit statutory sodomy in the second degree thus warranting submission to the jury, we first consider the statutes under which defendant was charged and convicted. Under *535 Section 566.034.1,[2] "[a] person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age." For purposes of this section, "sexual intercourse" is defined as, "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." § 566.010(4). Under Section 566.064.1, "[a] person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he has deviate sexual intercourse with another person who is less than seventeen years of age." For purposes of this section, "deviate sexual intercourse" is defined as:
any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.
§ 566.010(1). Because defendant was charged with the attempt of both of these offenses, we must also consider the attempt statute, Section 564.011, which states:
A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
Thus, an attempt charge under § 564.011 has two elements: (1) the defendant's purpose to commit the underlying offense, and (2) the defendant's doing of an act which constitutes a substantial step toward the commission of that offense. State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999).[3] Defendant does not dispute the sufficiency of the evidence concerning the "purpose" element. Rather, he contends that the evidence was insufficient to support a finding that he took a substantial step toward the commission of the offenses. We must determine whether defendant's conduct constitutes a "substantial step" toward the commission of the offenses or, in terms of § 564.011, whether his conduct constitutes "any act which ... is strongly corroborative of the firmness of [defendant's] purpose to complete the commission of [statutory rape in the second degree and statutory sodomy in the second degree]."
"What act or conduct will constitute a substantial step will depend on the facts of the particular case." State v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989). The State alleges that defendant's sending of the letters and sexually explicit materials, coupled with his conversations with victim in which he made her promise to have sex with him, constitute an act which was a substantial step toward the attempted statutory rape and sodomy of victim. The evidence offered by the State at trial showed as follows:
In September of 1999, when victim was twelve years old, defendant sent her a letter that included lengthy sexually explicit jokes and told her when he was going to be released from prison. Over the next several months, he sent her more letters *536 with dozens of pictures of naked men and women engaging in vaginal, anal and oral sex. In December of 1999, defendant sent victim a letter that included a drawing of a man entering a woman vaginally from behind. Defendant wrote on this drawing, "I love you so much [victim]" with an arrow drawn toward the man in the picture. He also wrote "your dk feel so good, Jerome" with an arrow drawn toward the woman in the picture. Additional correspondence from defendant to victim included promises that he would take her shopping and give her half of his paycheck, that they would meet at the hotel as she had promised when she left for "work" and she could be back at the time she was supposed to be back, that he would not buy her a Christmas present unless she answered his letter, that he had a present for her but would not give it to her until she answered his letter and told him "something that I want to hear," that victim's "py belongs to me" and that "the other woman who lives with you" told him "that me and you can do whatever we want to." The only other woman living with victim at the time was her mother.
Defendant also sent victim a document entitled "arrest warrant" from "The Court of Love." Defendant typed in at the top "Mr. Jerome K. Bates vs. [victim]." This "warrant" included language such as "anything you say or scream during sexual questioning will be used in your favor in a court of love," and:
In the event of the loss of said document... this court will be forced to plead this case of total unrestrained desire and satisfaction, which will result in further more obscene action against your sweet and sexy body which may include: licking and kissing you until you pass out. I am going to blow your mind in every sexual way imaginable for years to come.
Defendant also sent victim diagrams of various sexual positions, with handwritten notes on them such as "you always did like getting on top of me" with a smiley face, "just let me know the `ways' you want me to make love to you," and "do you think you can hold your leg up like this for me," referencing a particular sexual position. Defendant sent instructions to victim concerning how she was to sneak out of her house as if she were going to school and instead secretly rendezvous with him at a hotel when he was released from prison. He instructed her on how she should lick her finger and put it in her vagina to prepare to have sex with him so it would not be "to [sic] sore," what the anal sex portrayed in the pictures entailed, and the necessity that victim go on birth control when he was released from prison. One color photo of a penis being inserted into a vagina included a note from defendant to victim saying, "that's how this dk going to be in you; don't forget we got to take some pictures of your pretty py." One drawing of a man with a mouth on a woman's vagina included instructions to victim to cut her hair from "around that area" so it would not get in defendant's mouth. Another drawing of the same act said that in two more months victim could "get all this dk." Another drawing of a man entering a woman from behind had an arrow to the man with the word "me" and an arrow to the woman with the word "you."
Defendant also sent victim pamphlets intended to educate teenagers on sex. He wrote instructions to her on the pamphlets such as "I want go on soft" next to instructions on how to put on a condom and "me and you" next to the words "have sex only with each other." In his correspondence with victim, defendant also ordered victim not to have sex with anyone else because he wanted to be her first and threatened *537 to punish her if she did. Defendant repeatedly reminded victim that she had sworn an oath to God to have sex with him, and she had to keep that promise. He told her that he would buy a douche and "rubbers" and that eventually he wanted her to have a baby by him.
In March of 2000, defendant wrote another letter to victim saying that he was disappointed in her, telling her that she "owed" him and that "we got a lot to do when I come back"referring to pornographic pictures he had sent her of naked men and women engaging in various sexual acts. In reference to one of the enclosed pictures he wrote, "this will be us getting down and I know your ahole is going to blow my mind. Let me tell you something, when you and me make a promise, we do not break that promise."
We find that this correspondence from defendant to victim does not legally constitute a substantial step toward statutory rape and statutory sodomy. While it is obvious that through these communications defendant expressed a desire to become sexually active with a young girl, he took no further action beyond this expression. The mere sending of the sexually explicit material and letters to victim, though an abhorrent act, is not sufficient to establish attempt liability for statutory rape and sodomy. This evidence of his desire was not "accompanied by any other corroborative action." Molasky, 765 S.W.2d at 602. Indeed, as the State points out, the law of substantial step attempt does not focus on what has yet to be done, but instead focuses on what a defendant has already done. Id. at 600. Nonetheless, as Molasky instructs, "Missouri cases indicate a substantial step is evidenced by actions, indicative of purpose, not mere conversation standing alone." Id. at 602 (footnote omitted).
In Molasky, the defendant, while in prison, had several conversations with two other inmates to arrange the killing of persons who were in the process of adopting defendant's son. Id. at 599. With them out of the way, defendant felt that his father could gain custody instead. Id. at 602. One of the inmates wore a hidden microphone to tape his conversation with defendant. Id. at 599. During one of the taped conversations, a price for the killing was set at $5,000, a time when the killings could be done was discussed, and defendant emphasized that he wanted the bodies disposed of and that his son should not witness the murders. Id. Defendant never produced an address or place of employment or photo of the intended victims. Id. at 602. Another inmate testified that he was solicited by defendant to perform the murders. Id. at 599. A price was established, a shotgun was to be used and nothing was to occur in front of defendant's son. Id. When the inmate demanded payment before the murders, defendant instructed him to call his father, say he was "Mr. Wonderful" and that he would receive $2,000. Id. Neither inmate took any action to follow through with the murders. Id.
While making it clear it was not suggesting solicitation could never be a substantial step to support an attempt charge, the Supreme Court found that this solicitation was mere conversation not accompanied by any other corroborative action. Id. at 602. The Court specifically mentioned as examples the fact that no concrete arrangements were made for payment, no money changed hands and no identification or photo of the alleged victim was given. Id. There was mere conversation unaccompanied by actions indicative of purpose. Id.
The State attempts to analogize defendant's actions to those of defendant Bolen in State v. Bolen, 731 S.W.2d 453 (Mo.App. *538 E.D.1987). Bolen was charged with sodomy and attempted sodomy for Bolen's simultaneous acts of masturbating his young victim and proposing oral sodomy in exchange for a concert ticket, a payment of five dollars and a payment of ten dollars "to secure permission." Bolen, 731 S.W.2d at 457. Bolen argued that no separate "substantial step" toward the commission of the attempt sodomy occurred. Id. at 458. The Eastern District found that "the successive offers of consideration [were] a substantial step because they [were] `strongly corroborative of the firmness of [Bolen's] purpose to complete the commission of the offense.' [Section 564.011] does not require that an actual or specific attempt be made to perform each and every element of the crime." Id. (quoting § 564.011 RSMo Cum.Supp.1984). As we previously mentioned, "[w]hat act or conduct will constitute a substantial step will depend on the facts of the particular case." Molasky, 765 S.W.2d at 601. Bolen is factually distinguishable from the case now before us. The consideration offered to the victim in Bolen is not present in this case. The State claims that defendant's promises to give victim money and presents or to withhold presents or support constitute consideration. However, upon a close review of the evidence, we fail to see that any of defendant's "promises" were made in exchange for victim having sex with him. If anything, defendant made these promises only in return for victim writing him back while he was in prison.
We also consulted other jurisdictions' treatment of the sufficiency of evidence to show a substantial step toward the commission of statutory rape and sodomy. While it may be fortunate that there is not an abundance of case law on the subject, the cases we did find all were factually distinguishable in that the other defendants' actions were more readily ascertained to be a "substantial step" toward attempted statutory rape or sodomy. For example, in State v. Fowler, 3 S.W.3d 910 (Tenn.1999), the Supreme Court of Tennessee found that the evidence therein supported the jury's finding that Fowler's conduct constituted a substantial step toward the commission of statutory rape. Fowler, who was seeking homosexual activity on the night of his arrest, stopped at a rest area that had a reputation for homosexual activity. While there, Fowler approached an undercover police officer and agreed to pay him for "delivery of a young male" for the "purpose of procuring a young male [for] sex." Fowler, 3 S.W.3d at 912. He then wrote the officer a check for $200 "with the expectation that the boy would be turned over to [Fowler]." Id. In finding that the evidence "overwhelmingly supports the jury's finding that [Fowler's] conduct constituted a substantial step toward the commission of statutory rape," the court stated:
Requiring conduct beyond the defendant's conduct in this case would be inconsistent with both the general goal of crime prevention and [its] analysis in Reeves [, in which the court abandoned the "mere preparation" test or the requirement of an "overt act" in attempt lawwhich requirement has also been abandoned in Missouri]. We would create a dangerous precedent by requiring that the defendant take delivery of the boy or actually begin some act that would approach sexual penetration. Once a pedophile purchases a child and takes the child into his possession, some damage has likely occurred. Moreover the child is placed in a position of imminent danger from which the child may be powerless to protect himself or herself.
Id. at 912-13. Fowler not only showed his intent to statutorily rape a young boy, but he took the additional substantial step of *539 writing a check for $200 to the officer in order to effectuate his intent. In our case, defendant only wrote victim the letters and sent pictures from prison. There was no further "substantial step."
The State suggests that if we find that defendant's actions in this case do not constitute a substantial step, we will be creating the "dangerous precedent" that the Tennessee Supreme Court expressly sought to avoid in Fowler. We disagree. By holding that the evidence is insufficient herein, we certainly do not suggest that in order to charge defendant as they did the State had to wait for him to actually "begin some act that would approach sexual penetration" of victim. We certainly do not condone defendant's conduct, nor do we intend to suggest what conduct is required to support a charge of attempted statutory rape and sodomy. We merely hold that, on the facts of this case, the State's evidence is insufficient as a matter of law to support the jury's finding of guilt on the charged crimes in that the communications from defendant to victim do not constitute a "substantial step" toward the commission of attempted statutory rape and attempted statutory sodomy.
The State urges that more than "mere conversation" existed in this case. We disagree. The letters are conversations, and, as irresponsible and deplorable as the things defendant wrote to victim may be, the conversations simply are not sufficient to support defendant's convictions. Indeed, defendant's conduct in writing those letters to victim constitutes a crime, but it does not constitute the charged crimes of attempted statutory rape and sodomy in the second degree under Sections 564.011, 566.034 and 566.064. Following the holding of our Supreme Court in Molasky, we find there was no substantial step toward the commission of the crimes charged. 765 S.W.2d at 602.
Defendant's point on appeal is granted.
Conclusion
The evidence is insufficient to demonstrate that defendant took a substantial step toward the commission of statutory rape in the second degree or statutory sodomy in the second degree. Therefore, the trial court erred in submitting the case to the jury and overruling defendant's motion for judgment of acquittal. Withrow, 8 S.W.3d at 81. The judgment entered upon defendant's convictions is reversed, and the cause is remanded with instructions to discharge defendant. Id.
EDWIN H. SMITH, P.J., and HOLLIGER, J., concur.
NOTES
[1] Although the second amended information is not a part of the record on appeal, we believe from the prosecutor's discussion with the court at the start of trial that this date was changed to "between June 27, 1999, and June 27, 2000."
[2] Statutory references are to RSMo 1994.
[3] For a more detailed discussion on attempt law in Missouri, see H. Morley Swingle, Criminal Attempt Law in Missouri: Death of a Tale of Two Theories, 56 J. Mo. Bar 144, 144-51 (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041931/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1044
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Eduardo Hinojosa, also known as Lalo, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 1, 2007
Filed: February 5, 2007
___________
Before COLLOTON, HANSEN, and BENTON, Circuit Judges.
___________
PER CURIAM.
Eduardo Hinojosa appeals the district court’s1 denial of his motion to reduce his
sentence. Having carefully reviewed the record, we find that Hinojosa is not entitled
to a sentence reduction based on any subsequent lowering of the sentencing range by
the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Accordingly, we affirm.
See 8th Cir. R. 47B.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1548449/ | 25 F.2d 485 (1928)
CAMBRIDGE ELECTRIC LIGHT CO.
v.
ATWILL et al.
No. 2931.
District Court, D. Massachusetts.
April 11, 1928.
*486 Robert G. Dodge, of Boston, Mass., for plaintiff.
Arthur K. Reading, Atty. Gen., and Sherman L. Whipple and Lothrop Withington, both of Boston, Mass., for defendants.
Before BINGHAM, Circuit Judge, MORTON, and MORRIS, District Judges.
MORTON, District Judge.
This is an application for an injunction pendente lite, to restrain the Public Utilities Department of Massachusetts from enforcing an order requiring the plaintiff to make material reductions in its rate for domestic and commercial lighting. The record before us consists of the pleadings and ex parte affidavits filed by both sides and exhibits therein referred to.
The principles upon which such injunctions are granted or refused are well established. "It is well settled that the granting of a temporary injunction, pending final hearing, is within the sound discretion of the trial court." Sanford, J., Prendergast v. N. Y. Telephone Co., 262 U. S. 43 at 50, 43 S. Ct. 466, 469, 67 L. Ed. 853. "The rates fixed by the commission are presumed to be just and reasonable. The burden is upon the plaintiff to show that they are unjust, unreasonable, or confiscatory." Bryan, J., Cumberland T. & T. Co. v. Louisiana P. S. Commission (D. C.) 283 F. 215, 217, 219 (statutory court). See, too, Railroad Commission of Louisiana v. Cumberland T. & T. Co., 212 U. S. 414, 421, 29 S. Ct. 357, 53 L. Ed. 577. "It is elementary that the jurisdiction now invoked is not to be exercised except `in a case reasonably free from doubt,' and `when necessary to prevent great and irreparable injury.'" Mass. State Grange v. Benton, Atty. Gen. (D. C.) 10 F.(2d) 515 (Mass. statutory court), quoting Cavanaugh v. Looney, Atty. Gen., 248 U. S. at 456, 39 S. Ct. 142, 63 L. Ed. 354.
The decisions relied on by the plaintiff conform to these rules. In the Ohio Bell Telephone Case (D. C.) 3 F.(2d) 701, it was found by the court that the valuation of the commission was "probably too low"; and in the Monroe Gaslight & Fuel Co. Case (D. C.) 292 F. 139, it was said "these decisions require that a preliminary injunction should issue, if there is reasonable probability [italics ours] that the utility will prevail upon a final hearing," etc. Cases in which there has been a full hearing before a master stand, of course, upon a very different footing from the present application. The considerations mentioned by Judge Colt in Carpenter v. Knollwood Cemetery (C. C.) 188 F. 856, as governing the issue of injunctions pendente lite, refer to cases between private individuals. Where the acts of a state are drawn into question, somewhat different principles apply, as the foregoing quotations show. Governmental acts within the general power of the state are presumptively valid, and ought not to be interfered with by a federal court upon a mere balance of possible injuries. To warrant interference, it must appear that there is a reasonable probability that the utility will prevail upon final hearing.
The question is whether the plaintiff makes out a case within these requirements. The order which is attacked reduced its rate on domestic and commercial lighting from 8 cents to 5½ cents per kilowatt hour. There is no contention that the new rate will not produce income enough to pay all operating *487 expenses; but the plaintiff does contend that it will not furnish an adequate return on the invested capital. In support of this contention it has filed the affidavit of Edward J. Cheney, apparently a competent expert on such matters, valuing its property for rate-making purposes at about $8,000,000, and stating that the new rate will not yield a return of over 4.83 per cent. on this amount. There are other affidavits to the same effect, and to the point that such a rate of return will be inadequate and confiscatory; the company contending that the rate to be adequate must return at least 8 per cent. on the value of the invested property. Mr. Cheney and some of the other affiants testified before the department in the rate proceeding.
The facts relied upon by the state authorities are found in the decision of the Public Utilities Department, in the returns made from time to time by the plaintiff company, in certain exhibits introduced by the plaintiff company in the rate proceedings before the department, and in certain affidavits. The department in its decision finds "that the fair value (of the) property for rate-making purposes, * * * based upon the principles enunciated by the Supreme Court of the United States in McCardle v. Indianapolis Water Co., 272 U. S. 400, 47 S. Ct. 144, 71 L. Ed. 316, and in other recent decisions of that court, does not exceed $5,500,000, and that the fair value of that portion of its property devoted to its domestic and commercial business, based upon these same principles, does not exceed $2,500,000," that under the new rate the company's earnings, allowing nothing for increase of business caused by the reduction in price, will be more than sufficient to pay 6 per cent. on the valuation stated, and that such a return is "very attractive" in Massachusetts for securities of this sort. The department was also of the opinion that the company had, for the purpose of defending its high rate, allocated to its domestic and commercial lighting an undue proportion of its capital invested, and that, making proper adjustments for this, the new rate gave a return of much more than 6 per cent. on the capital used in that part of the business. The decision of the department appears on its face to have dealt with the questions presented fairly and intelligently.
The parties are thus in disagreement as to the value of the property, the legal rate of return, and the amount of net return which the new rate will produce. Upon the first point we are asked to accept for present purposes the valuation of the company's expert and officers, against that of the department made after hearing the same expert and presumably the same officers. Under the principles above stated, this ought not to be done unless we are satisfied that the department valuation, which carries a presumption of correctness, is based upon some fundamental error of fact or of law. The plaintiff contends that the department has proceeded upon the Massachusetts theory of valuation in disregard of the principles established by the United States Supreme Court. In the case of the Worcester Electric Light Co., the court evidently so viewed the findings of the department, and the injunction was granted. 23 F.(2d) 891. In the present case, which was decided by the department after the Worcester Case had been decided by the court, the department explicitly states that its valuation has been arrived at under the rules of the United States Supreme Court. There is nothing in the record which warrants us in ignoring or disregarding this statement. The value found is a fact, in determining which the department declined to accept the evidence of value now submitted to us by the plaintiff. We are not dealing with the case on full proofs, but only in a preliminary way and on the evidence as it stands. No sufficient reason is shown for rejecting the decision of the department, which, as above stated, is presumptively correct, in favor of affidavits submitted by the plaintiff, largely from the same witnesses whose testimony in extenso was regarded as unconvincing by the commissioners.
As to the rate of return: On this point also the department had before it, as we understand, substantially the same evidence as is before us, viz. that the rate of return should be 8 per cent. This evidence was rejected, and the department adopted, as stated in its decision, a rate of 6 per cent. This also is primarily a question of fact depending upon a number of factors. What would be a fair return for a company in one locality at a certain period might be inadequate or excessive for other companies differently situated. The rate of interest has also to be taken into consideration. Bluefield Co. v. Public Service Com., 262 U. S. 679, 693, 43 S. Ct. 675, 67 L. Ed. 1176. On the plaintiff's own figures, it will get a return under the new rate of about 5 per cent. on its valuation. On the figures of the department its return will be about 7 per cent. We are not at present satisfied that a return of less than 8 per cent. would ipso facto be confiscatory, or that the return which the plaintiff will actually obtain under the new rate will be of *488 that character. These points should await final hearing and possibly the results of actual experience.
The parties are in further disagreement, as above noticed, as to the correct allocation of capital invested between the different kinds of service furnished by the plaintiff, as to allowable expenses of operation, and perhaps on other matters. It may be that parts of the schedule should be revised upward, or possibly that the company should be somewhat differently capitalized. These are material questions, much too doubtful for any judgment to be passed upon them at this time. If it shall eventually be established that the new rates are so inadequate as to be confiscatory, the company will have lost such part of the difference, relatively small, as proves to be uncollectible, unless an injunction be presently granted. But this difference is not vital; and the possibility of the loss of it is, as the authorities above referred to show, not of itself sufficient reason for a temporary injunction interfering with state action in a state field.
It follows that the restraining order must be vacated and an injunction pendente lite refused. The case must be referred to a special master, with instructions to expedite the hearings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589717/ | 783 N.W.2d 871 (2010)
STATE
v.
REED.
No. 2008AP0751-CR.
Court of Appeals of Wisconsin.
January 13, 2010.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589728/ | 972 So.2d 555 (2007)
The ESTATE OF Stacey Kay KLAUS by Alta KLAUS, Administratrix and Alta Klaus as Personal Representative of the Wrongful Death Beneficiaries of Stacey Kay Klaus.
v.
VICKSBURG HEALTHCARE, LLC d/b/a River Region Health Systems, River Region Medical Corporation, Triad Hospitals, Inc., Stephanie Vanderford, R.N., and Eugene Ferris, III, M.D.
No. 2006-IA-00675-SCT.
Supreme Court of Mississippi.
November 29, 2007.
Rehearing Denied January 31, 2008.
Jerry Campbell, Vicksburg, Attorney for Appellants.
Kristopher Alan Graham, Stuart Bragg Harmon, Jackson, R.E. Parker, Sr., Clifford C. Whitney, III, Vicksburg, Attorneys for Appellees.
EN BANC.
*556 RANDOLPH, Justice, for the Court.
¶ 1. In this interlocutory appeal, the Court is asked to address the legislatively-instituted cap on non-economic damages found in Mississippi Code Annotated Section 11-1-60(2)(a) (Supp.2007) and its effect, vel non, on the wrongful-death statute, i.e., Mississippi Code Annotated Section 11-7-13 (Rev.2004).
FACTS
¶ 2. Stacey Kay Klaus ("Stacey") died following surgery at River Region Hospital. On July 18, 2005, Stacey's mother, Alta, filed a medical malpractice complaint against the Appellees in the Circuit Court of Warren County, Mississippi, as Administratrix of Stacey's estate and "as personal representative of the wrongful-death beneficiaries of [Stacey]. . . ." Stacey's wrongful-death beneficiaries ("Klauses") are Alta; her father, Sylvain; and her half-sister, Marian.
¶ 3. Subsequently, the Klauses filed a "Motion for Declaratory Judgment" in the trial court, stating:
2. Under Miss.Code Ann. § 11-1-60, non-economic damages are limited to $500,000.00 for "the plaintiff."
3. This wrongful death claim actually has three plaintiffs being the mother, father and half-sister. Although by statute each plaintiff must share equally in any award, each plaintiff has a separate claim for damages incurred for the death of [Stacey] because each plaintiff has a different relationship with [her].
4. The rights of each beneficiary plaintiff is affected by Miss.Code Ann. § 11-1-60. [The Klauses] pursuant to Rule 57 M.R.C.P. seeks a declaration from this Court, deciding whether each plaintiff's non-economic damages are limited to $500,000.00 or the suit's total non-economic damages are limited to $500,000.00.
(Emphasis added). Dr. Eugene Ferris filed his Response to that motion,[1] arguing that "the noneconomic damages of all of the wrongful death beneficiaries of [Stacey], in the aggregate, are capped at the statutory maximum of $500,000 under Miss.Code Ann. § 11-1-60." Following hearing, the circuit court entered a "Declaratory Judgment" finding that "the limitation on non-economic damages in 11-1-60(2)(a) to $500,000.00 applies to this cause of action regardless of the number of beneficiaries." This Court granted the Klauses' timely petition for interlocutory appeal. See M.R.A.P. 5.
ISSUE
¶ 4. This Court will consider:
(1) Does Mississippi Code Annotated Section 11-1-60(2)(a) limit non-economic damages to $500,000 for all wrongful death beneficiaries and the estate in an action for medical malpractice?
ANALYSIS
¶ 5. As this interlocutory appeal involves "a question of law and interpretation of a statute[,] . . . the standard of review is de novo." Miss. Dep't of Transp. v. Allred, 928 So.2d 152, 154 (Miss.2006) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). This Court has stated that:
[i]n considering a statute passed by the legislature, . . . the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. Whether the statute is ambiguous or not, the ultimate goal of *557 this Court is to discern and give effect to the legislative intent.
City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992) (citations omitted).
¶ 6. Mississippi Code Annotated Section 11-1-60(2)(a) provides that:
[i]n any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.
Miss.Code Ann. § 11-1-60(2)(a) (Supp. 2007) (emphasis added). In pertinent part, the wrongful-death statute authorizes that:
[t]he action for such damages may be brought in the name of the personal representative of the deceased person . . . for the benefit of all persons entitled under the law to recover, . . . or by the parent for the death of a child, . . . or by a sister for the death of a sister, . . . or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on the merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.
Miss.Code Ann. § 11-7-13 (Rev.2004) (emphasis added).
¶ 7. The Klauses argue that these two statutes, read together, create an ambiguity. Specifically, they maintain that the "shall not award the plaintiff more than Five Hundred Thousand ($500,000.00) for noneconomic damages" language of Mississippi Code Annotated Section 11-1-60(2)(a) is incongruent with the fact that, under the wrongful-death statute of Mississippi Code Annotated Section 11-7-13, multiple plaintiffs may have standing to file suit. The Appellees respond that "[w]rongful death actions are, inherently, derivative" and, therefore, "any defense which would have been available against the deceased, is available against the wrongful death beneficiaries." See Lee v. Thompson, 859 So.2d 981, 987 (Miss.2003). Therefore, the Appellees argue that "the plain language of § 11-1-60 establishes that the cap applies to the total amount of recoverable damages and that it is not multiplied by the number of parties involved." Furthermore, the Appellees assert that following this Court's decision in Allred, Mississippi Code Annotated Section 11-1-60, "when read in pari materia with §§ 1-3-1 and 1-3-33, applies regardless of the number of plaintiffs."
¶ 8. In Allred, this Court addressed the question of:
when multiple governmental defendants have been sued in "single occurrence" jurisdictions, such as Mississippi, does the limitation of liability [in Mississippi Code Annotated Section 11-46-15(1)(a)[2]*558 ] provide for one maximum dollar amount of liability for a single tortious act, regardless of the number of governmental entities sued, or does the maximum dollar amount of liability apply separately to each governmental entity defendant?
Allred, 928 So.2d at 154. In response to Allred's argument that the $50,000 limit in Mississippi Code Annotated Section 11-46-15(1) is to be applied per person, see id. at 153, this Court found:
Miss.Code Ann. Section 1-3-1, states, "this chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required by this chapter." Specifically pertinent in this case is Miss.Code Ann. Section 1-3-33 which states, "words used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number; and words used in the plural number shall extend to and embrace the singular number, except where a contrary intention is manifest."
The common maxim is that statutes in pari materia are to be construed together. When a statute is in pari materia with a later one, it is simply part of its context to be considered by the Court in deciding whether the meaning of a provision in the later statute is plain. See Rupert Cross, Statutory Interpretation 128 (1976). Applying Miss.Code Ann. Section 1-3-33 to an analysis of the Mississippi Tort Claims Act, it is abundantly clear that the Act fails to manifestly express a contrary intention, as required by Miss.Code Ann. Section 1-3-33. The Legislature had the opportunity to declare that the statute at issue was to be read only in the singular, but did not. Additionally, the Legislature did not manifestly express a contrary intention not to include plural language in its Declaration of Legislative Intent. Miss. Code Ann. § 11-46-3. The Legislature had the opportunity to manifest an intent that the statute should be read only in the singular; however, it is clear the Legislature did not do so. There being no ambiguity, the Court is bound to simply apply the statutes according to their plain meaning.
Allred, 928 So.2d at 155-56 (emphasis added). Therefore, this Court concluded that Mississippi Code Annotated Section 11-46-15(1) "shall be interpreted by using singular or plural language." Id. at 156 (emphasis added).
¶ 9. The learned circuit judge did not have the benefit of Allred when he entered "Declaratory Judgment" in favor of the Appellees. Nonetheless, he correctly observed that the Klauses' "argument that the use of the singular form of `plaintiff' in § 11-1-60 MCA would apply to each beneficiary, individually, is not persuasive. . . ." Just as in Allred, "[t]he Legislature had the opportunity to declare that the statute at issue was to be read only in the singular, but did not. Additionally, the Legislature did not manifestly express a contrary intention not to include plural language in its Declaration of Legislative Intent." Id. Accordingly, the statute is to be applied according to its plain meaning and "the plaintiff" in Mississippi Code Annotated Section 11-1-60(2)(a) "shall be interpreted by using the singular or plural language" when considered in pari materia with Mississippi Code Annotated Section 1-3-33 (Rev.2005).
*559 ¶ 10. While acknowledging the rectitude of the majority view, stating it "is consistent with the legislative purpose behind Section 11-1-60" (Dissenting Opinion at ¶ 21), the dissent then mulls over the potential unintended consequences of the legislative act and concludes that these potential unjust results were "not fully taken into consideration by the Legislature." (Dissenting Opinion at ¶ 23). If perchance the Legislature should sub-scribe to these assumptions, it may amend Mississippi Code Annotated Section 11-1-60 and expressly manifest a contrary intention to the plain language of Mississippi Code Annotated Section 1-3-33. See Miss. Ethics Comm'n v. Grisham, 957 So.2d 997, 1003 (Miss.2007) ("[t]he power to change this result lies with the legislature to amend the statute."). However, the dissent's suggestion that this Court should redress the perceived legislative error by judicial fiat requires an act of judicial activism. To properly preserve the separation of powers mandated by the Mississippi Constitution, see Miss. Const. art. I, §§ 1-2, this Court should act with restraint. See Grisham, 957 So.2d at 1003 ("[t]he privilege to amend a statute, not constitutionally infirm, does not rest with this Court.").
CONCLUSION
¶ 11. By enacting Mississippi Code Annotated Section 11-1-60(2)(a), the Legislature expressly instituted a cap on noneconomic damages recoverable by "the plaintiff." Mississippi Code Annotated Section 1-3-33 provides that words written in the singular are to be read in the plural. In light of Mississippi Code Annotated Section 1-3-33 and this Court's decision in Allred, the cap on noneconomic damages applies to plaintiff or plaintiffs. Therefore, the cap on noneconomic damages in Mississippi Code Annotated Section 11-1-60(2)(a) applies to all plaintiffs who bring a wrongful-death action pursuant to Mississippi Code Annotated Section 11-7-13. Accordingly, the judgment of the Circuit Court of Warren County is affirmed, and this case is remanded to that court for further proceedings consistent with this opinion.
¶ 12. AFFIRMED AND REMANDED.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON, AND LAMAR, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.
DIAZ, Presiding Justice, Dissenting.
¶ 13. "In considering a statute passed by the legislature . . . the first question a court should decide is whether the statute is ambiguous." City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). Section 11-1-60(2)(a) provides in pertinent part: "In a cause of action filed on or after September 1, 2004, . . . the trier of fact . . . shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000) in noneconomic damages." Miss.Code Ann. § 11-1-60(2)(a) (Supp.2007) (emphasis added). When read alone, this provision is unambiguous: It caps the amount of noneconomic damages a plaintiff can recover in a medical malpractice action at $500,000. However, Section 11-1-60(2)(a) becomes ambiguous when considered in the context of a wrongful death action, where one action is frequently filed by multiple plaintiffs.[3]
*560 ¶ 14. The majority finds the provision at issue unambiguous and contends that it "is to be applied according to its plain meaning[.]" According to the majority, the plain meaning of Section 11-1-60(2)(a) is that the noneconomic damages cap set forth in that provision applies to all wrongful death beneficiaries in the aggregate, rather than to each beneficiary individually. The majority reaches this conclusion by reading the term "plaintiff" in its plural form ("plaintiffs") in accordance with Mississippi Code Annotated Section 1-3-33 (Rev.2005).
¶ 15. I agree that the term "plaintiff" Section 11-1-60(2)(a) must be read in both its singular and plural form because the Legislature did not express an intent that the statute be read only in the singular. Miss.Code Ann. § 1-3-33 (Rev.2005). However, even if one reads the term "plaintiff" in its plural form, the plain meaning of Section 11-1-60(2)(a) is not that the noneconomic damages cap applies to all wrongful death beneficiaries in the aggregate. When "plaintiffs" is substituted for "plaintiff," the statute remains ambiguous: "the trier of fact . . . shall not award the plaintiff[s] more than Five Hundred Thousand Dollars ($500,000) for noneconomic damages." Miss.Code Ann. § 11-1-60(2)(a) (Rev.2005). When read in that form, the statute can be interpreted to mean either that plaintiffs cannot recover more than a total of $500,000 in noneconomic damages in a wrongful death action or that each plaintiff in a wrongful death action cannot recover more than $500,000 in noneconomic damages.
¶ 16. "Where statutes are ambiguous or in conflict with one another, it is proper to resort to the rules of statutory construction." Miss. Gaming Comm'n v. Imperial Palace of Miss., Inc., 751 So.2d 1025, 1028 (Miss.1999). "The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein." Clark v. State ex rel. Miss. State Med. Ass'n, 381 So.2d 1046, 1048 (Miss.1980).
¶ 17. The intent of the Legislature in enacting Section 11-1-60 is explicitly stated in the statute: "It is the intent of this section to limit all noneconomic damages to the above." Miss.Code Ann. § 11-1-60 (Supp.2007). Based on a plain reading of the statute, it is clear that the Legislature intended to cap the amount of noneconomic damages that could be recovered by a single plaintiff in a single medical malpractice cause of action. However, it is not apparent that the Legislature intended to cap the total amount of noneconomic damages that could be recovered by multiple plaintiffs in a wrongful death action premised on medical malpractice at $500,000.
¶ 18. When the Legislature has intended to place a cap on plaintiffs' damages in the aggregate in other contexts, it has done so explicitly. For example, in Mississippi Code Annotated Section 11-46-15(1) (Rev.2002), a provision of the Mississippi Tort Claims Act, the Legislature "establish[ed] a per occurrence cap on governmental liability." Allred v. Yarborough, 843 So.2d 727, 730 (Miss.2003). Section 11-46-15(1) provides in pertinent part: "In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter. . . ." Miss.Code Ann. § 11-46-15(1) (Rev.2002) (emphasis added).
¶ 19. It is well-settled that "the omission of language from a similar provision *561 on a similar subject indicates that the legislature had a different intent in enacting the provisions, which it manifested by the omission of the language." City of Natchez, 612 So.2d at 1089. The fact that Section 11-1-60(2)(a) does not contain language similar to that of Section 11-46-15(1), limiting damages for all claims arising out of a single occurrence or incident, indicates that the Legislature did not intend for the $500,000 noneconomic damages cap to apply to all claims arising out of a single act of medical malpractice.
¶ 20. "[I]n determining the legislative intent, [the Court] may look not only to the language used [in the statute] but also to [the statute's] historical background, its subject matter, and the purposes and objects to be accomplished." Clark, 381 So.2d at 1048. Section 11-1-60 was passed in the special session of the Mississippi Legislature on tort reform in 2002. E. Farish Percy, Checking Up on the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Reforms the Cure?, 73 Miss. L.J. 1001, 1002 (2004). The ultimate purpose of Section 11-1-60 was to alleviate the perceived medical malpractice liability insurance crisis in Mississippi. See id. at 1001-1003, 1034-37. Specifically, Section 11-1-60 was designed to put an end to excessive damage awards in medical malpractice cases,[4] which, in turn, would help bring down the cost of medical malpractice insurance in the state. See id. at 1036 n. 126.
¶ 21. Although the majority's holding that Section 11-1-60(2)(a) limits noneconomic damages per medical malpractice incident in the aggregate is consistent with the legislative purpose behind Section 11-1-60, I believe the holding will have ramifications that the Legislature did not intend.[5] "Unthought of results must be avoided if possible, especially if injustice follows, and unwise purpose will not be imputed to the Legislature when a reasonable construction is possible." McCullen v. State ex rel. Alexander, 217 Miss. 256, 271, 63 So.2d 856, 861 (1953) (internal quotation marks and citation omitted). Many "unthought of [and unjust] results" will flow from today's holding.[6]
*562 ¶ 22. First, wrongful death beneficiaries who are members of smaller classes of beneficiaries will receive more damages for their claims for loss of society and companionship than beneficiaries who belong to larger classes. Second, in wrongful death cases where the jury determines that the decedent's pain and suffering between injury and death and the wrongful death beneficiaries' claims for loss of society and companionship warrant an award of damages in excess of $500,000, the beneficiaries will not be fully compensated for the decedent's pain and suffering or their loss of society and companionship.[7] Third, today's holding will affect medical malpractice cases not involving wrongful death. A married couple that brings a medical malpractice action consisting of a personal-injury claim and a claim for loss of consortium will not be fully compensated if the jury determines that the injured spouse's damages for pain and suffering and the other spouse's damages for loss of consortium exceed $500,000.[8]
¶ 23. I do not believe the Legislature intended for the noneconomic damages cap set forth in Section 11-1-60(2)(a) to produce such unjust results. This Court has noted that the Legislature did not contemplate the impact that the tort reform measures it enacted would have on the wrongful death statute: "The Legislature clearly made major reforms in various statutes during recent sessions which included passing Mississippi Code Ann. Section 11-11-3(3). However, it is equally clear that the wrongful death statute, Section 11-7-13, was not considered concerning events and multiple defendant doctors such as what we have before us now, when these changes in various statutes where made." Rose v. Bologna, 942 So.2d 1287, 1290(¶ 9) (Miss.2006). Clearly, the impact that Section 11-1-60 could potentially have on the wrongful death statute was not fully taken into consideration by the Legislature.
¶ 24. "The purposes of the wrongful death statute are to prevent the wrongful termination of life and provide the beneficiary with compensation for the loss of companionship and society of the deceased, the pain and suffering of the deceased between injury and death, and punitive damages." 66 Fed. Credit Union v. Tucker, 853 So.2d 104, 109-10 (Miss.2003); see also Miss.Code Ann. § 11-7-13 (Rev.2004) ("the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit") (emphasis added). To hold that the Legislature intended for the noneconomic damages cap on medical malpractice actions to apply to wrongful death beneficiaries in the aggregate, would mean that the Legislature enacted Section 11-1-60 in direct contravention of one of the purposes of the wrongful death statute: to fully compensate all beneficiaries for their loss of society and companionship and the pain and suffering of the decedent. This Court should not impute such an unwise purpose to the Legislature, especially when a reasonable *563 construction of the statute that does not produce unjust results is possible. McCullen, 63 So.2d at 861.
¶ 25. Construing Section 11-1-60(2)(a) to apply to each wrongful death beneficiary separately, rather than in the aggregate, prevents that provision from abrogating an essential part of the wrongful death statute. Further, such a construction gives effect to the Legislature's intent in enacting Section 11-1-60-limiting the amount of noneconomic damages awarded in medical malpractice casesbecause each beneficiary will not be allowed to recover more than $500,000 in noneconomic damages. This approach does not subvert the cap created by the Legislature. Rather, it balances the Legislature's goal of protecting the health care industry with the mandate of the wrongful death statute that all wrongful death beneficiaries be fully compensated for their claims. Accordingly, I would hold that the noneconomic damages cap set forth in Section 11-1-60(2)(a) applies to each wrongful death beneficiary individually.[9]
¶ 26. The Supreme Court of Florida reached the same conclusion when faced with a very similar issue. St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 967-71 (Fla.2000). In that case the court was presented with the question of whether the $250,000 noneconomic damages cap in the arbitration provisions of Florida's Malpractice Act applied to all wrongful death claimants in the aggregate or to each claimant individually. Id. at 967. The provision in question reads as follows:
Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant's injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages.
Fla. Stat. § 766.207(7)(b) (emphasis added).
¶ 27. The court acknowledged that the provision stated that "noneconomic damages shall be limited to a maximum of $250,000 per incident," but concluded that the use of the singular "claimant" made the provision ambiguous. Phillipe, 769 So.2d at 968. Because the statute was ambiguous, the court proceeded to "look to the legislative intent for guidance." Id. It determined that the noneconomic damages cap provided "liability insurers with the ability to improve the predictability of the outcome of claims for the purpose of loss planning in risk assessment for premium purposes." Id. at 970.
¶ 28. After discerning the legislative intent, the court "conclude[d] that the cap on noneconomic damages applies to each claimant individually." Id. at 972. The court explained its reasoning as follows: "[I]n order for the assessment of a survivor's noneconomic damages to be equitable, each survivor's loss must be independently determined. Moreover, the loss of a survivor [should] not [be] diminished by the mere fact that there are multiple survivors." Id. at 971. The court also determined *564 that its holding was consistent with the purpose of the arbitration provision:
Such an interpretation would provide increased predictability in the outcome of the claims as the insurers would no longer be contending with the possibility of exorbitant noneconomic damage awards but would have a fixed dollar amount ($250,000), which each claimant's award could not exceed. Moreover, this interpretation does more to promote early resolution of medical negligence claims, as it provides an equitable result which will in turn further encourage claimants to seek resolution through arbitration.
Id. at 970. In addition, the court acknowledged that "were we to interpret the noneconomic damages cap to apply to all claimants in the aggregate, we conclude that such an interpretation would create equal protection concerns." Id. at 971.
¶ 29. I find the Supreme Court of Florida's analysis and reasoning to be very persuasive. I agree that each wrongful death beneficiary's noneconomic damages must be determined separately in order to be equitable and that the recovery of a beneficiary should not be reduced by the existence of other beneficiaries. Like the Florida Supreme Court, I conclude that applying the noneconomic damages cap per beneficiary is consistent with the legislative goal of limiting health care providers' exposure to liability. I also believe that the holding in today's case creates equal protection concerns.[10]
¶ 30. For these reasons, I would hold that the noneconomic damages cap of Section 11-1-60(2)(a) applies to each wrongful death beneficiary individually, reverse the judgment of the circuit court and remand this case for further proceedings consistent with that holding. Accordingly, I must respectfully dissent.
GRAVES, J., JOINS THIS OPINION.
NOTES
[1] Subsequently joined by the other Appellees.
[2] Mississippi Code Annotated Section 11-46-15(1)(a) states, in pertinent part, that:
(1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, the sum of Fifty Thousand Dollars ($50,000.00).
Miss.Code Ann. § 11-46-15(1)(a) (Rev.2002) (emphasis added).
[3] Under the wrongful death statute, only one wrongful death action may be brought on behalf of all the wrongful death beneficiaries:
"[T]here shall be but one (1) suit . . ." Miss. Code Ann. § 11-7-13 (Rev.2004). But a wrongful death action may be brought "by all interested parties," and "all parties interested may join the suit[.]" Id.
[4] In fact, not many large medical malpractice verdicts were returned in the period preceding the movement for tort reform. One study found that the number of medical malpractice verdicts exceeding one million dollars averaged one per year from 1995 through mid-2002. Neil Vidmar and Leigh Anne Brown, Tort Reform and the Medical Liability Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy, 22 Miss. C.L.Rev. 9, 15-20 (2002) (concluding that "there is no evidence that Mississippi juries are out of control in medical malpractice cases").
[5] By stating that today's holding is consistent with the legislative purpose behind Section 11-1-60, I do not mean that the majority's application of Section 11-1-60(2)(a) is correct in any regard. I am not "validating" the majority's "analysis" at all. I am simply stating the obvious: Applying Section 11-1-60(2)(a) per medical malpractice incident in the aggregate, as the majority does, is consistent with the statute's legislative purpose of limiting the amount of noneconomic damages awarded in medical malpractice cases because it will limit the amount of noneconomic damages awarded in medical malpractice cases. Of course, the construction of the statute that I advocate is also consistent with the legislative purpose behind the statute. The ultimate question is not whether a particular application of Section 11-1-60(2)(a) is consistent with the general purpose of the statute, but whether it effectuates the intent of the Legislature. In my view, the majority's application of Section 11-1-60(2)(a) in this case does not effectuate the intent of the Legislature. Accordingly, I do not acknowledge the "rectitude" of the holding in this case.
[6] As discussed infra, there is nothing "potential" about the unjust results of today's decision, contrary to the majority's assertion.
[7] As a result of the holding in today's case, in wrongful death cases not premised on medical malpractice, the beneficiaries will not be fully compensated if a jury determines that the noneconomic damages exceed $1,000,000. Miss.Code Ann. § 11-1-60(2)(b) (Supp.2007).
[8] This will be the effect because in a medical malpractice case involving a primary personal-injury claim and a loss-of-consortium claim, there is one cause of action and more than one plaintiff, as in a wrongful death action. See Choctaw, Inc. v. Wichner, 521 So.2d 878, 881 (Miss.1988) (holding that a claim for loss of consortium is a derivative claim, not an independent cause of action).
[9] The majority claims that my proposed construction of Section 11-1-60(2)(a) is intended to "correct [a] perceived legislative error by judicial fiat," and would constitute an "act of judicial activism." The majority is mistaken. I am not attempting to correct a legislative error; rather, I am seeking to discover the intent of the Legislature in enacting Section 11-1-60(2)(a) and apply it accordingly. After construing the statute, unlike the majority, I find that the Legislature did not intend for Section 11-1-60(2)(a) to cap the total amount of noneconomic damages that can be recovered in a wrongful death action at $500,000. Accordingly, my conclusion is the opposite of judicial activism.
[10] I not only have equal protection concerns about the application of the noneconomic damages cap on medical malpractice actions to wrongful death cases, but I also have equal protection concerns about the cap itself. Several courts have held that such a cap violates their state's equal protection clause. The Alabama Supreme Court held that placing a cap on noneconomic damages in medical malpractice cases "creates a favored class of tortfeasors, based solely upon their connection with health care[.]" Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 166-67 (Ala.1991); see also Carson v. Maurer, 120 N.H. 925, 940-41, 424 A.2d 825, 835-36 (1980), overruled on other grounds by Cmty. Res. for Justice, Inc. v. City of Manchester, 154 N.H. 748, 917 A.2d 707, 721 (2007). Because this issue was not raised on appeal, I will not address it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589729/ | 84 F.Supp. 775 (1949)
STATE, to Use of MAINES et al.
v.
A/S NYE KRISTIANBORG et al.
No. 3117.
United States District Court D. Maryland.
July 15, 1949.
*776 Sol C. Berenholtz, Baltimore, Md., Louis Silberstein, Baltimore, Md., for libellants.
Robert W. Williams (of Ober, Williams, Grimes & Stinson), Baltimore, Md., for respondents.
CHESNUT, District Judge.
The Maryland Lord Campbell's Act, Maryland Code, art. 67, §§ 1-5 was again amended by chapter 742 of the Maryland Acts of 1949. The amendment, in effect, for the first time imposes liability in rem on a vessel for a wrongful act, neglect or default which causes the death of a person under circumstances where the vessel would have been liable to the person injured if he had survived. The exceptions to the libel in rem in the instant case present the question whether this amendment, which took effect June 1, 1949, is retrospective or only prospective in operating effect. The question now presented arises from the following alleged facts and former proceedings in the case. On October 19, 1948 the tug "Columbia", having in tow a barge known as the "Theodore H. Rhode", was proceeding through the Baltimore North Channel toward the Chesapeake Bay when the tug was struck by the motor vessel "Bowgran" which was likewise then proceeding in the same channel toward the Bay. As a result of this collision the tug sank and David A. Maines, employed as master of the tug, lost his life.
On January 5, 1949 the equitable plaintiffs in this case, the widow and infant son of the deceased, filed a libel based on Lord Campbell's Act to recover damages for the death of the husband and father. The libel asserted liability in personam against the vessel owner, the A/S Nye Kristianborg, a Norwegian corporation, and also against the motor vessel Bowgran in rem. On January 28, 1949 proctors for the owner claimant of the Bowgran filed exceptions to the libel insofar as it asserted liability in rem against the vessel. At the hearing of these exceptions it was substantially agreed by counsel for all the parties that as both the federal and state law then existed there was no liability in rem upon the Bowgran. Consequently the exceptions to the libel, insofar as it asserted liability in rem against the vessel, were sustained with leave, however, to the libellants to amend. From time to time thereafter the time for filing such amendment was extended and finally on June 3, 1949, two days after the amendment to Lord Campbell's Act became effective, an amended libel in rem was filed against the Bowgran, and exceptions to that amended libel were promptly filed by proctors for the vessel. On hearing counsel in support of and against the exceptions it developed that the controlling question is whether the very recent amendment to Lord Campbell's Act in Maryland is retrospective in operation and thus would be applicable to this case where the loss of life occurred on *777 October 19, 1948, about seven months before the effective date of the amendment. The question is obviously one of proper statutory construction and, as the whole case is based on a Maryland statute, it would seem clear enough, even apart from the doctrine of Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, that the first important matter to be considered is what the Maryland Court of Appeals would say, so far as it is possible for me to determine in advance of such actual decision. But before directly coming to that aspect of the subject it will be helpful preliminarily to summarize briefly the federal statutory law and judicial decisions with respect to liability for wrongful deaths occurring on ships on navigable waters.
There is no liability for wrongful death under the general maritime law. This was decided by the Supreme Court in the case of The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 overruling some prior trial decisions or intimations to the contrary, including the opinion by Chief Justice Chase sitting in the District of Maryland in the case of The Sea Gull, 1865, Fed.Cas.No. 12,578, p. 909.[1] It was not until 1920 that Congress enacted the Death on the High Seas Act, 46 U.S.C. A. §§ 761-768, which, however, is applicable only where the wrongful act occurs "on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States." The common law gave no civil remedy for an injury which resulted in death. Mobile Life Insurance Company v. Brame, 1877, 95 U.S. 754, 24 L.Ed. 580. This lack was remedied in Maryland in 1852 by the passage of the Maryland Lord Campbell's Act, and as the alleged wrongful act in this case occurred in Maryland territorial waters and not on the high seas the liability in the case at bar must be based upon that Act. To the extent that that Act is applicable it may be enforced in the appropriate federal admiralty court. See Maryland v. Miller, D.C.Md.1910, 180 F. 796, modified on other grounds, 4th Cir., 194 F. 775, certiorari denied 225 U.S. 703, 32 S.Ct. 836, 56 L.Ed. 1265; State v. Hamburg-American Steam Packet Co., D.C.Md.1911, 190 F. 240, affirmed 4th Cir., 193 F. 1019, affirmed 234 U.S. 63, 34 S.Ct. 736, 58 L. Ed. 1213; Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; State of Md. for Use of Johnson v. United States, 1948, 4th Cir., 165 F.2d 911; American Stevedores v. Porello, 1947, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011. But the liability cannot be enforced by a proceeding in rem against a vessel for wrongful death unless the State statute expressly or very clearly creates a lien on the ship. The Anglo-Patagonian, 4th Cir., 1916, 235 F. 92, certiorari denied 242 U.S. 636, 37 S.Ct. 19, 61 L.Ed. 539, and Lewis v. Jones, 4th Cir., 1928, 27 F.2d 72, certiorari denied 278 U.S. 634, 49 S.Ct. 34, 73 L.Ed. 551, holding that the Virginia statute did not give the lien, and Vancouver S. S. Co. v. Rice, 1933, 288 U.S. 445, 53 S.Ct. 420, 77 L.Ed. 885. And where the State statute gives no lien no suit in rem can be maintained. The Corsair, 1892, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727. The English law was to the same effect, it having been held in The Vera Cruz, 10 A.C. 59, that the British Lord Campbell's Act gave no express right in rem and therefore the British admiralty courts were without jurisdiction to enforce liability under the Act by an in rem proceeding.[2]
It should also be borne in mind that the in rem proceeding is a peculiar *778 feature of admiralty law, and jurisdiction to enforce a maritime lien should not be extended by construction, analogy or inference. The Yankee Blade, 1856, 19 How. 82, 60 U.S. 82, 15 L.Ed. 554; Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 1920, 254 U.S. 1, 41 S.Ct. 1, 65 L. Ed. 97; Osaka Shosen Kaisha v. Pacific Export Lumber Co., 1923, 260 U.S. 490, 43 S. Ct. 172, 67 L.Ed. 364; Plamals v. Pinar Del Rio, 1928, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827. See also Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 1933, 290 U.S. 117, 54 S.Ct. 105, 78 L.Ed. 216.
From this condensed summary of the applicable law it is quite clear and indeed is not now disputed that the libel in rem in this case cannot be sustained unless the Maryland Act of 1949 amending Lord Campbell's Act is to be given retrospective operation, because it is not now even contended that the Maryland Act prior to this last amendment gave a lien on the ship.
Lord Campbell's Act in Maryland was first enacted by the Maryland Act of 1852, ch. 299. The original language imposing liability, which was not substantially changed until 1949, imposed the liability merely upon the person who would have been liable if death had not ensued (or the executor or the administrator of the said person). The effect of the amendment of section 1 of art. 67 merely adds the words "the vessel" to the phrase "person who would have been liable" and further provides "and if death ensues as a result of wrongful act, neglect or default of a vessel, suit may be brought in rem against said vessel in any court of competent jurisdiction.[3]
The exceptions to the libel are based on the view that the amendment was prospective only in operation, while the proctor for the libellant contends that the statute as amended can and should properly have a retrospective operation to include the occurrence of October 19, 1948.
After consideration of the oral and written arguments of respective counsel, and even more particular review of the Maryland decisions, I reach the conclusion of law that the amendment of 1949 cannot properly be given retroactive effect and therefore the exceptions to the amended libel in rem must be sustained.
There is no Maryland constitutional prohibition of retrospective Acts affecting civil rights or liabilities.[4] But the Maryland decisions are clear and emphatic to the effect that a statute will not be given a retrospective operation unless its words are so clear, strong, and imperative in their retrospective expression that no other meaning can be attached to them or unless the manifest intention of the Legislature could not otherwise be gratified. The rule has also been stated by the Maryland Court of Appeals to be that in the absence of a clear manifestation of a contrary intent, or unless such a construction would be *779 inconsistent with the purpose and intent of the Legislature, the operation of a statute which adversely affects substantial rights will be assumed to be prospective rather than retrospective. The Maryland cases to the above effect are very numerous, but it will be sufficient to refer to a few of the more recent ones. Kelch v. Keehn, 183 Md. 140, 36 A.2d 544; Tax Commission v. Potomac Electric Power Co., 182 Md. 111, 32 A.2d 382; Diamond Match Co. v. State Tax Commission, supra; Dashiell v. Holland Maide Candy Shops, 171 Md. 72, 188 A. 29; Jones v. Gordy, 169 Md. 173, 180 A. 272; Ireland v. Shipley, 165 Md. 90, 166 A. 593; Savings Bank v. Vandiver, 125 Md. 352, 93 A. 978; Vandiver v. Fidelity Savings Bank, 120 Md. 619, 87 A. 1086; Hemsley v. Hollingsworth, 119 Md. 431, 87 A. 506. The general law is the same. 59 C.J. p. 1157 et seq., s. 690 et seq. See also Annotation, 77 A.L.R. 1338.
I do not find in the wording of the amendment any indication that it was the clear intention of the Legislature to give this retrospective effect. The words "nothing in this section shall apply to causes of action arising prior to June 1, 1937" cannot be construed to give retrospective effect for they are only applicable to section 2 of the amendment, which section deals with the conflict of law problem, whereas we are here concerned with section 1 of the amendment. Rather, the intention of the Legislature seems to be for prospective operation only for the amendment provides, in its final sentence, that "this Act shall take effect June 1, 1949",[5] and also provides that "* * * the vessel * * * shall be liable * * *", thereby indicating future liability. See State v. Safe Deposit and Trust Co., 132 Md. 251, 103 A. 435.
The argument for the retrospective application is put on the ground that the statute is remedial in nature and should be liberally construed, and as it relates to procedure rather than to substantive rights its retrospective operation would be consistent with decisions in Maryland as well as elsewhere, that statutes relating to procedural matters, as distinct from substantive rights should, unless otherwise provided in the statute, apply to pending actions and proceedings. More explicitly it is argued that what the amendment does is merely to give an alternative remedy for the enforcement of a liability for wrongful death originally created in England (contrary to the existing common law)[6] by Lord Campbell's Act, which was substantially adopted in Maryland by the Act of 1852, citing Ireland v. Shipley, supra. Reference is also made to the general law to that effect. Sutherland on Statutory Construction, 3d Ed. §§ 7002 and 7205; Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685; Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628; Funkhouser v. Preston Co., 290 U.S. 163, 54 S.Ct. 134, 78 L.Ed. 243; Federal Reserve Bank of Richmond v. Kalin, 4th Cir., 77 F.2d 50.
But, in my opinion, the amendment, imposing for the first time a liability upon a vessel in rem, cannot properly be considered a procedural matter only, because it creates a new right and imposes a new liability. See 59 C.J. p. 1172, s. 697. Clearly the original Act in imposing upon a "person" liability for the wrongful death of another created an important new substantive right. Clearly also the original statute created no lien of any kind. It seems to follow logically enough that when the amendment imposed upon the ship a liability not theretofore existing and further subjected the ship to a proceeding in rem to enforce that liability the substantive law was thereby changed. According to American admiralty law the conceptual origin of the maritime lien resulted from the personification of the ship as a juridical entity. So viewed it seems clear enough that a new substantive right was given the libellant and a new substantive liability was imposed upon the ship as a personified entity. *780 And in The Lottawanna, 21 Wall. 558, 88 U.S. 558, 579, 22 L.Ed. 654, the Supreme Court held that the right to proceed in rem to enforce a maritime lien was a "right of property", and not a mere matter of procedure.
But apart from this fictional concept which endows the ship with personality there is a very substantial reason for the holding that the substantive law is changed by the amendment. The effect of the amendment is to impose liability on the ship itself for its wrongful act or default, irrespective of fault by or of personal liability of the owners of the ship. Thus the ship may possibly become liable when operated by a charterer, or a compulsory pilot, or an independent contractor, under circumstances where there would be no personal liability of the owner of the ship. See Price, Law of Maritime Liens, (Sweet & Maxwell, London, 1940), p. 134; Robinson on Admiralty, s. 48, pp. 363-8; The China, 7 Wall. 53, 74 U.S. 53, 19 L.Ed. 67; The Barnstable, 181 U.S. 464, 21 S.Ct. 684, 45 L.Ed. 954; Homer Ramsdell Co. v. La Compagnie Generale T., 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155. Even if it were possible, as a matter of statutory construction, to find that it was the intention of the Maryland Legislature to make the amending statute retroactive in effect, it still would not be possible to do so, because that would run counter to both Maryland and federal constitutional limitations. It requires no elaboration to demonstrate that a statute which, as we have seen, would impair a property right, by subjecting one's property to the claims of another, without personal fault or legal liability of the owner, destroys vested rights of property, and is therefore clearly invalid. It is a taking of property without due process of law contrary to the 14th Amendment of the Federal Constitution and also contrary to established constitutional principles in Maryland. Chase Securities v. Donaldson, supra; Ireland v. Shipley, supra; Seese v. Bethlehem Steel Co., D.C.Md., 74 F.Supp. 412, affirmed 4th Cir., 168 F.2d 58.
Diligence of counsel and independent research by the court have not resulted in finding any precedent for a precisely similar amendatory statute. While I assume that the Lord Campbell's Act, or very similar legislation, exists in a great majority of the States, only Florida[7], Oregon[8] and Virginia[9] either by original enactment or subsequent amendment, impose liability upon the ship. This, together with the comparatively short period of time during which such a question can arise, probably explains why no judicial decision can be found dealing with the prospective or retrospective operation of such an amendatory statute.
Nor is there any available relevant legislative history which might be helpful to the court in considering the nature of the amendment. The Maryland legislative system, unlike the federal congressional system, does not preserve an official record of progress of a Bill through the Legislature. However, counsel in the case have freely stated to the court what is known by them with respect to the origin and enactment of the amendment. It was actually drawn by Mr. Berenholtz, of counsel for the libellants, after exceptions had been sustained to the original libel in rem in this case. Mr. Berenholtz frankly stated that he drew the amendment because he thought there was need for it in the Maryland law and that in doing so he had no conscious affirmative intention of making it applicable to the pending case and really gave no particular thought to that phase of the matter at the time. Apparently opposing counsel in the case were informed of the introduction and pendency of the Bill but interposed no objection to it. Apparently also there was no opposition to the Bill while pending before Committees of either House or on the floor. And in due course the Act was approved by the Governor presumably after receiving a report about it from the Attorney General, the nature of which, however, is not known.
In summary, it is my opinion that the amendment is, under Maryland and federal *781 law, prospective only and cannot validly be made retroactive in effect. And I think the same conclusion would be reached on the general law upon the subject.
It is therefore ordered by the court that the exceptions to the amended libel seeking to impose a liability in rem on the ship Bowgran be and the same are hereby sustained.
NOTES
[1] And Judge Morris in the case of David Reese, Fed.Cas.No.6,625, 5 Hughes, 89, apparently gave a similar decision that he was bound by the decision in the Sea Gull, although it appeared to him to be contrary to common law and admiralty decisions elsewhere. See also Robinson on Admiralty, p. 135, note. 3.
[2] The holding of the Supreme Court in The Corsair has never since been questioned and has repeatedly been approved. The Albert Dumois, 177 U.S. 240, 20 S.Ct. 595, 44 L.Ed. 751; The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Plamals v. Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827; Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903; Benedict on Admiralty, Vol. 1, p. 392, and cases in note 45; Robinson on Admiralty, p. 151; 32 Harvard Law Rev. 713.
[3] The material part of section 1 now reads as follows: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the vessel or person who would have been liable if death had not ensued, or the executor or administrator of the said person who would have been liable in case of the death of the said person who would have been liable, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused in such circumstances as amount in law to felony and if death ensues as a result of wrongful act, neglect or default of a vessel, suit may be brought in rem against said vessel in any court of competent jurisdiction." (Italics supplied.)
[4] The Maryland Declaration of Rights, Art. 17, provides "that retrospective laws, punishing acts committed before the existence of such Laws, and by them only declared criminal are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed or required." This constitutional limitation applies only to criminal laws. Diamond Match Co. v. State Tax Commission, 175 Md. 234, 241, 200 A. 365. Of course in the civil field the Federal Constitution, Art. 1, § 10, prohibits the State from passing any Act impairing the obligation of a contract. That provision, however, is not applicable in the instant case.
[5] The Maryland Constitution, art. 3, § 31, provides "no law passed by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it be otherwise expressly declared therein."
[6] It was one of the maxims of the common law that a personal action died with the person actio personalis moritur cum persona.
[7] Florida Statutes Annotated, Title 43, Ch. 768, Vol. 21, p. 396, F.S.A. § 768.01 et seq.
[8] Oregon Compiled Laws Annotated, sec. 8-903, Vol. 1, p. 734, and sec. 67-801, Vol. 5, p. 108.
[9] Virginia Code of 1942, Title 56, Ch. 236, sec. 5786. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589732/ | 84 F.Supp. 1021 (1949)
TOBIN QUARRIES, Inc.
v.
UNITED STATES.
No. 46433.
United States Court of Claims.
July 11, 1949.
Frank L. Martin, (John M. Martin, and Martin & Martin, on the brief), for plaintiff.
John B. Miller, Washington, D. C., H. G. Morison, Asst. Atty. Gen., for defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.
MADDEN, Judge.
On April 11, 1940, plaintiff entered into a contract with defendant to construct a rock-fill dike extending from Moose Creek Butte to Tanana River in Alaska. In the construction of this dike the plaintiff was required to get the rock from Moose Creek Butte, which was represented to be "a solid rock formation." The specifications required that 90 percent of the rock placed in the dike should range in size from ½ cubic foot to 1 cubic yard, and that rock weighing less than 25 pounds should not exceed 10 percent of the total.
It turned out that the rock in the butte was quite friable, and it proved impossible to get rock of the required size without excessive waste. The contractor called this condition to the attention of the contracting officer and asked for a change in the specifications and for compensation for all the rock excavated, whether placed in the dike or not. The contracting officer made an examination of the site and issued Change Order 1, which permitted the placing in the dike of rock weighing less than 10 pounds, instead of 25 pounds, to the extent of 15 percent of the total volume, but the Change Order made no allowance for the excessive waste already encountered.
However, even under this Change Order it was found impossible to secure rock of the required sizes without excessive waste, and the contracting officer then issued Change Order 2, which further modified the specifications to permit the use of quarry-run rock, irrespective of size, except between certain stations in the dike. This *1022 Change Order, however, required both faces of the dike to be armored with rock not less than ½ cubic foot in size and with smaller rock, which was not to exceed, however, 15 percent of the volume. Later, the plaintiff asked for a further modification of the specifications due to its inability to secure the required sizes, and finally Change Order 3 was issued eliminating the necessity for armoring the dike on its down-stream face, as required in Change Order 2, except between certain stations. The contract was completed under this Change Order.
The plaintiff sues for its excess costs incurred prior to the issuance of Change Order 2, and also from the time the cost of performance under Change Order 2 became excessive until it was relieved from its requirements by Change Order 3. It also sues for another item to be mentioned later.
The plaintiff sues on the ground that the Government misrepresented the character of the rock in the butte, and also that the plaintiff was entitled to an equitable adjustment of compensation under Article 4 of the contract, because it encountered unforeseen conditions during the progress of the work.
There was no intentional misrepresentation on the part of the Government. There was innocent misrepresentation, but that is only another way of saying that the Government, as well as the plaintiff, was unaware, at the time the contract was made, of the true character of the rock in the butte. The fact that the plaintiff was required by the contract to get its rock from the butte shows that both parties supposed that the rock to be obtained there was suitable for the work, and could be used on a reasonably economical basis. Neither party expected that, to get proper rock from the butte, great quantities of material would have to be picked over, most of which would have to be disposed of as waste. We think, therefore, that the problems of misrepresentation, and of unforeseen conditions not contemplated by the parties really constitute a single problem. And we think that unforeseen conditions, within the meaning of Article 4 of the contract were encountered.
The Government urges that the following provision, contained in each of the three change orders, "It is further understood and agreed that all other terms and conditions of said contract shall be and remain the same," forecloses the plaintiff from any relief under Article 4. We do not agree. This provision, usual in change orders, is not inconsistent with the continuing right of a contractor to have the benefit of other contract provisions, such as Article 4. A change order, in a particular case, might be intended as a settlement of an asserted right under that article, and if so, it would have that effect. Here there is no showing of such an intent. The change orders looked only to the future, and contained no provision except what was regarded as adequate to keep the contract work going in the future. There was no element of compensation in them for already incurred costs due to unforeseen conditions. And they did not eliminate Article 4 for the future, if still further unforeseen conditions should be encountered. The extensive conversations and correspondence which took place between the plaintiff and the officials of the Government do not indicate that either party intended the provision in the change orders to constitute a waiver by the plaintiff of its right to relief under Article 4. If the Government officials had so intended, the short answer to the plaintiff's claim would have been to say that the matter had already been settled. Instead, the matter was carried along for some two years, and was concluded by a decision of the Chief of Engineers that "a changed condition has not been shown". This conclusion was not based upon any finding of fact by the Contracting Officer, to which the plaintiff was entitled under Article 4. The Contracting Officer could not have made such a finding, in view of the reports which his own agents had made to him. Since the Government did not follow the procedure provided in the contract for the making of administrative decisions, the question is open for our decision on the merits. We think that the decision of the Chief of Engineers was wrong, and that the plaintiff was entitled to an equitable adjustment under Article 4. We have allowed the plaintiff, *1023 on this item of its claim, the difference between what it cost it to do the work and what it would have cost it if the unforeseen conditions had not been encountered. As shown in Finding 50, this difference is $23,658.63.
As shown in Findings 38, 39, and 40, the Government, in issuing Change Order No. 3, reduced the price to be paid for quarry-run rock from the contract price of $1.09 to 60 cents per cubic yard, which change the plaintiff protested, saying that it would be accepted only so that it would be possible for it to finish the job. We think that, in the circumstances, the Government had no right to so change the contract price, and that for it to insist upon the reduction at a time when the plaintiff was so involved in the job that it had no choice in the matter, amounted to economic coercion. The plaintiff should receive the amount of which it was deprived by the reduction, which is $6,384.21.
The plaintiff may have a judgment for $30,042.84. It is so ordered.
JONES, Chief Judge, and HOWELL and LITTLETON, Judges, concur.
WHITAKER, Judge.
I dissent. My view of the case is set out in the opinion heretofore filed.
At the time the first change order was issued plaintiff had pending a request for a change in the specifications for future work and an additional payment for work already done. The change order was issued in response to this claim. It was a settlement of it. It lowered the specifications for future work, but made no allowance for work already done. Instead, it said that "all other terms and conditions of the contract should remain the same." This I think constituted a denial of the claim for an additional payment for work already done.
The fact that the contracting officer and the head of the department did not raise this defense does not prove, in my opinion, what the majority says it proves, because the contracting officer who ruled on the claim after the work had been finished was a different person from the one who issued the change order. There is no showing that he knew what was in the mind of the contracting officer who issued the change order.
His failure to raise this defense is not a waiver of it. A Government officer has no right to waive a defense available to the Government except in the compromise of a claim. No compromise is involved here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589740/ | 972 So.2d 81 (2007)
Joyce P. TROTT, as the dependent widow of Ronald D. Trott, deceased, and as personal representative of the estate of Ronald D. Trott, deceased
v.
BRINKS, INC., et al.
1050895.
Supreme Court of Alabama.
May 4, 2007.
*82 William W. Smith and Nicole Judge of Smith & Alspaugh, P.C., Birmingham, for plaintiff.
Adrian D. Johnson of Parnell & Crum, P.A., Montgomery, for defendants.
SMITH, Justice.
The United States District Court for the Northern District of Alabama has certified the following question pursuant to Rule 18, Ala. R.App. P.: "Whether an employer's insurance carrier is entitled to be reimbursed for medical expenses from amounts recovered from a third party in a wrongful death action filed by the employee decedent's personal representative?" This Court accepted the question; we now answer it in the negative.
Facts and Procedural History
In certifying this question, the federal district court set forth the facts of this case:
"On the morning of August 23, 2000, [Ronald D.] Trott, age 64, went to his job at Brinks, Inc. (`Brinks') in Birmingham where he was employed as a driver of armored trucks. On this particular day, Mr. Trott rode in the back of the truck with a co-employee, while two other employees rode in the front of the vehicle as they traveled to deliver bags of coins stored in the back of the truck to various locations.
"On Highway 72, about twelve miles outside of Huntsville, the driver of the truck ran off the side of the road causing the truck to overturn in an upside [down] position. During the rollover, Mr. Trott broke ten ribs, [his] right hip, left shoulder and cracked his backbone. While recovering from hip surgery, Mr. Trott's lung collapsed and he underwent another surgery. Ultimately it was determined that he suffered severe and irreversible internal injuries during the collision that resulted in his death on October 11, 2000. During the course of treatment, Mr. Trott incurred $415,098 of medical bills which were paid by his employer and/or its insurance carrier, [Liberty Mutual Insurance Company (`Liberty Mutual')].
"Joyce [P.] Trott, the widow of Mr. Trott [and the administratrix of Mr. Trott's estate], filed a wrongful death action against Indiana Mills and Manufacturing, Inc. (`IMMI') on November 11, 2000 in the Circuit Court of Jefferson County. In her complaint, Mrs. Trott maintains that her husband was securely belted in the rear suspension seat prior to and during the rollover incident and that the seatbelt, manufactured by the defendant IMMI, unlatched at some point during the rollover. Release of the belt, she claims, caused the traumatic and ultimately fatal injuries which would not have occurred had the seatbelt held.
"After the case was removed to this Court, Liberty Mutual was allowed to intervene as a party plaintiff in the underlying *83 action to preserve its subrogation interest.
"Liberty Mutual contends that it is entitled to be reimbursed both for death benefits and medical expenses paid to Mrs. Trott from any amount recovered in a third party action against the defendant IMMI and for medical benefits paid on behalf of Mr. Trott during his lifetime. Mrs. Trott disputes only the right of reimbursement for medical benefits paid on behalf of Mr. Trott during his lifetime. She maintains that recovery for medical expenses in a wrongful death action is inconsistent both with Ala. Code, 1975 § 25-5-11 and with the principles of subrogation. . . . "
(Footnote omitted.)
Discussion
Alabama Code 1975, § 25-5-11, provides, among other things, an employee the right to maintain an action against an employer for workers' compensation benefits in connection with an on-the-job injury while at the same time pursuing an action for damages against a third party for that same injury. Section 25-5-11 further allows a dependent of a deceased employee to file a wrongful-death action under Ala. Code 1975, § 6-5-410, against third parties for the wrongful death of the employee. Millers Mut. Ins. Ass'n v. Young, 601 So.2d 962 (Ala.1992).
In addition to providing employees and their dependents the right to maintain actions against third parties, § 25-5-11(a) also provides an employer with a general right to be reimbursed out of any damages award for workers' compensation benefits it has paid. Alabama Code 1975, § 25-5-1(4), defines "employer" to include an employer's insurer; thus, the word "employer" in this opinion includes both Brinks, Inc., and Liberty Mutual Insurance Company. If an employer has paid workers' compensation benefits to an employee or death benefits to the dependents of a deceased employee, then the employer may be reimbursed for those benefits from any damages award received in the action against the third party: "To the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death." Ala.Code 1975, § 25-5-11(a).
This Court has held that § 25-5-11(a) allows an employer to intervene in a wrongful-death action to be reimbursed for benefits or compensation it paid. Ex parte Cincinnati Ins. Co., 689 So.2d 47 (Ala. 1997); Millers Mut. Ins. Ass'n v. Young, supra. Before 1992, § 25-5-11 allowed reimbursement only for "compensation," which this Court had concluded did not include medical expenses. See Liberty Mut. Ins. Co. v. Manasco, 271 Ala. 124, 123 So.2d 527 (1960). Thus, although an employer could be reimbursed for any workers' compensation benefits or death benefits paid to the employee or the deceased employee's dependents, the employer could not be reimbursed for medical benefits expended to care for the injured employee. In 1992, § 25-5-11(a) was amended to add the following language, which is pertinent in the instant case: "For purposes of this amendatory act, the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee." (emphasis added); see Ala. Acts 1992, No. 92-537, § 8 (effective May 19, 1992).[1]
*84 Trott argues that the word "subrogation" in § 25-5-11(a) refers to the equitable remedy of subrogation and that it includes all the various rights and defenses attached to that remedy. Under equitable subrogation, a subrogee (here, the employer) has no greater rights than the subrogor (the employee); thus, the subrogee is entitled to only those remedies to which the subrogor is entitled, and no greater remedies. The instant action is a wrongful-death action under Ala.Code 1975, § 6-5-410. In such a case, the only recoverable damages are punitive damages intended to punish the tortfeasor for its actionsnot to compensate the plaintiff. Medical expenses, such as those Liberty Mutual seeks to recover here, are compensatory in nature and are not recoverable by a plaintiff in a wrongful-death action. Thus, Trott argues, because she, as the representative of Ronald Trott's estate, could not recover damages from Indiana Mills and Manufacturing, Inc., for medical *85 expenses, Liberty Mutual could not recover such damages either. In other words, Trott contends, Liberty Mutual cannot recover damages for medical expenses in a wrongful-death action when Trott herself cannot recover such expenses.
"The fundamental principle of statutory construction is that words in a statute must be given their plain meaning." Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 814 (Ala.2003). "When a court construes a statute, `[w]ords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.'" Ex parte Berryhill, 801 So.2d 7, 10 (Ala. 2001) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). Additionally, "`[c]ourts must liberally construe the workers' compensation law "to effectuate its beneficent purposes," although such a construction must be one that the language of the statute "fairly and reasonably" supports.'" Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003)(quoting Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala.1985)).
Section 25-5-11(a) provides that an employer has a right to "reimbursement" of compensation and benefits. As to medical benefits, however, the Code section states something different: "the employer shall be entitled to subrogation for medical and vocational benefits." The use of two different terms"reimbursement" and "subrogation"is a distinction that we infer has meaning. The 1992 amendment specifically used the term "reimbursement" in reference to compensation and "subrogation" in reference to medical benefits. "[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended. . . . The use of different terms within related statutes generally implies that different meanings were intended." 2A Norman Singer, Sutherland on Statutes and Statutory Construction § 46:06, at 194 (6th ed.2000) (footnotes omitted).[2] We presume that the use of two different words indicates that the legislature intended the two words be treated differently.
"Reimbursement" is a broad term implicating a simple repayment or indemnification. Black's Law Dictionary 1312 (8th ed.2004). Prior decisions interpreting this term for purposes of § 25-5-11(a) have interpreted it to refer to the repayment of compensation from the proceeds of an action against a third party, whether a negligence action or a wrongful-death action. Thus, an employer who had paid workers' compensation benefits, including disability or death benefits, is entitled to be reimbursed for those payments, even from a punitive-damages award. See, e.g., Millers Mut. Ins. Ass'n v. Young, supra (an employer may be reimbursed from the punitive-damages award in a wrongful-death action filed by a deceased employee's estate for death benefits the employer has paid).
This Court, however, has equated the word "subrogation" in § 25-5-11(a) specifically *86 with the equitable doctrine of subrogation. In Ex parte BE&K Construction Co., 728 So.2d 621 (Ala.1998), an employee who was injured on the job filed an action against his employer seeking workers' compensation benefits; the employee also filed an action against a third party based on the same incident. The employee settled the third-party action, and the employer sought to recoup from the settlement the disability benefits and medical expenses it had paid the employee, as well as to withhold future medical benefits that could be recouped from the settlement.
This Court, in holding that § 25-5-11(a) allowed an employer to withhold future medical benefits that it would be required to pay, held:
"A number of states have enacted statutes specifically providing the employer or its insurer subrogation as to the amounts it pays for the employee's future medical expenses. In situations, however, where state legislatures were not as precise in dealing with the issue of subrogation rights, courts have held that an insurer may withhold payment of future medical benefits until the recovery from a third-party tortfeasor is exhausted, at which time the insurer would resume payment. Further, Professor Larson, in his treatise on workers' compensation, reasons that `if the statute does not take pains to deal explicitly with the problem of future benefits, but merely credits the carrier for compensation paid . . . the correct holding is still that the excess of the third-party recovery over past compensation actually paid stands as a credit against future liability of the carrier.' A. Larson, Workmen's Compensation Law, § 74-31(e), p. 14-471 (1989 & Supp. 1990).
"We conclude that the Legislature . . . did not intend to limit subrogation to benefits that had been paid, but intended, as Professor Larson suggested, that the excess of the third-party recovery over the amount paid in past medical and vocational benefits should stand as a credit against future liability. Stated differently, we believe the Legislature intended that the law of subrogation apply. This Court has held:
"`The entire law of subrogation, conventional or legal, is based upon equitable principles. The equitable considerations that are the underpinnings of subrogation are (1) that the insured should not recover twice for a single injury, and (2) that the insurer should be reimbursed for payments it made that, in fairness, should be [made] by the wrongdoer.'
"Powell v. Blue Cross & Blue Shield, 581 So.2d 772, 774 (Ala.1990) (citations omitted); quoted in American Economy Ins. Co. v. Thompson, 643 So.2d 1350, 1352 (Ala.1994).
BE&K, 728 So.2d at 623-24. This passage in BE&K equates the term "subrogation" in § 25-5-11(a) with "equitable subrogation."
The 1992 legislation amending 25-5-11(a) used this term instead of "reimbursement," which was retained in other portions of the Code section, and we believe that the legislature's use of two different words indicates a distinction between the terms. We thus hold that the term "subrogation" as used in § 25-5-11(a) refers to the equitable doctrine of subrogation. BE&K, supra.[3]
*87 Under the equitable doctrine of subrogation, "a subrogee steps into the shoes of its subrogor and that subrogee only gets those rights that its subrogor has. The subrogee can have no greater rights." Star Freight, Inc. v. Sheffield, 587 So.2d 946, 958 n. 5 (Ala.1991). Because Liberty Mutual would not be able to recover medical expenses from Indiana Mills and Manufacturing if it were to step into Trott's shoes in the wrongful-death action, we hold that the Liberty Mutual's right to subrogation under § 25-5-11(a) similarly would not allow the recovery of medical benefits from the proceeds of Trott's wrongful-death action.
This is in accord with the equitable principles stressed in BE&K. To deny "subrogation" in this instance would not cause Trott to "recover twice for a single injury" because medical expenses are not recoverable in a wrongful-death action. Because the wrongdoer cannot be required to pay damages for medical expenses, the employer cannot argue that it "should be reimbursed for payments it made that, in fairness, should be [made] by the wrongdoer." BE&K, 728 So.2d at 624.
Liberty Mutual points out that the Court of Civil Appeals, in a factually similar case, held that an employer was entitled to recover medical benefits under § 25-5-11(a) in a wrongful-death action. See Municipal Workmen's Comp. Fund, Inc. v. Jolly, 709 So.2d 1230 (Ala.Civ.App. 1997). However, that decision does not analyze the distinction between the words "reimbursement" and "subrogation" in § 25-5-11(a) or explain how it reached its conclusion. Additionally, the court purported to rely on the authority of Millers Mut. Ins. Ass'n v. Young, supra, a case that involved the reimbursement of death benefits from a damages award in a wrongful-death action, not medical benefits. We therefore decline to follow the rationale of Jolly.
Conclusion
We answer the district court's certified question in the negative: under § 25-5-11(a), an employer is not entitled to be reimbursed for medical benefits from amounts recovered from a third party in a wrongful-death action filed by the employee-decedent's personal representative.
QUESTION ANSWERED.
COBB, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.
SEE, STUART, BOLIN, and MURDOCK, JJ., concur specially.
SEE, Justice (concurring specially).
I concur in the main opinion. I write specially to clarify my understanding of Ala.Code 1975, § 25-5-11.
Under Ala.Code 1975, § 25-5-11(a), if a third party is found liable for an injury to an employee, then "[t]o the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death." "Compensation" is defined in § 25-5-1(1) as "[t]he money benefits to be paid on account of injury or death . . ."; however, expressly excluded from the definition of compensation are "medical and surgical treatment and attention, medicine, medical and surgical supplies, and crutches and apparatus furnished an employee on account of an injury." Thus, the statutory right of the employer to "reimbursement" does not include a right to reimbursement for medical expenses paid to, or on behalf *88 of, the employee. Liberty Mutual paid for Ronald D. Trott's medical treatment, and because the payment was for medical treatment, Liberty Mutual is not entitled to "reimbursement" under § 25-5-11(a).
Section 25-5-11(a) does provide that "the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee. . . ." Thus, under § 25-5-11(a), Liberty Mutual has a subrogation right. Under the circumstances of the case before us, however, this right is of no value to Liberty Mutual. "Under the general principles of subrogation[,] a subrogee steps into the shoes of its subrogor and that subrogee only gets those rights that its subrogor has. The subrogee can have no greater rights." Star Freight, Inc. v. Sheffield, 587 So.2d 946, 958 n. 5 (Ala. 1991). In this case, Ronald D. Trott, the employee, is deceased, and, therefore, has no right to the recovery of medical expenses under Alabama law. As the main opinion explains,
"[m]edical expenses, such as those Liberty Mutual seeks to recover here, are compensatory in nature and are not recoverable by a plaintiff in a wrongful-death action. . . .
". . . .
". . . Because Liberty Mutual would not be able to recover medical expenses from Indiana Mills and Manufacturing if it were to step into Trott's shoes in the wrongful-death action, we hold that Liberty Mutual's right to subrogation under § 25-5-11(a) similarly would not allow the recovery of medical benefits from the proceeds of Trott's wrongful-death action."
972 So.2d at 84-87. All such rights to recover medical benefits have been extinguished and replaced by the right to punitive damages measured only by the wrongfulness of the act that caused the death. See Ala.Code 1975, § 6-5-410; Huckaby v. East Alabama Med. Ctr., 830 F.Supp. 1399, 1403 (M.D.Ala.1993) ("It is only where the plaintiff has filed a personal injury action before his death, and then dies, that both the wrongful death and personal injury claims may be maintained."); Airheart v. Green, 267 Ala. 689, 692, 104 So.2d 687, 690 (1958) ("`[Wrongful-death] damages are entirely punitive, imposed for the preservation of human life. . . . The punishment by way of damages is intended not alone to punish the wrongdoer, but as a deterrent to others similarly minded.'" (quoting Liberty Nat'l Life Ins. Co. v. Weldon, 267 Ala. 171, 190, 100 So.2d 696, 713 (1957))). Thus, Liberty Mutual, as the subrogee of Trott's rights, has no claim for Trott's medical expenses.
Liberty Mutual argues that this Court should construe the term "subrogation" to mean "reimbursement," thereby allowing it to recover its medical expenses out of the judgment in the wrongful-death action; however, the legislature is presumed to know the difference between the terms "reimbursement" and "subrogation." Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala.2003) ("[This Court] will presume that the Legislature knew the meaning of the words it used when it enacted the statute."). I note that the legislature uses the terms "reimbursement" and "subrogation" in the same paragraph, indicating that, though well aware of the possibility that it could again use the term "reimbursement," it chose instead to use term "subrogation" when it defined the employer's claim to medical expenses. We presume that when the legislature uses two different terms, it means two different things.[4]
*89 Because Alabama's wrongful-death statute permits recovery of only punitive damages, it may be that just as death benefits are reimbursable from a punitive-damages award in a wrongful-death action, other funds paid to or on behalf of the insured also should be reimbursable from the award, or it may be that the right to recover for medical expenses should survive the death of the insured; however, "the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama." Boles v. Parris, 952 So.2d 364, 367 (Ala.2006). "Matters of policy are for the Legislature and, whether wise or unwise, legislative policies are no concern to the courts." Marsh v. Green, 782 So.2d 223, 231 (Ala.2000).
I, therefore, concur in the main opinion.
STUART and BOLIN, JJ., concur.
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to add that the holding in this case is in accord with a certain portion of this Court's holding in Ex parte BE&K Construction Co., 728 So.2d 621 (Ala.1998), and the holdings of this Court in two other cases. Specifically, this Court explained in BE&K that "in situations where the injured employee recovers from a third-party tortfeasor, the amount of that recovery attributable to the employee's medical or vocational expenses" is to be applied against the worker's compensation insurer's obligation for those expenses and that the trial court must "determine, using equitable principles applicable to subrogation rights, which part of [the employee's] settlement is attributable to his medical expenses." 728 So.2d at 624 (emphasis added). Likewise, our holding today is in accord with this Court's opinion in Ex parte Miller & Miller Construction Co., 736 So.2d 1104, 1105 (Ala.1999), in which this Court also stated that the trial court was required "to determine, using equitable principles applicable to subrogation rights, which part of [the employee's] settlement is attributable to medical expenses," and this Court's opinion in Ex parte Williams, 895 So.2d 924, 929 (Ala. 2004), explaining that "[w]here the evidence indicates that the employee will incur future medical and vocational expenses, the trial court must determine the portion of the settlement or judgment that is reasonably attributable to those future medical and vocational expenses."
NOTES
[1] Section 25-5-11(a) now provides in its entirety:
"(a) If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not the party is subject to this chapter, the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death, and the amount of the damages shall be ascertained and determined without regard to this chapter. If a party, other than the employer, is a workers' compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer, or any officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation, or is a labor union, or any official or representative thereof, or is a governmental agency providing occupational safety and health services, or an employee of the agency, or is an officer, director, agent, or employee of the same employer, or his or her personal representative, the injured employee, or his or her dependents in the case of death, may bring an action against any workers' compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer, labor union, or the governmental agency, or person, or his or her personal representative, only for willful conduct which results in or proximately causes the injury or death. If the injured employee, or in case of death, his or her dependents, recovers damages against the other party, the amount of the damages recovered and collected shall be credited upon the liability of the employer for compensation. If the damages recovered and collected are in excess of the compensation payable under this chapter, there shall be no further liability on the employer to pay compensation on account of the injury or death. To the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death. If the employee who recovers damages is receiving or entitled to receive compensation for permanent total disability, then the employer shall be entitled to reimbursement for the amount of compensation theretofore paid, and the employer's obligation to pay further compensation for permanent total disability shall be suspended for the number of weeks which equals the quotient of the total damage[s] recovery, less the amount of any reimbursement for compensation already paid, divided by the amount of the weekly benefit for permanent total disability which the employee was receiving or to which the employee was entitled. For purposes of this amendatory act, the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee; however, if a judgment in an action brought pursuant to this section is uncollectible in part, the employer's entitlement to subrogation for such medical and vocational benefits shall be in proportion to the ratio the amount of the judgment collected bears to the total amount of the judgment."
[2] See also Hatcher v. Diggs, 76 Ala. 189, 193 (1884):
"It will not be intended, that the legislature used different words in the same sentence, in the same sense, and with no other or different effect. The presumption is, that the law-maker intended a difference. And especially is this true, where, in an amendatory act, the words of the original act are used, and in the same order, to express the same ideas, and immediately following, in the same sentence, another word is inserted, relating to the same subject-matter. Such word, thus inserted, must be taken to express a different idea, and to have a different operation."
[3] Given the definitions of the words "reimbursement" and "subrogation," we do not believe that the words are synonyms. See generally Ex parte HealthSouth Corp., [Ms. 1060296, May 4, 2007] (discussing the interpretation of synonyms in statutes). Note from the reporter of decisions: On August 24, 2007, the Supreme Court withdrew the May 4, 2007, opinion in HealthSouth and substituted another one. The substituted opinion contains the same discussion. Ex parte HealthSouth Corp., [Ms. 1060296, August 24, 2007] ___ So.2d ___, ___ (Ala. 2007).
[4] Richardson v. Stanford Props., LLC, 897 So.2d 1052, 1058 (Ala.2004) ("`"There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used."'" (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997), quoting in turn other sources)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589708/ | 84 F.Supp. 220 (1949)
McCRAE
v.
JOHNSON.
No. 4332.
United States District Court D. Maryland.
May 3, 1949.
*221 Jack M. Fox, of Baltimore, Md., for plaintiff.
Jules Shefferman, of Baltimore, Md., for defendant.
CHESNUT, District Judge.
The complaint in this case, by a tenant against his landlord, is based on the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1881 et seq. The particular section involved is to be found in 50 U.S.C.A. (War and National Defense Appendix Supplementary Pamphlet) § 1895. The tenant claims treble damages in the amount of $429 and reasonable attorney's fees. The defendant has filed a motion to dismiss the suit on the ground that the court lacks jurisdiction because the amount in controversy does not exceed $3,000 exclusive of interest and costs. After hearing counsel and re-examining the applicable law, I have concluded that the motion to dismiss must be granted.
It is, of course, well known that federal courts are courts of limited jurisdiction; and the United States District Court has only that jurisdiction which is *222 expressly conferred by Act of Congress, and within the constitutional grant of power of Article 3 of the Federal Constitution. Therefore when the jurisdiction of the court is challenged it is always necessary to be able to point to some federal statute which confers the jurisdiction in the particular case. Where the suit is based on an Act of Congress, as in the instant situation, the grant of jurisdiction may be contained in the wording of the particular Act; but if not found there, then the jurisdiction does not exist unless it can be found to have been granted generally by an Act of Congress conferring jurisdiction in various classes of cases sufficiently inclusive to embrace the subject matter of the particular statute on which the cause of action is based.
Section 1895 of title 50 U.S.C.A.Appendix, authorizes a suit for damages by a tenant against a landlord who has charged and collected rental above the legally authorized amount. The measure of damages recoverable as stated in the section is "reasonable attorney's fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceeded the maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: provided, that the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation."
It will be noted that the particular statute gives jurisdiction to any federal court "of competent jurisdiction". The District Court of the United States is not specifically mentioned in the grant. As no other provision of the Housing and Rent Act of 1947 is relied on or has been called to my attention to support the jurisdiction, it thus becomes necessary to look at the statutes which generally confer jurisdiction on the district court.
Such statutes are now codified in the Revised Judicial Code, title 28 U.S.C.A. §§ 1331-1359. Section 1331 confers jurisdiction on the district courts in all cases arising under the Constitution, laws or treaties of the United States (which, of course, includes the instant case) but only if the amount in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, which, of course, is not the case here. Section 1332 confers jurisdiction in cases of diversity of citizenship where a like amount is in controversy. Then sections 1333 to 1359 confer jurisdiction or deal with the subject matter of jurisdiction in various specific classes of cases arising under federal laws (that is, involving a federal question so called). An examination of these latter sections will show that none of them includes or has any reasonable application to the Housing and Rent Act of 1947, with the possible exception of section 1355 which confers jurisdiction on the district courts exclusive of the State courts "of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress."
It will be noted that the instant suit is not brought by an officer of the government but by the tenant for his own account to collect damages which are described in the suit as "liquidated damages". It has just been decided by the Third Circuit that a suit of this nature under the 1947 Rent Act is not a suit to recover a penalty under section 1355, and in this view I concur. Fields v. Washington, 3 Cir., 173 F.2d 701. See also Huntington v. Attrill, 146 U.S. 657, 673-674, 13 S.Ct. 224, 36 L.Ed. 1123; Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-584, 62 S.Ct. 1216, 86 L.Ed. 1682; Sullivan v. Associated Billposters and Distributors, 2 Cir., 6 F.2d 1000, 1008-1009, 42 A. L.R. 503; Lambros v. Brown, 184 Md. 350, 41 A.2d 78; Bowles v. Farmers National Bank, 6 Cir., 147 F.2d 425; Porter v. Warner Holding Co., 328 U.S. 395, 401-402, 66 S.Ct. 1086, 90 L.Ed. 1332; Testa v. Katt, 330 U.S. 386, 389, 67 S.Ct. 810, 91 *223 L.Ed. 967, 172 A.L.R. 225. For a full discussion of the question see an article in 21 Journal of the National Association of Referees in Bankruptcy, p. 39 (January 1947), by Robert Stephen Oglebay. Pertinent also in this regard is that the statute under consideration (50 U.S.C.A. War Appendix, § 1895) does not give an unqualified right to treble damages, but, in addition to limiting the right to sue to the tenant, provides that the amount of the liquidated damages shall be limited to the amount of the overcharge if the landlord proves that such overcharge was neither wilful nor the result of the failure to take practicable precautions against the occurrence of the violation.
In the Third Circuit in the case just referred to, Fields v. Washington, in a clearly expressed opinion by Circuit Judge Maris, it was held, in affirming the New Jersey District Court, that the latter court did not have jurisdiction to entertain a suit under the 1947 Act as the amount in controversy was less than $3,000. The only other judicial decision that I have noted precisely on this point of jurisdiction under the 1947 Act is Adams v. Backlund, D.C.Neb., 81 F.Supp. 643, which, however, upheld the jurisdiction.[1] I conclude I should follow the only appellate decision on this point.
It may seem somewhat surprising that the 1947 Act does not give jurisdiction of suits by tenants against landlords unless the amount in controversy exceeds $3,000, in view of the well known fact that many such suits, irrespective of the amount involved, were instituted and adjudicated by the district courts and their jurisdiction upheld in many cases heretofore arising under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. For instance, see Powell v. Rhine, D.C., 71 F.Supp. 953; Strickland v. Sellers, D.C., 78 F.Supp. 274. The reason for the difference as to the jurisdiction under the 1942 and 1947 Acts respectively is to be found in the wording of the respective Acts conferring jurisdiction. This is clearly pointed out by Judge Maris in Fields v. Washington, supra. The 1942 Act with amendments prior to 1947, sec. 205(e), 50 U.S.C.A. War Appendix, § 925(e), provided that
"Any action under this subsection by either the buyer or the Administrator, as the case may be, may be brought in any court of competent jurisdiction." (Italics supplied)
It will be noted that this phraseology is practically the same as that contained in the 1947 Act; but it is importantly to be noted that in addition to this phraseology in section 925(e) it was provided in sec. 925(c) that
"The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act [s. 904 of this App.], and, concurrently with State and Territorial courts, of all other proceedings under section 205 of this Act [this section]." (Italics supplied)
Thus it will be seen that by the 1942 Act jurisdiction was particularly and specifically conferred upon the district courts without any mention of or requirement as to the amount in controversy. But I fail to find any similar grant of jurisdiction to district courts in the 1947 Act. Certainly counsel have not been able to point to any.
The result in this case with respect to jurisdiction may also at first seem surprising when it is recalled that the jurisdiction of the district courts has been heretofore upheld in very many cases of suits by employees against employers based on the Fair Labor Standards Act of 1938 which provides, in section 16, 29 U.S.C.A. § 216, that actions by employees to recover for unpaid minimum wages or overtime compensation (and an additional equal amount as liquidated damages) "may be maintained in any court of competent jurisdiction". Here again the wording of *224 the grant of jurisdiction is quite similar to that of the 1947 Act and would not of itself seem to establish jurisdiction irrespective of the amount involved. But the answer is that the Fair Labor Standards Act is based on the interstate commerce power of Congress and therefore suits under it fall within the provisions of section 1337 of title 28 (formerly 28 U.S.C.A. § 41(8) which provides that "district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies". Williams v. Jacksonville Terminal Co., 315 U.S. 386, 390, 62 S.Ct. 659, 86 L.Ed. 914.
I have been unable to find any legislative history commenting on the change in phraseology in the grant of jurisdiction in the 1947 Act as compared with the prior Act of 1942. This may also seem somewhat surprising in view of the large number of cases which have been brought in the district courts under the 1942 Act with its amendments. But I do note that in submitting the later 1949 Housing and Rent Act the report of the Committee briefly, and apparently inadvertently, referred to the subject of jurisdiction of the federal courts as concurrent with that of the State courts.[2] That is to say, the draftsman of the report would seem to have had the impression that the grant of jurisdiction in the 1947 Act was similar to that in the 1942 Act. But this would appear to have been an inadvertent mistake. We must, of course, deal with the Act as enacted. It is also to be remembered that until 1947 the 1942 Act remained in existence with only amendments as to particular sections, while the 1947 Act became an entirely new enactment, which in turn has been amended as to certain sections in 1948 and again in 1949, but without change in the phraseology of the wording granting jurisdiction to the courts.
For these reasons I conclude that the result is that the 1947 Act does not confer jurisdiction on the federal district courts unless the amount in controversy exceeds $3,000, and as it does not exceed this sum in the instant case, the motion to dismiss for want of jurisdiction must be and is hereby granted.
NOTES
[1] In a number of other cases the question of jurisdiction under the 1947 Act has been involved indirectly and in some few has been exercised without apparent question or discussion. See Sampson v. Thomas, D.C.Mich., 76 F.Supp. 691; Berry v. Heller, D.C.Pa., 79 F.Supp. 476; Fox v. 34 Hillside Realty Corp., D.C.N.Y., 79 F.Supp. 832; Poirier v. Desillier, D.C.Mass., 75 F.Supp. 402; Luftman v. Ross, D.C.N.Y., 75 F.Supp. 627; Adler v. Northern Hotel Co., D.C. Ill., 80 F.Supp. 776; West v. Winston, D.C.Pa., 8 F.R.D. 311.
[2] Senate Report No. 127, 1st Sess. 80th Cong. U. S. C. Congressional Service, 1949, p. 351. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1702653/ | 401 So.2d 987 (1981)
Lana J. HINGLE, Administratrix
v.
PLAQUEMINE OIL SALES CORPORATION, Eugene C. Nunez and Eugene E. Leon, Jr.
No. 81-C-1411.
Supreme Court of Louisiana.
June 22, 1981.
Writ denied.
WATSON, J., recused.
LEMMON J., would grant the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744943/ | 998 So. 2d 94 (2009)
STATE ex rel. Roy Lee WILLIAMS
v.
STATE of Louisiana.
No. 2008-KH-0963.
Supreme Court of Louisiana.
January 16, 2009.
Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So. 2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So. 2d 694. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455511/ | 798 S.W.2d 472 (1990)
In re BOARD OF REGISTRATION FOR THE HEALING ARTS, Appellant,
v.
Paul M. SPINDEN, Respondent.
No. WD 42927.
Missouri Court of Appeals, Western District.
October 9, 1990.
Rehearing Denied December 4, 1990.
*473 William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for appellant.
G. Keith Phoenix, St. Louis, for respondent.
Before LOWENSTEIN, P.J., and FENNER and ULRICH, JJ.
LOWENSTEIN, Presiding Judge.
The narrow issue posed in this action in prohibition concerns the limits of discovery in an administrative case. Specifically, should a doctor, whose license is governed by a board that has filed a disciplinary complaint against him, be allowed to discover from the board before trial: 1) incident, occurrence or investigative reports proposed or possessed by the board; 2) reports created by or in the Board's possession relating to the facts of the complaint; 3) statements taken relating to the facts; and, 4) documents provided by the board to any person expected to be called as an *474 expert witness? The Board of Registration for the Healing Arts (Board) objected to a doctor's discovery based on the attorney-client privilege and the work product doctrine. The circuit court ultimately affirmed the ruling of the Administrative Hearing Commission's (AHC) commissioner, respondent Spinden, and allowed discovery.
The Board was created under § 334.120.1, RSMo 1986[1] "for the purpose of registering, licensing and supervising all physicians and surgeons ... in this state." Under § 334.240, the Board licenses and supervises physicians. It also investigates claims after receiving information that a doctor has violated a law pertaining to the practice of medicine. Upon probable cause, the board files a "complaint" with the A.H.C. See C.S.R. 15-1.010 through 2.170. The A.H.C. conducts hearings and may order suspension, revocation, or probation of the license. Under the law and the Code of State Regulations any party may obtain discovery in the same manner and on the same conditions as provided by the Rule for circuit court. After hearing, the matter may be appealed to circuit court. In this matter the Board on March 13, 1989 filed a complaint pursuant to §§ 621.015-621.205 against a licensed physician, Richard Lagueruela, an anesthesiology resident at Children's Hospital, Washington University, St. Louis, Missouri. As early as September 1988 the Board and counsel from the Attorney General's office began investigating the doctor. The Board sought, "disciplinary action against the license of... Lagueruela to practice the healing arts for violations of Chapter 334...."
The violations spelled out by the complaint chronicle a sad series of events that are basically not in dispute. A thirteen year old patient had a spinal fusion to correct curvature of the spine caused by Duchene's muscular dystrophy. After time on a ventilator, the child developed "Adult Respiratory Distress Syndrome." Following two meetings with the doctor, the parents elected to withdraw ventilator support and have the boy "no-coded," which means that no heroic effort would be made if respiratory arrest occurred. Without filling out the required prescriptions, Dr. Laguereula administered morphine sulfate, pheno-barbital sodrin, and potassium chloride, apparently to ease the final pain after disconnecting the ventilator. Failure to document the use of these drugs constituted the first count of the Board's complaint; the unhooking of the ventilator constituted the second count. The Board's third count alleges that Dr. Lagueruela deliberately misstated the primary cause of death on the death certificate as Adult Respiratory Distress Syndrome instead of the administration of drugs.
When faced with discovery requests, the Board proclaimed it had "provided the names of persons who have knowledge in answers to interrogatories and respondent may contact these witnesses directly." The law of this state has long been that names and addresses of witnesses are not normally subject to any work product immunity. State ex rel. Mueller v. Dixon, 456 S.W.2d 594, 598 (Mo.App.1970). But Dr. Lagueruela continued to seek discovery of the actual reports and statements. The A.H.C.'s hearing officer rejected the Board's claims of attorney-client privilege and work product, and ordered the Board to comply with discovery. The Board submitted affidavits of its attorney and investigators to show that the materials fell under the attorney-client privilege. In sum, these affidavits discussed when and why interviews and investigations were conducted after the Board set up this file concerning the doctor. Spinden's order hones in on the information sought under the writ as being primarily 1) the reports of facts prepared by the Board prior to the attorney entering the case, 2) reports of facts which "at some point [were] given to the Board's attorney," and, 3) statements of witnesses. This order specifically noted that if any part of the materials were truly the impressions of conclusions or legal theories of Board counsel, these parts would be protected.
*475 The Board obtained a preliminary order prohibiting Spinden from enforcing discovery, but the circuit court then quashed its writ. This appeal followed.
In an action for prohibition, the law presumes that the trial judge acted correctly. State ex rel. Martin v. Peters, 649 S.W.2d 561, 563 (Mo.App.1983). To overcome this presumption, the party seeking prohibition has the burden to show that the trial judge exceeded his jurisdiction. Id. Decisions pertaining to discovery are reversed only for an abuse of discretion. Williams Carver Co. v. Poos Brothers, Inc., 778 S.W.2d 684, 687 (Mo.App.1989).
As stated earlier, the Rules apply to discovery issues before the A.H.C. Section 536.073.2(1). The applicable rule is 56.01, which governs general discovery principles. Rule 56.01(b)(1) allows parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." (Emphasis added.) Rule 56.01(b)(3) governs discovery of trial preparation materials. It permits a party to discover "documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule 56.01 ..." (Emphasis added.) Thus, any material that is privileged under Rule 56.01(b)(1) is not discoverable under rule 56.01(b)(3).
Some confusion may exist because information falling under either the attorney-client or the work product concepts was absolutely immune from discovery before 1975. Rule 56.01, effective as of January 1, 1975, changed this practice. Subdivision (b)(1) retained complete immunity, absent a client's waiver, for the attorney-client privilege. But Subdivision (b)(3) demoted work product to a qualified immunity and permitted discovery only upon a showing of need and hardship. May Dept. Stores Co. v. Ryan, 699 S.W.2d 134, 137 (Mo.App.1985). Thus, if material sought to be discovered is classified under the attorney-client privilege, it is absolutely immune from discovery, and the work product doctrine issue becomes irrelevant.
The Board's first point on appeal is that Dr. Lagueruela seeks to discover materials that are privileged under Rule 56.01(b)(1). The attorney-client privilege encompasses "any professionally oriented communication between attorney and client ... regardless of [whether it was prepared in] anticipation of litigation." May Dept. Stores Co. v. Ryan, 699 S.W.2d at 136. The phrase "professionally oriented communication" is vague. Both the appellant Board and the respondent Spinden rely on State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978), to resolve the issue. Great American was an original action in prohibition to decide whether three letters concerning fire loss claims, written by an attorney to his clients (insurance companies), were protected from discovery by the attorney-client privilege. The Great American court held that the letters fell within the ambit of attorney-client privilege, and it issued a permanent writ of prohibition. The players in the case were: (1) Cannova, owner of a restaurant destroyed by fire; (2) Mid-Continent Bank, loss-payee under Cannova's insurance policies; (3) insurance companies which issued the policies, also the relators in the case; (4) Risjord, author of the letters in question and also attorney to relators; and (5) GAB, investigator hired by Risjord and his clients. The letters contained: (1) results of attorney Risjord's investigation; (2) Risjord's conclusions, opinions, and impressions concerning the investigation results and case strategy; and (3) Risjord's recommendations to his clients (relators) about what they should do in the case.
Here the Board contends that as long as the party opposing discovery meets a three-prong test set out in Great American, the attorney-client privilege automatically attaches to prevent discovery. This test is as follows: (1) the attorney-client relationship must have existed at the time the communication was made or advice given; (2) the attorney-client relationship must have existed as to the subject matter of the communication or advice, or (3) the communication must have been made to the attorney in his professional capacity and on account of the attorney-client relationship. State *476 ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d at 386.
Spinden concedes that actual communications between an attorney and his client are privileged, but contends that investigative reports prepared by the client or at his direction are not privileged. The Great American court accurately characterizes the attorney-client relationship and the attorney-client privilege:
When a client goes to an attorney and asks him to represent him on a claim which he believes he has against someone or which is being asserted against him, even if he as yet has no knowledge or information about the claim, subsequent communications by the attorney to the client should be privileged. Some of the advice given by the attorney may be based on information obtained from sources other than the client. Some of what the attorney says will not actually be advice as to a course of conduct to be followed. Part may be analysis of what is known to date of the situation. Part may be a discussion of additional avenues to be pursued. Part may be keeping the client advised of things done or opinions formed to date. All of these communications, not just the advice, are essential elements of attorney-client consultation. All should be protected.
State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d at 384-85 (footnotes omitted).
But the court also distinguishes information that is not covered by the attorney-client privilege and thus, is discoverable.
This does not mean that discoverable factual information can be made privileged by being recited by the attorney or the client in their confidential communication. Only the actual attorney-client communications are privileged. If [the investigative report documents prepared by investigators who were hired by the attorney or client] had been attached to or discussed in the letters from Risjord [attorney] to Relators [client], the fact that the attorney's letters would be privileged would not cause the GAB [investigative] reports or FBI [investigative reports] to become protected by the attorney-client privilege. They would still be discoverable under Rule 56.01(b).
State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d at 384-385 (footnotes omitted).
The appellant Board argues that the attorney-client privilege applies because the Board's general counsel, Audrey Hanson, was involved in the investigation. Specifically, she was present when the Board decided to investigate Dr. Lagueruela, she later advised the Board's staff how to conduct the investigation, she communicated with the investigator throughout the investigation, and she reviewed evidence obtained in the investigation. The last cited language of Great American directly disposes of the Board's argument. Specifically, the investigative reports in this case are analogous to the GAB and FBI reports in Great American. In Great American, the letters sought to be discovered contained the attorney's mental impressions and trial strategy, and, thus, were privileged. The court, however, explicitly stated that even if the GAB or FBI investigative reports been attached to or discussed in the privileged letters, the reports would not become privileged. Thus, Ms. Hanson's mere involvement in the investigation does not shield the investigative reports from discovery. Appellant's first point on appeal is denied.
Appellant's second point is that the work product doctrine applies to shield the investigative reports from discovery. The work product doctrine applies to two types of information: opinion work product and trial preparation materials. Opinion work product concerns the client's litigation and includes mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. Opinion work product is absolutely immune from discovery. State ex rel. Spear v. Davis, 596 S.W.2d 499, 500-501 (Mo.App. 1980); Rule 56.01(b)(3). In Spear, the eastern district refused to prohibit an insurance company's adjuster from being deposed about a fire loss. The court ruled he could be questioned as to the facts of the investigation, but not as to mental impressions. *477 Id. at 501. Opinion work product is not in issue here.
Unlike opinion work product, trial preparation materials are qualifiedly immune from discovery. To be protected from discovery, trial preparation materials must be (1) documents or tangible things, and (2) prepared by or for a party or that party's representative, and (3) prepared in anticipation of litigation or for trial. Rule 56.01(b)(3). Thus, if one of these requirements is not met, the materials are discoverable. If all of the requirements are met, trial preparation materials may be discovered only if the party seeking discovery shows a substantial need for the items and an inability to get the substantial equivalent without undue hardship. Porter v. Gottschall, 615 S.W.2d 63, 65 (Mo. banc 1981); Rule 56.01(b)(3).
The Board argues that § 620.010.14(7) prevents Dr. Lagueruela from discovering the investigative reports. This statute was amended in 1989 to provide that "... Each agency is entitled to the attorney-client privilege and work product privilege to the same extent as any other person ..." This amendment adds nothing to the appellant's argument. Section 536.073.2(1) already provided that Supreme Court Rules of discovery applicable to circuit court civil actions also apply to proceedings before the A.H.C. These civil rules include Rule 56.01, which governs the general rules of discovery. The appellant's argument that § 620.010.14(7) protects the Board's investigative reports from discovery carries no weight.
The respondent argues that the Board fails to establish that the materials were prepared in the anticipation of litigation or for trial, the third requirement of Rule 56.01(b)(3), since the materials were prepared in the ordinary course of the Board's business. Spinden characterizes this "business" as investigating complaints under the Missouri General Assembly's mandate in § 334.240 which states "... the Board shall investigate, ..." Emphasis added. The facts show that the investigative reports were indeed prepared pursuant to § 334.240. The appellant counters that the reports were prepared in anticipation of litigation because the Board and physician must litigate the issue of whether cause exists to discipline the physician. This litigation occurs only if a doctor does not voluntarily submit himself to discipline nor ask to be a part of this action. Dr. Lagueruela did not voluntarily submit himself to discipline. The Board maintains, the investigative reports were necessarily prepared for use in disciplinary litigation before the A.H.C.
There are no Missouri cases applying the work product doctrine to disciplinary actions against professional licensees. The Board specifically analogizes the Board's position to that of an insurance company and relies on several cases involving insurers; St. Louis Little Rock Hospital v. Gaertner, 682 S.W.2d 146 (Mo.App.1984); May Dept. Stores Co. v. Ryan, 699 S.W.2d 134 (Mo.App.1985); Enke v. Anderson, 733 S.W.2d 462 (Mo.App.1987); See also: State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976); State ex rel. Faith Hosp. v. Enright, 706 S.W.2d 852 (Mo. banc 1986).
The Board's role, as defined by statute differs completely from that of an insurer. The Board's role is more active and prosecutial. In contrast, an insurer is passive because it does not defend its insured until a suit has been filed. Although the issue in Cain v. Barker, 540 S.W.2d at 51, differs from that here, the court points out the significance of whether the party bringing the suit is the party seeking discovery. In Cain, the defendant-insured gave a statement to his insurer. As relator, he sought a writ of prohibition to prevent plaintiff from discovering that statement. The plaintiff argued discovery should be allowed because the insured "waived any privilege ... since [he] has denied liability..." Cain v. Barker, 540 S.W.2d at 57. Although the Cain court ultimately denied discovery based on attorney-client privilege, it indicated party alignment is significant in deciding discovery issues: "In this case relator has not instituted the suit involving the collision in which he was involved. He is a defendant, brought into court involuntarily." Such is the alignment *478 here. The Board conducts investigations, recommends and metes out discipline, and files and prosecutes complaints against licensed physicians.
For support, the Board cites May Dept. Stores Co. v. Ryan, 699 S.W.2d at 134. In May, a customer was detained on suspicion of shoplifting. The customer sued for false imprisonment and sought to discover a report prepared by a May Company employee the same day as the incident. May Company transmitted the report to its liability insurer. The May court protected the report from discovery because it fell within the insurer-insured/attorney-client privilege and because it was prepared in anticipation of litigation and no showing of need and undue hardship was made. The May case differs from the case at bar because the May court held that the insurer-insured/ attorney-client privilege applied. No such privilege applies here. Dr. Lagueruela seeks to discover statements made and information gathered by a state-created entity that is statutorily compelled to monitor and regulate doctors. The facts here come closer to the St. Louis Little Rock Hospital v. Gaertner, 682 S.W.2d at 151, where discovery was allowed of an incident report where the hospital had an accident prevention program in place as a part of its ordinary course of business. St. Louis Little Rock Hospital, 682 S.W.2d at 151.
The rules of discovery are to be liberally construed. A licensee's eligibility to practice a particular profession is controlled by the Board. The government and the public have a right to expect entities like the Board to ensure that competent and ethical people practice these regulated professions. By the same token, in a disciplinary proceeding the licensee, as a matter of fair play, should be allowed to discover, within the Rules, all materials relating to those proceedings. Christiansen v. State Bd. of Accountancy, 764 S.W.2d 943, 952 (Mo.App.1988), and Christiansen v. State Bd. of Accountancy, 764 S.W.2d 952, 956 (Mo.App.1988).
The appellant argues that permitting discovery in this case unfairly allows Dr. Lagueruela to reap the benefits of the Board's labors. It seems more unfair to require a doctor to try to duplicate the Board's investigation so he can, at best, guess the strength of the Board's case against him. Requiring Dr. Lagueruela to show substantial need and undue hardship presupposes that the Board gathered its materials in anticipation of litigation and not in the ordinary course of business.
The Board further argues that if this court deems the investigative reports were prepared in the ordinary course of the Board's business, then the Board will essentially be deprived of work product immunity. This court disagrees. The work product doctrine would protect materials such as the Board's minutes, votes, and the broad category of materials constituting opinion work product. This is not an invitation for the Board to commingle its trial strategy information with its investigative reports. As proposed by Spinden such materials could be reviewed in camera, and information covered by work product doctrine could be expunged before allowing discovery. See e.g., Sires v. National Service Corp., 560 So. 2d 448, 449 (La.App. 1990).
As discussed earlier, the work product doctrine protects materials prepared in anticipation of litigation, but the "mere likelihood of suit is not sufficient to invoke the privilege." Stauffer Chemical Co. v. Monsanto Company, 623 F. Supp. 148, 152 (E.D.Mo.1985). Materials prepared in the ordinary course of business do not fall within the work product exception. Id. Even assuming the Board could satisfy the court that the materials were prepared for an imminent trial, this court rules such action was in the ordinary course of its business, defeating any privilege.
The trial court is authorized to control and limit discovery. Furthermore, the propriety of discovery is within the trial court's discretion and will not be disturbed except for abuse of discretion. Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d at 687. Appellant did not establish that the trial court abused its discretion in finding for the respondent Spinden. The finding *479 that the materials sought to be discovered were not the mental impressions of the attorney and not absolutely immune was correct. State ex rel. Spear v. Davis, 596 S.W.2d at 500. Likewise the finding that the materials were prepared in the ordinary course of the Board's business as mandated by § 334.240 was also correct. The ruling that the sought after materials were not privileged was correct because these materials clearly did not qualify for an attorney-client privilege. Instead, they were prepared in the ordinary and mandated course of the Board's business and fail to achieve a work product status. The material sought was relevant and material, and would provide the doctor-litigant access to proper information to develop his contentions and arguments as framed by the pleadings. State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 328 (Mo.App.1986). In so finding, the trial court neither erroneously declared nor erroneously applied the law. The judgment denying the writ is affirmed.
NOTES
[1] All references are to Revised Statutes of Missouri 1986 unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1020309/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4691
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ALVAN DEVON HOLT,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. William L. Osteen,
District Judge. (CR-04-53)
Submitted: August 9, 2006 Decided: August 30, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellant. Steven T. Meier, MALONEY AND MEIER, L.L.C., Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
The government appeals the judgment dismissing drug and
firearms charges against Alvan Devon Holt. The dismissal came
after the district court held that a search warrant -- whose
execution yielded the only evidence against Holt -- was not
supported by probable cause and that the fruits of the search were
not admissible under the good faith exception set forth in United
States v. Leon, 486 U.S. 897 (1984). We affirm.
I.
On the morning of January 2, 2004, Officer S.S. Greene of
the Charlotte Mecklenburg Police Department received information
from a confidential source about sales of marijuana. Greene was at
the time a police force veteran of over four years, who had more
than one year of experience in drug enforcement. He had been
involved in at least 350 drug arrests and 150 search warrants.
Greene presented the informant’s tip in an application to a state
magistrate for a search warrant for the single story dwelling
located at 235 Kingville Drive in Charlotte, North Carolina. The
application also described a person to be searched as “a black
male, called ‘Big Al’ known as Alvan Devon Holt, [born] 8/23/74
with medium complexion [and] approximately 6'3" and 265 pounds.”
J.A. 14. The affidavit that Greene submitted read in part:
I have received information from a confidential and
reliable informant who states they have been to the above
2
listed location and observed the above described black
male possessing and selling marijuana from the above
listed location. This informant has witnessed the above
described black male possessing and selling marijuana
from the above listed location within the last 48 hours.
The officer has known the informant for approximately 2
years. During this time, the informant has given me
information on drug activity that I have been available
[sic] to verify through my own independent
investigations. During this time, the informant has made
purchases of controlled substances under the direct
supervision of this officer. The informant admitted to
using a controlled substance and is familiar with how
marijuana is packaged for sale in the Charlotte area.
J.A. 14. This affidavit was the only support presented to the
magistrate. No additional testimony or information confirmed the
reliability of the source or established a nexus between the
premises to be searched and the alleged drug activity.
Based on the affidavit alone, the magistrate issued the
warrant on January 2, 2004. The warrant authorized the seizure of
“[m]arijuana, a controlled substance, evidence of ownership, access
or control of property, firearms, pagers, cellular phones, currency
an[d] other items of drug furtherance.” J.A. 14. Later that day,
officers searched the specified premises and found Holt as well as
quantities of marijuana and cocaine, a scale, a loaded firearm,
approximately $7,500 in cash, and other items suggesting drug
distribution. A three-count indictment filed in August 2004 in the
Western District of North Carolina charged Holt with possession of
a firearm after a felony conviction, in violation of 18 U.S.C.
§ 922(g)(1); possession with intent to distribute marijuana and
cocaine, in violation of 21 U.S.C. § 841(a)(1); and the use and
3
carrying of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1). The government’s case
against Holt consisted entirely of the evidence seized during the
January 2, 2004, search.
On November 15, 2004, two days before trial, Holt moved
to invalidate the search warrant and to suppress the evidence
seized. The court took the motion under advisement, permitted the
government time to respond, and proceeded with the trial. Holt was
convicted by the jury on all counts. A few days after the verdict,
the government submitted its response to Holt’s motion to suppress.
At the sentencing hearing in June 2005 the district court
granted Holt’s motion. The court determined that the affidavit
lacked critical information, even assuming that the confidential
source was sufficiently reliable. As the court explained:
There is no indication [in the affidavit] that [the
defendant] Big Al resides at the premises or has ever
been on the premises prior to this single occasion.
There is no indication that Big Al owns, or pays rent, or
is an invited guest at 235 Kingville Drive. There is no
information provided to show whether the sale was inside
or outside the house. There is no information that Big
Al had an additional amount of marijuana for sale or that
he would return with more at a later time. There is not
even an indication of the quantity sold on that one
occasion. In short, there is no information that links
ongoing or future drug activity to this home, and thus
there is no indication that a search of the home would
yield any evidence of drug activity.
J.A. 34-35. For these reasons, the court continued, the affidavit
failed to provide the magistrate with a substantial basis for
determining that drugs and other contraband would be found at 235
4
Kingville Drive. J.A. 35. As the affidavit was the only
information presented to the magistrate, the district court
concluded that the magistrate lacked sufficient information to
exercise independent judgment about the existence of probable
cause. Accordingly, the court ruled that the warrant was invalid.
See Leon, 468 U.S. at 914-15; Illinois v. Gates, 462 U.S. 213, 238-
39 (1983); United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir.
1993).
The district court further concluded that the Leon good
faith exception did not save the fruits of the search from
suppression. “[A]ny officer who had experience and training should
have known that Officer Greene’s affidavit, which is the only
information the magistrate had, provided no [indicia of probable]
cause to believe contraband would be found at 235 Kingville Drive.”
J.A. 45. From an objective standpoint, the court suggested, any
reasonably well-trained officer -- especially one with Officer
Greene’s training and experience -- would have known that the
search was illegal despite the magistrate’s authorization. The
affidavit thus fit the third circumstance identified in Leon that
bars application of the good faith exception. Specifically, “the
officer will have no reasonable grounds for believing that the
warrant was properly issued” because the affidavit on which the
warrant was based was “so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable.”
5
Leon, 468 U.S. at 923 (footnote and internal quotation marks
omitted); see also United States v. Bynum, 293 F.3d 192, 195 (4th
Cir. 2002). The district court suggested that had the officers
taken steps to verify Holt’s connection to the home, for example by
providing “a utility bill in his name or some information that his
girlfriend owned the home, the search may have survived scrutiny.”
J.A. 45-46. Absent such a step, the search was invalid even under
the Leon exception. Accordingly, the district court granted Holt’s
motion to suppress. J.A. 46.
In the meantime, the government had stipulated that the
case would have to be dismissed if the evidence from the search was
suppressed, because no other evidence was presented at trial.
Therefore, having granted Holt’s motion, the district court entered
a judgment order dismissing the charges against him. J.A. 47. The
government appeals the judgment, arguing that the district court
erred in suppressing the evidence seized pursuant to the search
warrant.
II.
After reviewing the joint appendix and the briefs of the
parties, we affirm on the reasoning of the district court. See
United States v. Holt, No. 3:04-CR00053 (W.D.N.C. July 7, 2005)
(mem. op.). We dispense with oral argument because the facts and
6
legal contentions are adequately presented in the materials before
the court, and argument would not aid the decisional process.
AFFIRMED
7 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1020415/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD MILTON BOYSAW,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-03-128)
Submitted: August 2, 2006 Decided: September 6, 2006
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Barry L. Proctor, Abingdon, Virginia, for Appellant. John L.
Brownlee, United States Attorney, R. Andrew Bassford, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Milton Boysaw appeals his convictions for felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
(2000), and felon in possession of ammunition in violation of 18
U.S.C. § 922(g)(1) (2000). We affirm Boysaw’s conviction, but we
vacate his sentence and remand for resentencing in light of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
Boysaw first contends that the district court erred in
denying his motion for a judgment of acquittal. We review the
denial of a motion for judgment of acquittal de novo. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). A verdict
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is defined 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)). In resolving issues of
substantial evidence, we do not weigh evidence or reassess the
factfinder’s assessment of witness credibility. United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002).
The elements of a violation of § 922(g)(1) are that:
(1) the defendant previously had been convicted of a crime
- 2 -
punishable by a term of imprisonment exceeding one year; (2) the
defendant knowingly possessed the firearm or ammunition; and
(3) the possession affected commerce because the firearm or
ammunition had traveled in interstate or foreign commerce. United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995). Boysaw
stipulated to a prior felony conviction and to the interstate
commerce element, leaving only the knowing possession element in
dispute. Possession may be actual or constructive. United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). A person has
constructive possession of an item if he knows of its presence and
exercises or has the power to exercise dominion and control over
it. United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005).
Possession may be established by circumstantial evidence. United
States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993).
Federal agents found a firearm on a tray next to the bed
in the front upstairs bedroom of Boysaw’s house. Boysaw
demonstrated knowledge of the firearm when he told agents that the
gun belonged to his son Donald Eugene Boysaw (“Little Donald”).
Before Boysaw was taken from the house, he requested a pair of
shoes and cigarettes, which agents found next to the tray where the
gun was found. Boysaw contended that he did not spend much time in
that bedroom or upstairs, but Boysaw had many possessions in the
upstairs bedrooms. The federal agents also found ammunition in
various places in the house, including prescriptions and bills in
- 3 -
Boysaw’s name in a drawer in a bedroom, and in drawers in the
kitchen, and plainly visible in a jar in the basement. Taking the
view most favorable to the Government, the evidence demonstrates
that Boysaw had the knowledge and the power to exercise dominion
and control over the firearm and ammunition and possessed the
items. There was sufficient evidence for the jury to conclude
defendant’s guilt beyond a reasonable doubt.
Boysaw next contends that his trial counsel was
ineffective for agreeing to stipulations, not calling witnesses,
calling Little Donald to testify while incompetent, and for not
having a trial strategy. Claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our review of the
record reveals that Boysaw has failed to meet the high burden
necessary to raise ineffective assistance of counsel on direct
appeal.1
1
Boysaw contends the district court abused its discretion when
it denied his motion for a new trial because his trial counsel was
ineffective. Pursuant to Rule 33 of the Federal Rules of Criminal
Procedure, a district court may grant a defendant’s motion for a
new trial “if the interest of justice so requires.” Fed. R. Crim.
P. 33(a). This court reviews the denial of a Rule 33 motion for
abuse of discretion. United States v. Adam, 70 F.3d 776, 779 (4th
Cir. 1995). As the record does not establish that any of counsel’s
actions were unreasonable and resulted in ineffective assistance,
Boysaw failed to establish grounds for a new trial. The district
court did not abuse its discretion in denying the motion.
- 4 -
Boysaw also contends that the prosecutor improperly
persuaded his counsel into accepting the stipulations and that the
stipulations were inaccurate. To prevail on a claim of
prosecutorial misconduct, Boysaw must establish that the
prosecutor’s conduct was improper and prejudicially affected his
substantial rights so as to deprive him of a fair trial. United
States v. Golding, 168 F.3d 700, 702 (4th Cir. 1999). A forensics
report verified the accuracy of the stipulations and that the
Government could prove the facts contained in the stipulations.
The prosecutor properly agreed to the stipulations and his conduct
did not affect Boysaw’s substantial rights.
Boysaw further contends that the district court committed
judicial misconduct by allowing Little Donald to testify because
Boysaw asserts Little Donald was not competent to testify. All
witnesses are presumed competent to testify. United States v.
Odom, 736 F.2d 104, 112 (4th Cir. 1984); see also Fed. R. Evid.
601. “Whether the witness has such competency is a matter for
determination by the trial judge after such examination as he deems
appropriate and his exercise of discretion in this regard is to be
reversed only for clear error.” Id. at 112-13.
The district court had ample opportunity to observe
Little Donald on the witness stand. Little Donald answered every
question completely and when asked if he understood his rights he
replied that he did. The district court stated that Little Donald
- 5 -
may have been asleep in the witness room prior to testifying, but
when he took the stand as a witness he seemed to know what he was
doing in the courtroom. The district court did not clearly err by
allowing Little Donald to testify.
Boysaw next contends that during sentencing the district
court erred when it designated him an armed career criminal. A
defendant convicted of violating § 922(g)(1) qualifies as an armed
career criminal under 18 U.S.C. § 924(e) if he has three prior
convictions for a serious drug offense. The term “serious drug
offense” includes “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for which
a maximum term of imprisonment of ten years or more is prescribed
by law.” 18 U.S.C. § 924(e). In 1983, Boysaw had three separate
Virginia convictions for distribution of cocaine under Va. Code
Ann. § 18.2-248. Each of those convictions carried a maximum
penalty of forty years’ imprisonment, satisfying the statutory
requirement under 18 U.S.C. § 924(e). Boysaw claims the drug
offenses should not have been considered due to their age; however,
we have held that there is no temporal restriction on prior
felonies for the purposes of the Armed Career Criminal Act. United
States v. Presley, 52 F.3d 64, 69-70 (4th Cir. 1995) (upholding the
district court’s consideration of a conviction that occurred over
- 6 -
twenty years previously). The district court properly determined
that Boysaw qualified as an armed career criminal.
Boysaw further contends that the district court enhanced
his sentence with judicially found facts in violation of Booker.
Boysaw did not object to the use of judicially found facts during
his sentencing. When a Booker sentencing claim is raised for the
first time on appeal, this court reviews for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To meet the
plain error standard: (1) there must be an error; (2) the error
must be plain; and (3) the error must affect substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). If the three
elements of the plain error standard are met, the court may
exercise its discretion to notice error only if the error seriously
affects “the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (citation omitted).
In Booker, the Supreme Court concluded the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the judge
by a preponderance of the evidence violated the Sixth Amendment.
Booker, 125 S. Ct. at 746, 750. The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (appellate
- 7 -
standards of review for guideline issues), thereby making the
guidelines advisory. Booker, 125 S. Ct. at 756-57.
Boysaw claims that Booker was violated in two respects.
He first contends the district court erred when it enhanced his
sentence with his prior convictions that were not charged in his
indictment nor admitted by him in his guilty plea. In
Almendarez-Torres v. United States, 523 U.S. 224, 245 (1998), the
Supreme Court held that the government need not allege in its
indictment and need not prove beyond reasonable doubt that a
defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence. See United
States v. Cheek, 415 F.3d 349, 351-53 (4th Cir. 2005)
(Almendarez-Torres was not overruled by Apprendi or Booker). We
have ruled that the nature and occasion of prior offenses are facts
inherent in the convictions and that the government does not have
to allege prior convictions in the indictment or submit proof of
them to a jury. United States v. Thompson, 421 F.3d 278, 285-87
(4th Cir. 2005). The district court did not err when it used
Boysaw’s prior convictions in calculating his sentence.
Boysaw also contends that the district court committed
Booker error when it sentenced him under the mandatory sentencing
guidelines. In United States v. White, 405 F.3d 208, 215 (4th Cir.
2005), this court determined that imposing a sentence under the
guidelines as mandatory was error that was plain. White, 405 F.3d
- 8 -
at 217. In determining whether an error affected the defendant’s
substantial rights, we reasoned that “the error of sentencing a
defendant under a mandatory guidelines regime” was not an error for
which prejudice would be presumed. Id. at 221. Rather, the
defendant bears the burden of showing that this error “affected the
outcome of the district court proceedings.” Id. at 223 (quoting
Olano, 507 U.S. at 734). In White, we relied on the absence of any
statement by the sentencing court “that it wished to sentence White
below the guideline range but that the guidelines prevented it from
doing so,” to find there was “no nonspeculative basis” for finding
prejudice, and affirmed White’s sentence. Id. at 223-24. Boysaw
had a statutory minimum sentence of 180 months’ imprisonment and a
sentencing guidelines range of 188-235 months’ imprisonment. When
the district judge imposed a 188-month prison sentence, the court
stated that “I would like to go below the Guidelines, but I don’t
know of any legal justification the court has for going below the
Guidelines.” Because the district court clearly indicated that it
would have gone below the guidelines range if it was operating
under an advisory guidelines scheme, we conclude that the court
committed statutory error when it sentenced Boysaw, and Boysaw must
be resentenced.2 See United States v. Rodriguez, 433 F.3d 411,
414-15 (4th Cir. 2006).
2
We, of course, imply no criticism of the able district judge,
who sentenced Boysaw in accordance with the law and procedures in
effect at the time of the sentencing.
- 9 -
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all the factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Accordingly, we affirm Boysaw’s conviction, vacate his
sentence, and remand for resentencing in light of Booker. We also
deny Boysaw’s motion to relieve his appellate attorney, and grant
Boysaw’s motion to file a pro se supplemental brief, the contents
of which we have fully considered. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
- 10 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1020416/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITH RAMSEY BARNHART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-222)
Submitted: July 31, 2006 Decided: September 6, 2006
Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marshall A. Swann, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Keith Ramsey Barnhart pled guilty to possession of a
firearm during and in relation to a drug trafficking offense, 18
U.S.C. § 924(c)(1)(A)(I) (2000) (Count Two), and possession of a
firearm by a person previously convicted of a felony, 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2000) (Count Three). The district court
sentenced Barnhart to 222 months’ imprisonment, consisting of a
102-month sentence on the § 924(c) offense, and a consecutive 120-
month term on the § 922(g) offense.
Barnhart’s attorney filed an Anders1 brief, arguing that
Barnhart is entitled to specific performance by the Government of
its agreement to make a motion for downward departure.2 Barnhart
signed a plea agreement containing the following provisions:
23. When and if the defendant assists the
government as described above:
a. The United States, in its sole
discretion, will determine whether
said assistance has been
substantial.
b. Upon a determination that the
defendant has rendered substantial
1
Anders v. California, 386 U.S. 738 (1967).
2
Barnhart’s attorney also argues that the waiver in the plea
agreement does not preclude his appeal that the Government breached
its agreement to file a substantial assistance motion. Because the
Government has not relied on the waiver provision to assert that
appellate review is precluded, the argument raised by Barnhart’s
counsel need not be addressed. See United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005) (citing United States v. Brock, 211
F.3d 88, 90 n.1 (4th Cir. 2000)).
- 2 -
assistance, the government may make
a motion pursuant to U.S.S.G.
§ 5K1.1 for imposition of a sentence
below the applicable Sentencing
Guidelines. The United States may
also, within its sole discretion,
move the Court pursuant to 18 U.S.C.
§ 3553(e) to impose a sentence below
any applicable statutory mandatory
minimum.
24. The defendant understands that if he . . .
violates any federal, state, or local law, or
any order of any court, including any
condition of pre-trial or pre-sentence, or
post-sentence release, the United States will
be relieved of its obligation under this Plea
Agreement, but the defendant will not be
allowed to withdraw his guilty plea.
First, we note that the plea agreement unambiguously
provides that the decision whether to file a departure motion was
within the Government’s discretion, and Barnhart does not allege
that the refusal to so move was based on an improper motive, such
as racial or religious animus. See United States v. Butler, 272
F.3d 683, 686-88 (4th Cir. 2001). Moreover, after he signed the
plea agreement, Barnhart tested positive for illegal drugs, freeing
the Government from any obligation it had under the plea agreement.
Thus, the issue is without merit.
In his pro se supplemental brief, Barnhart asserts that
his guilty plea was not voluntary because during the plea hearing,
he was led to believe his sentences for the § 922(g) offense and
the § 924(c) offense would run concurrently. As Barnhart suggests,
- 3 -
the magistrate judge3 appeared to accede to counsel’s suggestion
that the sentences would be concurrent, when, by statute, the
sentence on the § 924(c) count was required to run consecutively to
any other sentence imposed. See 18 U.S.C. § 924(c)(l)(D)(ii).4
Because Barnhart did not object or seek to withdraw his
guilty plea on the basis of this error, this court’s review is for
plain error. United States v. Martinez, 277 F.3d 517, 527 (4th
Cir. 2002). Under plain error review, this court may notice an
error that was not preserved by timely objection only if the
defendant can demonstrate that: (1) there was error; (2) it was
plain; and (3) the error affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). Even
when these three conditions are satisfied, this court may exercise
its discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted).
We conclude that the error here did not rise to the level
of reversible “plain error” because it did not impact Barnhart’s
substantial rights. An error is substantial if it was so
3
The plea hearing was conducted by the magistrate judge with
Barnhart’s consent. See United States v. Osborne, 345 F.3d 281,
288 (4th Cir. 2003).
4
We note that in all other respects, the magistrate judge
properly advised Barnhart and informed him of the charges against
him, the rights he was foregoing by pleading guilty, and the
penalties for the offenses.
- 4 -
prejudicial as to affect the outcome of the proceedings. Id.;
Martinez, 277 F.3d at 532. In the guilty plea context, to prove
that an error is substantial, the defendant must show that, but for
the error, he would not have pled guilty. Martinez, 277 F.3d at
532. Barnhart signed a plea agreement that stated with regard to
each count that the sentence would be consecutive to any other
sentence. Both the magistrate judge and the plea agreement also
stated that the maximum penalty for Count Two was life
imprisonment, which is far below the sentence Barnhart ultimately
received. Any confusion that may have resulted from the
misstatement in the Rule 11 hearing did not prejudice Barnhart.
Barnhart next claims his counsel was ineffective for
failing to investigate his mental health before advising him to
plead guilty, and he states that he was taking several prescription
drugs at the time of the offense and guilty plea hearing.
Generally, claims of ineffective assistance of counsel are not
cognizable on direct appeal. To allow for adequate development of
a record, a defendant must bring his claim in a 28 U.S.C. § 2255
(2000) motion, unless the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Because the present record does not conclusively
establish ineffective assistance of counsel, Barnhart’s claim is
not cognizable on direct appeal.
- 5 -
Barnhart also claims that he should not have been
convicted of the § 924(c) offense when he did not plead guilty to
the underlying drug offense. However, “a defendant’s conviction
under § 924(c) ‘does not depend on his being convicted--either
previously or contemporaneously--of the predicate offense, as long
as all of the elements of that offense are proved and found beyond
a reasonable doubt.’” United States v. Hopkins, 310 F.3d 145, 152
(4th Cir. 2002) (quoting United States v. Crump, 120 F.3d 462, 466
(4th Cir. 1997)). Barnhart’s guilty plea to the § 924(c) offense
constituted an admission of all material elements of the crime.
See McCarthy v. United States, 394 U.S. 459, 466-67 (1969); United
States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (“A knowing,
voluntary, and intelligent guilty plea to an offense conclusively
establishes the elements of the offense and the material facts
necessary to support the conviction.”). Thus, Barnhart has failed
to establish plain error in the taking of his plea.
Similarly, Barnhart challenges the factual basis for his
guilty plea to Count Two. Specifically, he argues that he did not
actively use a firearm in furtherance of drug trafficking under
Bailey v. United States, 516 U.S. 137 (1995). Again, because
Barnhart voluntarily entered a guilty plea, his claims are waived.
Willis, 992 F.2d at 490.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
- 6 -
the judgment of the district court. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decision process.
AFFIRMED
- 7 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586656/ | 226 P.3d 130 (2010)
233 Or. App. 510
STATE
v.
KOONTZ.
A133652
Court of Appeals of Oregon.
February 3, 2010.
Affirmed Without Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589745/ | 270 S.W.3d 649 (2008)
Derrick Phillipe JACKSON, Appellant,
v.
The STATE of Texas, State.
No. 2-07-209-CR.
Court of Appeals of Texas, Fort Worth.
August 29, 2008.
Rehearing Overruled October 2, 2008.
*651 Marc F. Gault, Fort Worth, TX, for Appellant.
Tim Curry, Criminal District Attorney, Charles M. Mallin, Chief, Appellate Division, and Anne E. Swenson, David M. Curl, Rainey Webb and Dixie Bersano, Assistant District Attorneys for Tarrant County Fort Worth, TX, for Appellee.
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
OPINION
ANNE GARDNER, Justice.
I. Introduction
Appellant Derrick Phillipe Jackson appeals from his convictions for theft and unauthorized use of a motor vehicle. In five points, Appellant argues that (1) the evidence is legally and factually insufficient to prove that Danny Leverett was the owner of the vehicle and that Appellant appropriated and operated the vehicle without the effective consent of Leverett, and (2) his convictions violate the Double Jeopardy Clause because unauthorized use of a motor vehicle is a lesser-included offense of theft. We modify in part and affirm as modified.
II. Factual and Procedural Background
On October 11, 2006, Appellant went to Neal Suzuki ("the dealership") and entered into a borrowed vehicle agreement for a Ford Focus. The following day, Appellant returned the Focus to the dealership and stated that the Focus was not the car that he wanted to purchase. Appellant then entered into a retail installment sales contract for the purchase of a Ford Taurus. Although Appellant signed his legal name on the application and reference sheet, he signed "with honor and without prejudice" on the odometer disclosure statement, the *652 agreement to provide insurance, the vehicle service agreement, the contract for the purchase of a vehicle, and the waiver form for credit life insurance.
After Appellant left the dealership, John Evans, a finance employee at the dealership,[1] realized that Appellant did not sign his legal name on the documents. Several employees then attempted to contact Appellant on numerous occasions. After Appellant refused to bring the Taurus back to the dealership, the dealership had the Taurus repossessed.
Appellant was indicted for the offenses of theft and unauthorized use of a motor vehicle. On May 8, 2007, a jury found Appellant guilty of both offenses, and the following day, the trial court sentenced Appellant to 210 days in a state jail facility and a $1,000 fine for each offense, to run concurrently.
III. Double Jeopardy
In his fifth point, Appellant complains that his convictions for theft and unauthorized use of a motor vehicle violate the Double Jeopardy Clause. Specifically, Appellant asserts that, in his case, unauthorized use of a motor vehicle is a lesser-included offense of theft. The State concedes that unauthorized use of a motor vehicle qualifies as a lesser-included offense of theft. As such, the proper remedy is to reform the judgment to dismiss Appellant's conviction for the lesser-included offense.[2]Johnson v. State, 903 S.W.2d 496, 499 (Tex.App.-Fort Worth 1995, no pet.) (citing Hoffman v. State, 877 S.W.2d 501, 501-02 (Tex.App.-Fort Worth 1994, no pet.)).
We sustain Appellant's fifth point. Accordingly, we will modify the trial court's judgment to delete Appellant's conviction for unauthorized use of a motor vehicle. TEX. R. APP. P. 43.2(b).
IV. Legal & Factual Sufficiency
In his first and second points, Appellant argues that the evidence was legally and factually insufficient to prove that Leverett was the owner of the Taurus. In his third and fourth points, he contends that the evidence was legally and factually insufficient to prove that he appropriated and operated the Taurus without the effective consent of Leverett.
A. Standards of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order to determine whether 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).
When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly *653 unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App.2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the fact-finder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.App.1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Moreover, an opinion reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001); Johnson, 23 S.W.3d at 7.
B. Applicable Law
Section 31.03 of the Texas Penal Code defines the offense of theft. TEX. PENAL CODE ANN. § 31.03 (Vernon Supp.2008). The statute provides that "[a] person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a). Additionally, the statute provides in relevant part that "[a]ppropriation of property is unlawful if ... it is without the owner's effective consent." Id. § 31.03(b)(1).
C. Applicable Facts
At trial, Pauk Kirlew, an internet manager at the dealership, stated that on October 12, 2006, Appellant returned to the dealership and said that he did not want to purchase the Focus. Kirlew then showed Appellant a Taurus worth $15,000 and Appellant decided to purchase the Taurus. Appellant then filled out the application in Kirlew's presence. After Appellant filled out the paperwork, Kirlew took Appellant to Evans's office to sign the remainder of the legal documents. Kirlew then returned to the showroom floor.
Immediately after Appellant left with the Taurus, Evans called Kirlew into his office and showed him that Appellant had signed his name "with honor and without prejudice." Evans then called Appellant several times, but Appellant did not answer the phone.
Kirlew stated that he went to Appellant's house, called Appellant's cell phone, *654 work phone, and Appellant's wife's cell phone, left numerous phone messages, and left messages with Appellant's neighbors.
He further stated that he called Appellant with a service that showed that Appellant's wife was calling Appellant. Kirlew stated that Appellant answered the phone, "Honey." Kirlew then identified himself and asked Appellant to bring the Taurus back to the dealership and sign the papers correctly. Appellant told Kirlew that he was harassing him and hung up the phone.
At trial, Kirlew acknowledged that the loan had already been approved when he walked Appellant over to Evans's office. However, he stated that the bank rejected the loan because of the signature. Kirlew stated that, although Appellant had consent to take the Taurus, such consent was withdrawn when Appellant did not sign his legal name.
Leverett, the dealership's finance director, stated that on October 12, 2006, he met Appellant on the dealership's showroom floor. He testified that three days later, Evans brought him Appellant's contract and said that Appellant did not sign it correctly. Leverett told Evans to call Appellant and tell him to come back to the dealership and sign his real name. Leverett testified that two days later, Evans stated that he could not get Appellant to come back to the dealership and so Leverett began calling Appellant.
Leverett stated that he talked to Appellant seven or eight times. Leverett said that the first time that he called Appellant, Appellant told him that "with honor and without prejudice" was his legal name. Leverett then told Appellant that he would have to bring the Taurus back because the bank was not going to accept the contract with that signature. Leverett stated that they continued talking for a minute and then Appellant hung up the phone. Leverett testified that he had several conversations with Appellant like that.
Leverett said that after approximately four or five days, he contacted a company to repossess the Taurus. Leverett stated that the Taurus was eventually repossessed from Appellant's house.
Additionally, Leverett testified that he only received a $1,000 down payment from Appellant for the Taurus. Leverett stated that he did not cash the check because it was the dealership's practice not to cash the down payment check until after a bank had paid for the vehicle, and in this case, the bank had rejected the contract.
Leverett stated that although Appellant had consent to leave the dealership with the Taurus, that consent was withdrawn once the signature was discovered. Leverett testified that the contract was not binding because it was not legally signed.
Evans testified that he first met Appellant when Appellant went into his office to sign the paperwork for the Taurus. Evans stated that he was concerned because Appellant's driver's license listed a New York address and his car insurance was issued in Florida. After speaking with his superiors, however, he was told that it was okay to proceed with the transaction.
Evans stated that Appellant signed his name "Derrick Phillipe Jackson" on the application and reference sheet. However, Evans said that Appellant signed his name "with honor and without prejudice" on the odometer disclosure statement, the agreement to provide insurance, the vehicle service agreement, the contract for the purchase of a vehicle, and the waiver form for credit life insurance. Evans testified that he saw Appellant writing on the documents and assumed that he was signing his legal name. Evans further said that it was not a binding contract if Appellant did not sign his legal name. Appellant was in *655 Evans's office for approximately ten to twelve minutes.
Evans testified that ten minutes after Appellant left the dealership, he went back in his office to review the paperwork and noticed that the documents were not signed correctly. Evans then went to Kirlew and told him that he needed to contact Appellant and have him come back to the dealership and re-sign the paperwork. Evans called Appellant's cell phone later that afternoon and left a message that Appellant needed to come back to the dealership. Evans did not have any contact with Appellant after he made the phone call.
Billy Addison Graham, a repossession agent at North Texas Recovery, testified that he received a request to repossess a car in Appellant's possession. Graham stated that he had the paperwork approximately three to four weeks and during that time he attempted on numerous occasions to repossess the Taurus. He said that he knocked on Appellant's front door at various times of the day, left notices on the door, and waited at the house until someone returned. However, he stated that he never talked with anyone.
Finally, on November 29, 2006, Graham recovered the Taurus at Appellant's house. Graham stated that he talked with Frieda, Appellant's wife, and she handed him the keys to the Taurus, which was in the garage. After recovering the Taurus, Graham took it back to the dealership.
Ingrid Retzer, a detective with the White Settlement Police Department, testified that she spoke with Leverett and Kirlew regarding Appellant's theft of the Taurus. She further stated that she called Appellant's cell phone and talked to him. She said that after she identified herself and gave Appellant some information regarding herself, he hung up. Detective Retzer then called Appellant back and left a message stating that if he had the Taurus that he should return it or else an arrest warrant could be issued for him.
Detective Retzer stated that Appellant was arrested on November 20 at his job at D/FW Airport. She testified that she never went to Appellant's house because she was told that no one would answer the door.
Mike Odle, a captain in police operations with the White Settlement Police Department, testified that Appellant left a message on his office phone. Captain Odle stated that when he returned Appellant's phone call, he recorded the conversation.
During the phone conversation, Appellant told Captain Odle that Detective Retzer was threatening him. Captain Odle told Appellant that if he did not have a car that belonged to the dealership then he had nothing to worry about, but that if he did have the car, then he was going to have a warrant issued for his arrest. Appellant told Captain Odle that he did not know what he was talking about.
C. Lack of Effective Consent
In his third and fourth points, Appellant contends that the evidence is legally and factually insufficient to prove that he appropriated and operated the Taurus without Leverett's effective consent.
The penal code defines "effective consent" as "consent by a person legally authorized to act for the owner." TEX. PENAL CODE ANN. § 31.01(3) (Vernon Supp.2008). Consent is not effective if it is induced by deception or coercion. Id. § 31.01(3)(A). The penal code defines deception in relevant part as
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
*656 (B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true[.]
Id. § 31.01(1)(A)-(B).[3]
Appellant signed the initial paperwork with his legal name. But, on the odometer disclosure statement, the agreement to provide insurance, the vehicle service agreement, the contract for the purchase of a vehicle, and the waiver form for credit life insurance, he signed "with honor and without prejudice." At trial, Evans stated that he thought that Appellant was signing his legal name on the documents. Further, when told repeatedly by the dealership's employees that the bank would not honor the contract with that signature, Appellant failed to return to the dealership to correct the paperwork.
Additionally, Appellant was aware on October 12, shortly after he left the dealership, that he no longer had the dealership's consent to drive the Taurus when Evans left Appellant a message on his cell phone that he needed to come back to the dealership and re-sign the paperwork. Both Kirlew and Leverett testified that they had phone conversations with Appellant telling him that he needed to bring the Taurus back and sign the paperwork correctly. Further, Detective Retzer stated that she spoke with Appellant and told him that he needed to return the Taurus to the dealership. Captain Odle also testified that he had a phone conversation with Appellant regarding the Taurus and that he told Appellant that he needed to return the Taurus or an arrest warrant was going to be issued. During this conversation, Appellant told Captain Odle that he did not know what he was talking about.
The evidence is more than sufficient to prove that Leverett's consent was induced by deception. See Rabb v. State, 835 S.W.2d 270, 272 (Tex.App.-Tyler 1992, no pet.) (holding consent was induced by deception when the defendant misrepresented his address and employment on application, gave worthless checks for down-payment, and obtained proof of insurance with bad check).
After reviewing the evidence in the light most favorable to the verdict, we conclude that any rational juror could have found that Appellant did not have Leverett's effective consent to take the Taurus. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Hampton, 165 S.W.3d at 693. Additionally, the evidence supporting the conviction is not so weak, nor the contrary evidence so overwhelming, that the jury's verdict is clearly wrong or manifestly unjust. Watson, 204 S.W.3d at 414-15, 417. Thus, we overrule Appellant's third and fourth points.
D. Owner of the Taurus
In Appellant's first and second points, he argues that the evidence is legally and factually insufficient to prove that Leverett was the owner of the Taurus. We disagree.
The penal code defines "owner" as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." TEX. PENAL CODE ANN. § 1.07(a)(35)(A) (Vernon Supp. 2008). "Possession" is defined as "actual care, custody, control, or management." TEX. PENAL CODE ANN. § 1.07(a)(39).
*657 An allegation of ownership may be alleged in either the actual owner or a special owner. Lewis v. State, 193 S.W.3d 137, 140 (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also Freeman v. State, 707 S.W.2d 597, 603 (Tex.Crim.App. 1986). A "special owner" is an individual, such as an employee, who is in care, custody, or control of the property belonging to another person or a corporation. Liggens v. State, 50 S.W.3d 657, 660 (Tex.App.-Fort Worth 2001, no pet.); see also Harrell v. State, 852 S.W.2d 521, 523 (Tex. Crim.App.1993); Roberts v. State, 513 S.W.2d 870, 871-72 (Tex.Crim.App.1974).
Proof of ownership can be shown by an automobile salesperson who has care, custody, and control of a new car. Joshlin v. State, 468 S.W.2d 826, 827 (Tex. Crim.App.1971); see also TEX.CODE CRIM. PROC. ANN. art. 21.08 (Vernon 2007) (stating that "[w]here one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either."). Accordingly, Leverett, as the dealership's finance director, was the proper owner of the Taurus.
Appellant contends that he had a greater right of possession to the Taurus because, although he signed the contract "with honor and without prejudice," the dealership could still enforce the contract. However, because Appellant did not have Leverett's effective consent to take the Taurus, he did not have a greater right of possession to the Taurus.
After reviewing the evidence in the light most favorable to the verdict, we conclude that any rational juror could have found Leverett was the owner of the Taurus. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Hampton, 165 S.W.3d at 693. Additionally, the evidence supporting the conviction is not so weak, nor the contrary evidence so overwhelming, that the jury's verdict is clearly wrong or manifestly unjust. Watson, 204 S.W.3d at 414-15, 417. Thus, we overrule Appellant's first and second points.
V. Conclusion
Having sustained Appellant's fifth point, we modify the trial court's judgment to delete Appellant's conviction for unauthorized use of a motor vehicle. Having overruled Appellant's remaining points, we affirm the trial court's judgment as modified.
NOTES
[1] At the time of trial, Evans was no longer working at the dealership.
[2] Although not addressed by Appellant, we further observe that the trial court did not orally pronounce the sentence for the offense of unauthorized use of a motor vehicle. See McClinton v. State, 121 S.W.3d 768, 770 (Tex. Crim.App.2003) (noting that the oral sentence announced in open court is the sentence imposed).
[3] The jury charge did not contain the definition of deception. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589752/ | 783 N.W.2d 873 (2010)
STATE
v.
JOHNSON.
No. 2009AP2820.
Court of Appeals of Wisconsin.
February 18, 2010.
Petition for review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589771/ | 270 S.W.3d 249 (2008)
SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant,
v.
Susan COMBS, Successor-in-Interest to Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General for the State of Texas, Appellees.
No. 07-07-0172-CV.
Court of Appeals of Texas, Amarillo.
October 28, 2008.
Rehearing Overruled December 30, 2008.
*253 Ray Langenberg, Mark W. Eidman, Scott, Douglass & McConnico, L.L.P., Austin, TX, for Appellant.
Greg Abbott, Attorney General, Christine Monzingo, Assistant Attorney General, Austin, TX, for Appellees.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
PATRICK A. PIRTLE, Justice.
Appellant, Southwestern Bell Telephone Company (Bell), appeals from entry of summary judgment in favor of Appellees, Susan Combs, successor in interest to Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas, on Bell's claim seeking a refund of franchise taxes. The parties filed competing motions for summary judgment below. The trial court granted the State's motion and denied Bell's motion. Bell appeals the trial court's ruling and seeks summary judgment in its favor. In support, Bell asserts the trial court erred in finding (1) Bell's end user common line charges, special access charges, and operator assistance charges are Texas receipts for state franchise tax apportionment purposes; (2) the Comptroller's application of the franchise tax apportionment statute and rules to Bell did not violate equal protection guarantees; and (3) certain testimony by Bell's experts was properly excluded. We affirm.
Background
In December 2002, Bell filed suit to recover $43,136,577.39 in franchise taxes and interest paid under protest to the Comptroller.[1] For calendar years 1996-2001,[2]*254 the Comptroller apportioned Bell's charges for customer access to its local telephone network to complete long distance calls and pay-per-use services such as operator assistance as Texas receipts. Bell asserts these charges are exempt from apportionment as Texas receipts because they constitute "receipts from interstate calls" or "revenues from calls in interstate commerce."
This case necessarily involves technical and legal issues unique to the telephone industry. Events that occurred in the telephone industry nationwide and in Texas from the early 1980s through 2001 comprise the backdrop for understanding the issues underscoring this appeal. As a result, it is necessary that we describe in greater detail Bell's operation during the period at issue as well as the applicable regulatory history underlying the franchise tax exemptions sought by Bell.
I. The Antitrust Consent Decree
Before 1982, American Telephone and Telegraph Company (AT & T) dominated the national telecommunications industry. AT & T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 414, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999). AT & T and its corporate affiliates, known as the "Bell System," virtually controlled all long-distance telephone service, most local telephone service, and a substantial amount of all telephone equipment manufacturing. See United States v. American Tel. & Tel. Co., 552 F.Supp. 131, 222-23 (D.D.C.1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). However, in 1982, AT & T entered into an antitrust consent decree, known as the Modification of Final Judgment (MFJ) that ended its industry dominance. 552 F.Supp. at 160-170, 222-234.
Under the MFJ, AT & T was required to divest itself of local exchange subsidiaries and was grouped into regional operating companies which became known as the "Bell Operating Companies (BOCs)." See 47 U.S.C. § 153(4) (2001); SBC Communications, Inc. v. F.C.C., 154 F.3d 226, 230 (5th Cir.1998). Bell was a BOC and provided telecommunications services for customers physically located in Kansas, Arkansas, Oklahoma, Missouri, and Texas. The United States was then divided into 161 Local Access Transport Areas (LATAs)[3] within which BOCs were permitted to operate and provide local telephone service. 154 F.3d at 231. Within each LATA were local exchange carriers (LECs)[4] that *255 connected their customers' telephones to their networks and facilities. Bell operates as an LEC in LATAs in Texas and other states.
Because the MFJ permitted BOCs and/or LECs to retain their state-regulated, local service monopolies, they became subject to various restrictions on their lines of business. The restrictions were intended to ensure that the BOCs would not use their monopoly control over LECs to impede competition in other markets. United States v. Western Elec. Co., 12 F.3d 225, 229 (D.C.Cir.1993). For instance, an LEC might find it particularly easy to attract local customers to contract for its long distance service and use its control of local service to place its long distance competitors at a disadvantage. Iowa Utilities Board, 525 U.S. at 416, 119 S.Ct. 721. Thus, one such restriction prohibited LECs from offering any long distance service between LATAs, or interLATA service.[5]See Id.; SBC Communications, 154 F.3d at 230; Western Elec. Co., 12 F.3d at 228. Thus, during the relevant time period, Bell was prohibited from providing any long distance telephone services.[6]
II. Long Distance Telephone Service
Because LECs such as Bell were prohibited from providing long distance telephone service, long distance calls or interLATA calls were transmitted by interexchange carriers (IXCs).[7]AT & T Communications of Texas, L.P. v. Southwestern Bell Telephone Co., 186 S.W.3d 517, 521-22 (Tex.2006). Under the MFJ, each LEC was allowed to transmit telecommunications information only between points within a single LATA, providing what is, basically, the traditional local telephone service. The MFJ required LECs to provide their customers and IXCs equal exchange access[8] to their network facilities for the purpose of permitting IXCs to carry on their long distance telephone business.
Thus, when a customer dialed a number in another LATA, the customer's LEC would first transmit the signal to an IXC's Point of Presence (POP). In a typical interLATA long distance call, the originating caller's LEC transports the signal from the caller's telephone over the local loop[9] to the LEC's central office where *256 the call is switched and transported by a trunk line to the IXC's POP. This occurs nearly instantaneously. Typically, the LEC has switched the caller to their IXC before the caller has completed dialing the long distance number. Once the signal reaches the IXC's long distance switch, the IXC then switches the signal to its trunk facilities for transmission out-of-state to the local switch of a second LEC serving the receiving party. The second LEC switches the signal to its local loop and ultimately the call is received. The second LEC then reverses the process and a circuit is established over which the two parties can communicate.
III. Access and Operator Charges
An IXC's cost of replicating Bell's local network and facilities to provide long distance service from the LEC's premises was prohibitive. Thus, IXCs needed access to Bell's network in order to sell long distance services to their customers, and the IXC's customers needed access to the LEC's network to complete long distance services purchased from IXCs. To recompense Bell for costs associated with maintaining its facilities and equipment utilized by IXCs and the IXCs' customers, the Federal Communications Commission[10] adopted uniform access charge rules. The FCC's rules required LECs to record their revenues in accordance with specified accounting rules and deposit accounts, determine what fraction of the LEC's regulated expenses and investments in its facilities or network should be allocated to providing interstate access, and set charges or tariffs[11] Bell could charge its customers and IXCs. See Access Charge Reform, CC Docket No. 96-262, First Report and Order, 12 FCC Red 15982, 15998-99 (1997) (Access Charge Reform Order), aff'd, Southwestern Bell Telephone Co. v. F.C.C., 153 F.3d 523 (8th Cir.1998).
*257 At issue, here, are Bell's revenues deposited in two FCC denominated deposit accounts for Network Access Revenues[12] and a customer account for various pay-per-use services as follows:
A. End User Common Line Charges
The End User Common Line Charge (EUCL) is a flat rate charge designed to recover a portion of Bell's cost of providing the local loop to transport customers' long distance calls to IXC POPs. Bell's EUCL revenues are recorded in its 5081 Account.[13]See 47 C.F.R. § 32.5081 (2001). The EUCL charge is paid by local subscribers whether any long distance call is actually made or received.
B. Special Access Charges
Bell also charges a fixed monthly fee for access to dedicated telephone lines or circuits installed by Bell within the local exchange network that are used to transport long distance calls directly from customers to their IXC POP. Dedicated lines transport a customer's long distance call directly through Bell's central office to the IXC's POP without being switched. Bell's revenues from customer access to dedicated lines is accounted for in Account 5083.[14]See 47 C.F.R. § 32.5082 (2001).
C. Operator Assistance Charges
Although Bell is prohibited from offering long distance telephone service, Bell is permitted to offer directory and operator assistance to customers making long distance calls. For instance, these charges occur when a customer located in Texas using a Texas phone facility while placing an interstate intraLATA call dials a Bell operator for directory assistance or assistance to complete the long distance call. The charges are pay-per-use charges. These revenues are deposited in Account 5160.1.[15] 47 C.F.R. § 32.5160 (1995).
IV. Texas's Franchise Tax and Current Controversy
Texas's franchise tax is imposed upon all domestic and foreign corporations doing business in Texas. § 171.001. The granting of the privilege to transact business in Texas confers economic benefits, including the opportunity to realize gross income and the right to invoke the protection of local law. Bullock v. National Bancshares Corp., 584 S.W.2d 268, 270 (Tex.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980). The Texas franchise tax is a tax on the value of this privilege. Id.
During calendar years 1995-2001, Bell was an LEC in a number of states including Texas. Because Bell conducted business inside and outside of Texas, its franchise tax was calculated by an apportionment formula. Its company-wide taxable capital (net worth) and taxable earned surplus (net income) were apportioned between Bell's business done in Texas and business done elsewhere to obtain a correct assessment of Texas franchise taxes. This calculation and the resulting effect of having a larger proportion *258 of gross receipts from business done in Texas may be stated as follows:
Simply described, "net taxable earned surplus" is determined by (1) adjusting the amount of a corporate taxpayer's federal taxable income to yield "taxable earned surplus," (2) "apportioning" or attributing the taxable earned surplus to Texas; and (3) subtracting various allowable deductions from the apportioned taxable earned surplus. Tex. Tax Code Ann. § 171.110(a) (West Supp.2004).... Under tax code sections 171.106 and 171.110(2), taxable earned surplus is to be "apportioned" to Texas by multiplying it by a fraction, the numerator of which is the corporation's "gross receipts from business done in this state," as determined under section 171.1032, tax code, and the denominator of which is the corporation's "gross receipts from its entire business," as determined under section 171.1051. Id. at §§ 171.106(b), 171.110(a)(2). [footnote omitted]. Thus, the larger the corporation's "gross receipts from business done in this state," the larger the apportionment factor, and the larger percentage of its taxable earned surplus is subject to the franchise tax.
Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166, 169 (Tex.App.-Austin 2004, pet. denied).
As in Anderson-Clayton, the center of the present dispute is the apportionment of Bell's receipts as either Texas or non-Texas receipts. If Bell shows that more of its receipts in any tax year were not "gross receipts for business done in Texas" or were subject to an exemption from apportionment as Texas receipts, then the lesser the apportionment factor and consequently the lesser percentage of its taxable earned surplus is subject to the Texas franchise tax, i.e., Bell owes less state franchise taxes. Conversely, if the opposite is true, then the larger the apportionment factor and the greater its taxable earned surplus subject to the Texas franchise tax. Doing more business in Texas generally results in higher franchise taxes.
The earned surplus apportionment statute in existence between 1995-2001 provided that Texas receipts are from "business done in Texas" as follows:
171.1032. Determination of Gross Receipts From Business Done in this State for Taxable Earned Surplus
(a) Except for the gross receipts of a corporation that are subject to the provisions of Section 171.1061, in apportioning taxable earned surplus, the gross receipts of a corporation from its business done in this state is the sum of the corporation's receipts from:
(1) each sale of tangible personal property if the property is delivered or shipped to a buyer in this state regardless of the FOB point or another condition of the sale, and each sale of tangible personal property shipped from this state to a purchaser in another state in which the seller is not subject to any tax on, or measured by, net income, without regard to whether the tax is imposed;
(2) each service performed in this state;
(3) each rental of property situated in this state;
(4) each royalty for the use of a patent or copyright in this state; and
(5) other business done in this state.
Section 171.1032.[16]
In addition to this "gross receipts" statute, the Comptroller had adopted rules *259 that exempted certain telephone company receipts from apportionment as Texas receipts for franchise tax purposes. The Comptroller established the following exemption when apportioning the taxable capital (net worth) component of the franchise tax for telephone companies as follows:
Telephone company receipts. All receipts for calls of a telephone company in Texas are Texas receipts, except for receipts from interstate calls.
34 Tex. Admin. Code § 3.549(e)(43) (2008) (emphasis added).
The Comptroller also established the following exemption when apportioning the earned surplus (net income) component of the franchise tax for telephone companies as follows:
Telephone companies. All revenues for telephone calls in Texas are Texas receipts except for revenues from calls in interstate commerce.
34 Tex. Admin. Code § 3.557(e)(39), as adopted, 17 Tex. Reg. 7667 (1991) (effective date: November 13, 1992). (emphasis added).[17] These Rules required that "[s]ervice receipts [be] apportioned to the location where the service is performed." 34 Tex. Admin. Code §§ 3.549(e)(38) (2008); 34 Tex. Admin. Code § 3.557 (1992).
Discussion
Bell contends that its access and operator assistance charges are not subject to apportionment as "gross receipts from business done in [Texas]" because these activities do not constitute "service[s] performed in this state. See § 171.1032. Bell also contends these charges are exempt from apportionment as Texas receipts because they constitute "receipts from interstate calls" " or "revenues from calls in Code" § 3.549(e)(43); § 3.557(e)(39). Bell next asserts that apportioning its access and operator assistance charges as Texas receipts violates equal protection guarantees because Bell does not receive preferential tax treatment received by IXCs and transportation companies under the Comptroller's Rules. Finally, Bell contends that the trial court improperly excluded some of its summary judgment evidence.
I. Standard of Review
When, as here, parties file cross-motions for summary judgment, each party in support of its motion necessarily takes the position that there is no genuine issue of fact in the case and that it is entitled to judgment as a matter of law. City of Pflugerville v. Capital Metropolitan Transp. Authority, 123 S.W.3d 106, 109 (Tex.App.-Austin 2003, pet. denied). When both parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, the reviewing court considers the summary judgment evidence presented by both sides, and determines all questions presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). When the trial court's order granting summary *260 judgment does not specify the basis for the ruling, we must affirm summary judgment if any of the summary judgment grounds are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).
Here, the parties rely on statutory provisions and administrative rules to support their entitlement to summary judgment. In general, matters of statutory construction are questions of law rather than issues of fact. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000); Berry v. State Farm Mut. Auto. Ins. Co., 9 S.W.3d 884, 890 (Tex. App.-Austin 2000, no pet.). Accordingly, we review the trial court's decision to grant summary judgment de novo. Valence Operating Company, 164 S.W.3d at 661.
II. Gross Receipts From Business Done In Texas
Whether Bell's access and operator assistance charges are subject to apportionment as "gross receipts from business done in Texas" depends, in part, on whether they constitute "service[s] performed in this state." See §§ 171.103, 171.1032. Accordingly, we must determine whether the term "service" includes providing a customer access to a communications network for the purpose of completing long distance calls and/or operator assistance.
A. Statutory Interpretation
We interpret statutory provisions and administrative rules under traditional principles of statutory construction. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999); Gulf Coast Coalition of Cities v. Public Utility Com'n, 161 S.W.3d 706, 712 (Tex.App.-Austin 2005, no pet.). Our primary objective is to ascertain and give effect to the Legislature's intent. Tex. Gov't Code Ann. §§ 312.005 (Vernon 2005). See Texas Dept. of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 176 (Tex. 2004).
To discern the Legislature's intent, we begin with the plain and common meaning of the statute's words. Tex. Gov't Code Ann. § 312.003 (Vernon 2005). See Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). If a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage. Texas Dep't of Transportation v. Needham, 82 S.W.3d 314, 318 (Tex.2002). If a statute is unambiguous, we must adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results. Mega Child Care, 145 S.W.3d at 177. We must also consider the statute as a whole rather than its isolated provisions. City of Sunset Valley, 146 S.W.3d at 643; City of Canyon v. Fehr, 121 S.W.3d 899, 905 (Tex.App.-Amarillo 2003, no pet.).
If there is vagueness, ambiguity, or room for policy determinations in a statute or regulation, we normally defer to the agency's interpretation unless it is plainly erroneous or inconsistent with the language of the statute, regulation, or rule. Gulf Coast Coalition of Cities v. Public Utility Com'n, 161 S.W.3d 706, 712 (Tex. App.-Austin 2005, no pet.). If a statute can be reasonably read as the agency has ruled, and that reading is in harmony with the rest of the statute, then we are bound to accept the agency's interpretation even if other reasonable interpretations exist. Berry, 9 S.W.3d at 893. Moreover, revenue measures are liberally construed to effectuate their purpose which is to secure the payment of the taxes levied therein. Isbell v. Gulf Union Oil Co., 147 Tex. 6, 209 S.W.2d 762, 764 (1948); Steakley v. West Tex. Gulf Pipe Line Co., 336 S.W.2d *261 925, 928 (Tex.Civ.App.-Austin 1960, no writ).
B. Service
The Franchise Tax statutes neither explain nor define the ambiguous phrase, "business done in Texas"; see Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172, 180 (Tex.1967), or the term "service." However, regarding telephone companies, the Comptroller has interpreted the phrase "business within this state" to include "fixed periodic access and equipment charges for equipment located in Texas whether used for intrastate or interstate communications"; Comptroller Rule 3.56 (1983) (emphasis added),[18] and has consistently interpreted access charges for the use of local telephone networks and facilities to be charges for rendering a "service." See Comptroller Letter Ruling (1989) (access charges are for intrastate service for access to the local network);[19] Comptroller Letter Ruling (1992) (payments made in return "for access to local networks or for the use of local facilities are considered Texas receipts");[20] Comptroller Letter Ruling (1998) (providing facilities for access to complete long distance calls is a service).[21] In fact, as early as 1952, the Attorney General referred to "receipts from loop services and from charges received ... for the use of [telephone] lines, equipment or facilities in Texas" as "services." Op. Tex. Att'y Gen. No. V-1383, 7 (1952).[22] Similarly, the FCC classifies exchange access as a "service."[23]
Interpretations of the term "service" by the Comptroller comport with its common meaning; Merriam-Webster's Collegiate Dictionary 1137 (11th Ed.2003) ("disposal for use"),[24] and the definition adopted by the Texas Legislature regarding access activities conducted by public utilities such as Bell.[25]See Tex. Util.Code Ann. § 51.002(5) (Vernon 2007)("`Local exchange telephone service' means ... connections *262 between a customer premises and a long distance provider serving the exchange.")[26] Moreover, the record reflects that Bell's corporate representative and director of access regulatory[27] testified on deposition that "[a]ccess is the provision of service generally to carriers for transmission of voice and data within a LATA." (emphasis added). He also agreed in deposition that all gross receipts at issue in the underlying lawsuit were revenues Bell received as a result of having regulated rates and providing tariff services.
Interpreting the term "service" to include operator assistance also comports with its common meaning; Merriam-Webster's Collegiate Dictionary at 1137 (to help, use, benefit, contribution to the welfare of others), as well as the definition supplied by the Texas Legislature in the area of public utility regulation related to telephone companies. See Tex. Util.Code Ann. § 55.081 (Vernon 2007).[28]
Accordingly, we find that the term "service" includes providing access to a communications network for the purpose of completing long distance calls and/or operator assistance. This definition comports with the Comptroller and Attorney General's interpretations, the term's common meaning and its technical meaning, if any exists, in the telephone industry.
The Comptroller's Franchise Tax Rules provide that "[s]ervice receipts are apportioned to the location where the service is performed." 34 Tex. Admin. Code § 3.557(e)(33) (2008). "Where `the act is done' determines the geographical character of receipts derived from the performance of a service." Tex. Comp. Pub. Acct's Hearing No. 10,028, 1980 WL 5466 at *5 (Nov. 27, 1980)(quoting Humble Oil, 414 S.W.2d at 180). And "receipts from the sale of services must be apportioned to the location of the services." Westcott Communications, Inc. v. Strayhorn, 104 S.W.3d 141, 146 (Tex.App.-Austin 2003, pet. denied).
The record establishes that the access and operator assistance services underlying this appeal were requested by Bell's customers located in Texas who were then serviced by Bell's network, facilities, and/or personnel also located in Texas. As such, these "transactions begin and end in Texas." See Bullock v. Enserch, 614 S.W.2d 215, 217 (Tex.Civ.App.-Austin 1981, writ ref'd n.r.e.), cert. denied, 455 U.S. 946, 102 S.Ct. 1445, 71 L.Ed.2d 659 (1982). Accordingly, we find as reasonable the Comptroller's interpretation that these revenues are from "services performed in this State," and represent "gross receipts from business done in Texas." Nevertheless, *263 this determination does not end our analysis. We must next determine whether the Comptroller's Rules exempt Bell's access and operator assistance charges from apportionment as "gross receipts from business done in Texas." We find that they do not.
III. Franchise Tax Apportionment Exemption
Although Bell's access and operator charges are subject to apportionment as "gross receipts from business done in Texas," they may be exempt from such apportionment if they are receipts from "interstate calls" or "revenues from calls in interstate commerce." See 34 Tex. Admin. Code § 3.549(e)(43) (2008); 34 Tex. Admin. Code § 3.557(e)(39) (1992). Accordingly, we must next determine whether Bell's access service and operator charges represent "receipts from interstate calls" or "revenues from calls in interstate commerce."
A. Administrative Rule Interpretation
It is a long-standing rule that exemptions from taxation are subject to strict construction because they place a greater burden on other tax-paying businesses and individuals rather than placing the burden on all taxpayers equally. Cordillera Ranch, Ltd. v. Kendall County Appraisal Dist., 136 S.W.3d 249, 253-54 (Tex. App.-San Antonio 2004, no pet.) (citing North Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex.1991)). As such, tax exemptions are "the antithesis of equality and uniformity," Hilltop Village, Inc. v. Kerrville Independent School Dist., 426 S.W.2d 943, 948 (Tex. 1968), and cannot be raised by implication. Bullock v. National Bancshares Corp., 584 S.W.2d 268, 272 (Tex. 1979), cert. denied 444 U.S. 1016, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980). Exemptions must affirmatively appear and all doubts are resolved in favor of the taxing authority and against the claimant. Id.
The burden of proof is on the person claiming the exemption to clearly show that it comes within the statutory exemption; id; USA Waste Services of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 495 (Tex.App.-Austin 2004, no pet.), and, although we are not bound by the Comptroller's interpretation, the Comptroller's administrative interpretation of ambiguous language in a revenue statute is entitled to our respect and due weight. Rylander v. Fisher Controls Int'l, 45 S.W.3d 291, 299 (Tex.App.-Austin 2001, no pet.); Quorum Sales, Inc. v. Sharp, 910 S.W.2d 59, 64 (Tex.App.-Austin 1995, writ denied). Furthermore, an agency's interpretation of its rule essentially becomes a part of the rule itself because the agency's interpretation represents the view of the regulatory body that drafted and administers the rule. BFI Waste Systems of North America, Inc. v. Martinez Environmental Group, 93 S.W.3d 570, 575-76 (Tex. App.-Austin 2002, pet. denied); H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., 36 S.W.3d 597, 604 (Tex.App.-Austin 2000, pet. denied).
B. Access Service Charges[29]
Bell asserts that its revenue from access charges is exempted because the charges are for "interstate call[s]" or "call[s] in interstate commerce." Bell contends that its interpretation is consistent *264 with analogous Texas pipeline cases interpreting the phrase "business done in Texas" and federal common law interpreting the Commerce Clause, i.e., what constitutes interstate commerce. Bell also asserts that providing access for an interstate, long distance call is inseparable from the call itself because the call is technically an uninterrupted transmission across state lines and Bell's local loop is necessary to the origination and termination of such calls. Accordingly, the validity of Bell's assertion hinges upon whether its access service revenue is revenue from interstate calls or commerce.[30]
1. 1933-1952 Early Attorney General Opinions
Our analysis begins with two Attorney General Opinions both of which address the issue before us prior to the adoption of the Comptroller's Rule exempting interstate calls in 1975. In January 1940, the Attorney General was asked for a determination whether the gross receipts of domestic telephone companies from interstate calls were subject to the Texas gross receipts tax. Op. Tex. Att'y Gen. No. O-1878, 1 (1940). The domestic companies operated wholly within Texas and provided long distance service to their customers. They transmitted interstate long distance calls over their lines to the Texas border where their calls were picked up by another company who transmitted the calls to an out-of-state recipient. The domestic company was paid for the use of their lines within Texas, and the out-of-state company was paid a commission for completing the call outside Texas. Id. at 2. In determining that the charges were "interstate" in nature and not subject to state tax, the Attorney General stated:
Under the facts here, the "gross receipts" sought to be taxed, were derived not from tolls on calls originating and ending within the confines of the State of Texas, but rather from tolls on calls originating in Texas and terminating in other states, or vice versa, in other words, in interstate commerce. The fact that the telephone company in question receives only such part of the tolls as represents payment for the facilities and services furnished by it in transmitting the call from or to the borders of the State does not prevent such receipts from being stamped with the interstate commerce feature.
Id. at 4.
In January 1952, the Attorney General was asked for a determination whether the gross receipts of a domestic telephone company from calls that were routed from points in Texas through New Mexico and back to Texas were subject to the Texas gross receipts tax. Op. Tex. Att'y Gen. No. V-1383, 1 (1952). The Attorney General determined that the calls routed through New Mexico had to be "treated as transactions constituting interstate commerce"; id. at 5, and opined that the gross receipts tax was inapplicable because the tax was not apportioned between the interstate and intrastate segments of the call. Id. at 6-7. The 1952 Opinion also indicated that, if there was apportionment, access services could be subject to a state tax as follows:
Although the gross receipts derived from the interstate business are not subject *265 to this tax, that portion of the receipts representing wholly intrastate business which can be separated or segregated from the gross receipts is subject to the tax. 51 Am.Jur. 777, 779, 804, Taxation, Secs. 872, 874, 907, 908. Therefore, the receipts from "loop services" and from charges received under contracts or agreements for the use of lines, equipment or facilities in Texas are subject to the tax even though such services may be incidental to an interstate communication. [citation omitted].
See id. (Emphasis added).[31]
The defining difference between the two Opinions is that, in the 1940 Opinion, the Attorney General is describing a service contract that requires transmission between two states for its completion, and in the 1952 Opinion, the Attorney General is describing a service contract that is fully performed within Texas. In the 1940 Opinion, the domestic telephone companies offered interstate long distance service to their customers and transmitted calls across state lines to complete the long distance service. Op. Tex. Att'y Gen. No. O-1878, 1 (1940). Because completion of the service owed by the domestic telephone company was interstate in nature, its revenues were considered derived from interstate commerce. Id. at 4.
In the 1952 Opinion, the Attorney General recognized that, although the domestic telephone company's calls were interstate transactions, a portion of its receipts would be taxable as Texas receipts if the state's tax apportioned the company's "receipts from `loop services' and from charges received under contracts or agreements for the use of lines, equipment or facilities in Texas." Op. Tex. Att'y Gen. No. V-1383, 6-7 (1952). In the 1952 Opinion, the Attorney General did not describe a contract for a service to be delivered in another state but a contract for the use of facilities and/or equipment located in Texas.
2. 1972-2000 Comptroller's Rules and Policies
In 1972, the Comptroller adopted an adjudicatory rule that "revenues from interstate toll charges are not `business done in Texas.'" See Comptroller Hearing No. 5587 (1972).[32] In Hearing No. 5587, four telephone companies sought a refund of franchise tax payments determined by apportioning charges from their long distance telephone service as Texas receipts. All the telephone companies provided both local and long distance service to their customers. After considering the 1940 and 1952 Opinions and relevant case law, the Comptroller held that "[r]evenues from interstate toll charges are not `business done in Texas.'" In 1975, the Comptroller adopted a Franchise Tax Rule identical in its import to the Rule applicable here, i.e., "[r]eceipts of a telephone company in Texas from interstate calls are not Texas receipts." Comptroller Rule 3.51 (1976).[33]Accord Comptroller Rule 3.403(c)(2) *266 (1979).[34]
In 1983, the Comptroller adopted a Franchise Tax Rule similar to the 1952 Opinion as follows: "[b]usiness within this state also includes fixed periodic access and equipment charges for equipment located in Texas whether used for intrastate or interstate communications." See Comptroller Rule 3.56 (1983).[35] And, in conformity therewith, the Comptroller responded to a request by Bell for clarification in 1989 with a Letter Ruling stating: "access charges [are] for intrastate service, for access to the local network by the long distance carrier. These are not charges for interstate service provided by Southwestern Bell." Comptroller Letter Ruling (1989).[36]
In three successive Letter Rulings, the Comptroller adhered to its policy that access service charges for use of a telephone company's local network and facilities were Texas receipts. Comptroller Letter Ruling (1998); Comptroller Letter Ruling (1994); Comptroller Letter Ruling (1992).[37] Thus, since the adoption of Franchise Tax Rule 3.56 in 1983, the Comptroller consistently treated access charges as intrastate servicesTexas receipts.
However, in 2000, the Comptroller differentiated between the apportionment of access charges paid by IXCs and EUCLs for franchise tax purposes finding that access charges paid to LECs by IXCs were non-Texas receipts while access charges paid to LECs by end users, EUCLs, remained Texas receipts. See Tex. Comp. Pub. Acct's. Hearing No. 35,677 (2000).[38] In an earlier unrelated proceeding, Hearing No. 35,677, the Comptroller determined that, under a literal translation of Rule 3.557(e)(39), access charges paid by IXCs to LECs were "revenue from an interstate telephone call" because IXCs incurred an access charge when an actual interstate telephone call was made, i.e., the access charge was based on the interstate minutes of use of the LEC's network by the IXC. *19-20. On the other hand, the Comptroller determined EUCLs paid by end users to LECs were not "revenue from an interstate telephone call" because LECs billed EUCLs even if no interstate telephone call was made by or to the customer, i.e., the EUCL was a fixed charge to all telephone customers to compensate LECs for use of the network to be able to place and receive interstate telephone calls. *19-20.[39]
*267 Thus, in 1972, the Comptroller initially recognized the policy that revenues from interstate long distance calls were not "business done in Texas," and, in 1975, adopted a conforming franchise tax Rule, i.e., receipts "from interstate calls are not Texas receipts." Since 1983, the Comptroller consistently recognized through Rule, Letter Rulings, and adjudication that EUCLs were not "revenue from an interstate telephone call" but apportionable under the franchise tax statutes as Texas receipts.[40]
3. Interstate Commerce Analogous Texas and Federal Cases
Analogous case law also supports the proposition originally stated in the 1952 Opinion that underlies the Comptroller's subsequent Rules, Letter Rulings, and Adjudicatory Ruling related to EUCLs. That is, where a service contract is for the use of telephone facilities located in Texas, performance of the contract is intrastate.
For instance, in Clark v. Atlantic Pipe Line Co., 134 S.W.2d 322 (Tex.Civ.App.-Austin 1939, writ ref'd), oil shippers contracted directly with Atlantic Pipe Line ("Atlantic") to ship oil from locations in Texas and other states to Texas Gulf ports where the oil was to be loaded onto ocean-going vessels and shipped to other states or foreign countries. Id. at 324-25. Although recognizing that the phrase "business done in Texas" was "broad enough to include that segregated portion of interstate business which is wholly performed within the State," the court held that Texas could not tax Atlantic's proceeds from shipping oil in, or through, Texas because the oil's shipment would not be completed until it reached another state or foreign country. Id. at 328. The court held as follows:
We hold that the language, "business done in Texas," as employed in this statute was intended to mean business begun *268 and completed in Texas, and not business begun in Texas and completed in some other state or foreign nation, or vice versa. In other words, that it means intrastate business.
Id.
Thus, Atlantic engaged in "interstate business" by contracting directly with oil shippers to ship their oil through its pipeline located in Texas to an ocean vessel destined for delivery in another state or foreign country. Atlantic's "business" was not providing the oil shippers with access to, or leasing, its pipeline in order for the oil shippers to ship the oil themselves. In the first instance, Atlantic is engaged in interstate commerce because the "business" of shipping the oil is not complete until the oil is delivered in another state or country. In the second instance, Atlantic would be engaged in intrastate commerce because the "business" of providing access to, or leasing, facilities in Texas begins and ends with the facilities in Texas.
Bullock v. Enserch Exploration, Inc., 614 S.W.2d 215 (Tex.Civ.App.-Austin 1981, writ ref'd n.r.e.), cert. denied, 455 U.S. 946, 102 S.Ct. 1445, 71 L.Ed.2d 659 (1982), is also instructive. In Bullock, the "critical issue [was] whether [Enserch's] sale of natural gas with deliveries [by pipeline] in Texas to interstate companies for resale outside of Texas constituted "business done in Texas." " Id. at 216. The court held that the sale of gas by a Texas gas company to an interstate pipeline company for resale outside of Texas represented "gross receipts from its business in Texas." 614 S.W.2d at 217. Enserch had neither a contract for the sale of gas to an out-of-state purchaser nor a contract to ship gas produced in Texas out of state. There simply was no interstate component to Enserch's business Texas gas was shipped and sold in Texas.
United States Supreme Court opinions determining what business constitutes "interstate commerce" are also instructive. See Atlantic Pipe Line Co., 134 S.W.2d at 327. For instance, in People of State of New York ex rel. Pennsylvania R.R. Co. v. Knight, 192 U.S. 21, 24 S.Ct. 202, 48 L.Ed. 325 (1904), a company operating a ferry located in New York established a cab stand at the ferry station whose sole business was to bring the company's passengers to and from the ferry. 192 U.S. at 22, 24 S.Ct. 202. Charges for the taxi service were separate from the company's charges for further transportation by ferry across state lines, and no part of the receipts from the cab service were received as compensation for any service outside the State of New York. Id. The Knight court held that the cab service was "an independent local service, preliminary or subsequent to any interstate transportation" constituting intrastate commerce. Id. at 26-28, 24 S.Ct. 202. The Knight court reasoned as follows:
As we have seen, the cab service is rendered wholly within the state, and has no contractual or necessary relation to interstate transportation. It is either preliminary or subsequent thereto. It is independently contracted for, and not necessarily connected therewith. But when service is wholly within a state, it is presumably subject to state control. The burden is on him who asserts that, though actually within, it is legally outside, the state; and unless the interstate character is established, locality determines the questions of jurisdiction.
Id. at 27, 24 S.Ct. 202.
Here, like Knight, Bell's access services are independently contracted for and wholly performed in Texas. Moreover, because Bell was required to provide network access to all its customers seeking local or long distance service, it was legally prohibited *269 at the time from engaging in any long distance service or competing with any long distance carrier and charged its customers EUCLs whether they made or received any long distance calls, its service did not bear any necessary relation or connection to the provision of any interstate long distance telephone service. Bell's network facilities were mere instrumentalities of commerce whereby Bell exacted a fee for its customers' use of its lines and switches located in Texas to complete their long distance telephone business with an IXC. As such, Bell's service is intrastate; see Detroit International Bridge Co. v. Corporation Tax Appeal Board of Michigan, 294 U.S. 83, 85, 55 S.Ct. 332, 79 L.Ed. 777 (1935) (toll bridge is an "instrumentality which others may use in conducting foreign commerce"); Henderson Bridge Co. v. Kentucky, 166 U.S. 150, 153-54, 17 S.Ct. 532, 41 L.Ed. 953 (1897),[41]i.e., Bell's local service customers and IXCs merely paid Bell for the privilege of using its Texas facilities so that they, in turn, could engage in interstate commerce. Id.[42] Accordingly, we find as reasonable the Comptroller's ad hoc rule recognized in the 2000 Hearing and applied here.
In addition, where, as here, the Comptroller has adopted an ad hoc rule that has a retroactive effect, Grocers Supply Company, Inc. v. Sharp, 978 S.W.2d 638, 643-44 (Tex.App.-Austin 1998, pet. denied), "the reviewing court must also determine *270 whether application of the new policy to a party who relied on the old is so unfair as to be arbitrary and capricious." Microcomputer Technology Institute v. Riley, 139 F.3d 1044, 1050 (5th Cir.1998) (citing 1 K. Davis & R. Pierce, Jr., Administrative Law Treatise § 3.5 at 120 (1994)). Because the Comptroller's ad hoc rule is consistent with the Attorney General's longstanding interpretation rendered in the 1952 Opinion, agency policy interpretations since 1983 and applicable state and federal caselaw, we find the retroactive application of the ad hoc rule regarding LECs non-exempt status for access charges is not "so unfair as to be arbitrary and capricious."
Bell contends the access charges are "revenues from interstate calls" because an interstate long distance call cannot originate or terminate without access to Bell's local loop and long distance calls are by nature uninterrupted transmissions of an electronic signal. However, under these circumstances, whether a voice transmission may be uninterrupted is a distinction without a difference. See Knight, 192 U.S. at 26-28, 24 S.Ct. 202; Bullock, 614 S.W.2d at 216-17. When state taxation of activities or property within a state is at issue, "[i]t is no longer a question of actual interruption of the operation of commerce," and the fact that the interstate activities could not be conducted without the local activities is not conclusive. Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 95-96, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948). "Rather, a prohibited tax exaction is one beyond the power of the state because the taxable event is outside its boundaries or for a privilege the state cannot grant." Id. Here, the privilege to conduct business in Texas is a privilege Texas can grant and the taxable event is confined to Texas payment of a service charge to Bell by a Texas customer for the use of, or access to, Bell's facilities located in Texas.
Moreover, the FCC's interpretation of the nature of the "interconnection" provided by Bell when granting access to its network also supports this result. As discussed earlier, during the relevant time period, Bell was required to provide local telephone service and/or offer local access for long-distance service. See 47 U.S.C. § 153 (2001). This duty included providing for an "interconnection" between Bell's network and the "facilities and equipment" of IXCs. See id. at § 15. The FCC has interpreted the term "interconnection" to be the "physical linking of two networks for the mutual exchange of traffic." Competitive Telecommunications Ass'n v. F.C.C., 117 F.3d 1068, 1071-72 (8th Cir. 1997). See Southwestern Bell Telephone, L.P. v. Missouri Public Service Com'n, 530 F.3d 676, 684 (8th Cir.2008). The FCC's interpretation of the term "interconnection" does not include the transmission or routing of telephone calls. Competitive Telecommunications Ass'n, 117 F.3d at 1071-72. Thus, Bell offers IXCs access to its telephone exchange service or facilities "for the purpose of origination and termination of telephone toll service." 47 U.S.C. § 153(a)(16) (2001) (emphasis added). Although the access service Bell offers to its local customers may also include the transmission of their calls over its local network to the IXC's POP,[43] for practical and business purposes, Bell's transmission ceases when its service is completed at the IXC's POP where Bell "interconnects" with the IXC's long distance facilities. Thus, the EUCLs and *271 special access charges are local charges for a service that begins at the local customers' premises and ends at the IXC's POP in Texas, i.e., begins and ends in Texas.
Although the parties acknowledge that an "interstate telephone call is a complete end-to-end communication that crosses state lines," Bell's access service is not a part of the interstate service provided by the IXC. In a business and practical sense, Bell leases its network to its customer for the purpose of originating and terminating long distance calls. Moreover, Bell supplies no more than an "interconnection" at the IXC's POP and does not transmit or share in the IXC's transmission of the call across state lines. Bell's access service is completed when its local customer's call reaches the IXC's POP, and again, when Bell's lines pick up the return signal at the IXC's POP and transports the signal to the customer's premises. As such, Bell's role is preparatory and incidental to any interstate commerce being conducted between the IXC and its customer. Although the telecommunications industry is highly technical, we must not lose sight of the fact that "taxation is a practical matter, and that what constitutes commerce, manufacture, or production is to be determined upon practical considerations." Utah Power & Light Co., 286 U.S. at 178-79, 52 S.Ct. 548.
Bell also asserts the access charges are interstate rather than intrastate because access charges are federally tariffed charges created under the auspices of the FCC. However, there is no federal mandate giving the FCC exclusive jurisdiction over the regulation or taxation of telecommunications companies. Simply because the FCC regulates telephone companies does not mean that the regulated activities are solely, or necessarily, interstate. Congress may regulate purely intrastate telephone activity to protect interstate commerce. See United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Gilbert, 181 F.3d 152, 158 (1 st Cir.1999) (discussing the "long standing" line of cases holding Congress may regulate purely intrastate telephone activity under the Commerce Clause). Moreover, the Federal Telecommunications Act of 1996 disclaims authority over state taxation. 110 Stat. 56, 144 ("nothing in this Act ... shall be construed to modify, impair, or supersede ... any State or local law pertaining to taxation"). "Federal regulation does not preclude state taxation and state taxation does not preclude federal regulation." Polish Nat. Alliance of United States v. N.L.R.B., 322 U.S. 643, 649, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). Thus, we decline to disturb the Comptroller's determination that, while the FCC's regulation and classification of access charges is informative, it is not determinative. See Comp. Pub. Acct's Hearing No. 35,677, *20 (2000).[44]
C. Operator Assistance Service Charges
Bell also asserts that its revenues from operator assistance charges are revenues from "interstate calls" or "calls in interstate commerce." These services primarily involve directory assistance, busy interrupt, and zero transfer operator assistance. As described by Bell's corporate representative on deposition, these "miscellaneous services [are] associated with [a customer] trying to make or place an interstate call." They are pay-per-use charges for the use of Bell's facilities and personnel located in Texas. As such, these service charges do not represent *272 revenue from a "call," either intrastate or interstate.
Bell urges this Court to adopt a rule whereby its access service and operator assistance receipts would be excluded from apportionment as Texas receipts so long as they enable customers to make "interstate calls" or "calls in interstate commerce."[45] Bell's proposed rule would require an amendment to the Comptroller's Rule and eviscerate the existing exemptions "receipts that enable interstate calls" is a far more expansive exemption than "receipts from interstate calls." Bell has failed to meet its burden of proof in establishing that these access and operator assistance charges are exempt from apportionment as Texas receipts.
Accordingly, Bell's first issue is overruled.
IV. Equal Protection
Bell argues that apportioning its access and operator assistance charges as Texas receipts for franchise tax purposes violates the Equal Protection Clause of the United States Constitution. U.S. Const. amend. XIV.[46] Bell asserts that, although it is similarly situated, IXCs and transportation companies receive preferential treatment because their receipts from intrastate "legs" of interstate telephone service and/or transportation are not apportioned as Texas receipts.[47] Bell also contends that LECs are similar to IXCs because they both participate in the transmission of an interstate phone call utilizing like equipment and facilities located in Texas.
Although states generally have broad powers to impose and collect taxes, classifications among taxpayers may not be arbitrary, unreasonable, or capricious. See Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 901 (1937); Upjohn Co. v. Rylander, 38 S.W.3d 600, 609 (Tex.App.-Austin 2000, pet. denied). Although all persons falling within the same class must be taxed alike, a classification will not be found deficient unless it has no rational basis. Upjohn, 38 S.W.3d at 609.
Despite that LECs and IXCs may utilize similar equipment and facilities to transmit telephone calls, Bell has failed to establish the lack of any rational basis for distinguishing between LECs and IXCs for tax purposes. The business activities of LECs and IXCs are dissimilar because each operates in separate and distinct areas. LECs charge local customers and IXCs for access to, or use of, its intrastate facilities and equipment to transmit the call from the customer's premises to an IXC's POP. Once the call reaches the IXC's POP, the IXC then utilizes its facilities and equipment to transmit its customer's call out of state. The customer contracts with the LEC for local service and *273 access service to complete long distance calls and independently contracts with an IXC for long distance service. That Bell provides a different service than the IXC and Bell's service is intrastate rather than interstate establishes rational bases for distinguishing an LEC such as Bell from IXCs for franchise tax classification purposes. See Westcott Communications, Inc. v. Keeton, 104 S.W.3d 141, 150 (Tex. App.-Austin 2003, pet. denied). Moreover, an LEC cannot engage in the service supplied by the IXC. Because Bell was permitted to maintain its monopoly on "local" telephone service, it was legally prohibited from providing any interstate long distance service to its local customers.
Regarding transportation companies, the differences are even more striking. Not only do the two industries offer different services that neither can engage in on their own, they do not utilize similar equipment or facilities. Moreover, that telephone services may be analogous to transportation services in the abstract is an insufficient basis for contending there is no rational basis for differing tax classifications. See Westcott, 104 S.W.3d at 150.[48]
To the extent Bell contends it is treated differently from IXCs because these services are classified by the Comptroller as intrastate rather than interstate, we have already addressed the issue. Accordingly, Bell has failed to establish that the Comptroller makes an arbitrary and unreasonable distinction between these taxpayers and issue two is also overruled.
V. Summary Judgment Evidence
Bell contends the trial court improperly excluded non-expert testimony in the summary judgment proceedings below. While Bell notes the Comptroller objected to "selected testimony" of two witnesses, Bell does not identify the specific testimony improperly excluded by the trial court and states, "[t]he trial court improperly sustained some of these objections." Bell did not file a written response to the Comptroller's objections nor move for reconsideration of the trial court's decision to sustain the Comptroller's objections to the affidavits of the two witnesses.
An appellant bears the burden of bringing forth a record that demonstrates the trial court abused its discretion when it sustained an appellee's objections to the summary judgment evidence. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.-Dallas 2006, no pet.) Where the record fails to show that a party objected to the trial court's ruling sustaining an opponent's objection to his or her summary judgment evidence, the party has not preserved the right to complain on appeal about the trial court's ruling. Id.
Because Bell objects to "some" but not all of the possible grounds for the trial court's ruling that sustained the objection, Bell has waived the issue. See Malone v. Foster, 956 S.W.2d 573, 579 (Tex.App.-Dallas 1997), aff'd, 977 S.W.2d 562 (Tex.1998). Moreover, there is nothing in the record to show that Bell filed a written response to the Comptroller's written Objections to Plaintiff's Summary Judgment Evidence nor filed a motion for reconsideration of the trial court's order sustaining the Comptroller's objections. Neither were Bell's issues preserved. Bell's third issue is also overruled.
*274 CONCLUSION
Having overruled Southwestern Bell Telephone Company's issues, the trial court's judgment is affirmed.
QUINN, C.J., concurring.
NOTES
[1] The Texas Tax Code authorizes suits to recover franchise taxes required to be paid if the taxpayer first pays the tax under protest. Tex. Tax Code Ann. § 112.052(a) (Vernon 2008). The Tax Code also required Bell to sue both the Comptroller and the Attorney General. § 112.053. The interests of the Comptroller and the Attorney General do not diverge in this case. For convenience, we will refer to both collectively as "the Comptroller." In addition, provisions of the Texas Tax Code will hereafter be cited as "§ ____" or "Section ____."
[2] Because the disputed taxes were incurred between 1996 and 2001, tax statutes and rules existing then are applicable to our analysis. Unless otherwise noted, however, where there has been no material change in the applicable statutes or regulations, we will cite to their current versions.
[3] A LATA is a continuous geographic area that may contain one or more telephone exchanges or area codes. See 16 Tex. Admin. Code § 26.5(116) (2008).
[4] "Local exchange carrier" is defined as "any person that is engaged in the provision of telephone exchange service or exchange access." 47 U.S.C. § 153(26) (2001). An "exchange service" is defined as "service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily provided by the exchange service charge." 47 U.S.C. § 153(47) (2001).
[5] "InterLATA service" means "telecommunications between a point located in a local access and transport area and a point located outside such area." 47 U.S.C. § 153(21) (2001).
[6] Following the enactment of the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, in 2000, the FCC modified the MFJ's interLATA restriction. Section 601(a) of the 1996 Act freed BOCs from the MFJ's prohibition against providing long distance service if the BOC complied with certain provisions in the Act designed to reduce competition and obtained FCC approval through a detailed application process. See 47 U.S.C. §§ 252, 271 (2001).
[7] IXCs are long distance carriers permitted to transport calls across LATA boundaries into other states. During this period, LEC's customers independently contracted directly with their IXC for long distance telephone service.
[8] "Exchange access" is defined as "the offering of access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services." 47 U.S.C. § 153(16) (2001). An "exchange area" is a geographic area, usually comprising of a city and its environs, in which calls therein are treated as "local." 16 Tex. Admin. Code § 26.5(79) & (117), as amended, 24 Tex. Reg. 10056 (1999) (effective date: November 23, 2000).
[9] Bell's local loop consists of a pair of copper wires extending from the customer's premises to the central office switch. Bell's central office switching facilities provide a dial tone to the customer's telephone indicating the local network is available to accept originating calls, carry numbers during the dialing process, transmit voice communication, and direct the call to a local service address or IXC's POP to be switched out-of-state. Local switching systems are also connected to operator systems, directory assistance systems, and 911 systems.
[10] Companies providing telephone service have traditionally been regulated as monopolistic public utilities. Verizon Communications, Inc. v. F.C.C., 535 U.S. 467, 477, 122 S.Ct. 1646, 1661, 152 L.Ed.2d 701 (2002). See 70 Tex. Jur.3d Telecommunications § 2 (1999). As such, Bell is subject to federal regulation by the FCC; Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (codified in various sections of titles 15 and 47 of the United States Code) ("Telecommunications Act of 1996"), and state regulation by the Public Utilities Commission of Texas. Public Utility Regulatory Act, Tex. Util.Code §§ 11.001-64.203. The FCC sets long distance rates including access charges for interstate long distance service while the PUC sets access charges for intrastate long distance service. See AT & T Communications of Texas, 186 S.W.3d at 521-22; Public Utility Com'n of Texas v. Allcomm Long Distance, Inc., 902 S.W.2d 662, 664 (Tex.App.-Austin 1995, writ denied).
[11] A telecommunication tariff defines a service, the terms and conditions of the service, how it will be provided, and the rates associated with the service to be charged to the customer. See 47 U.S.C. § 203 (2001); Mincron SBC Corp. v. Worldcom, Inc., 994 S.W.2d 785, 789 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Southwestern Bell Telephone Co. v. Metro-Link Telecom, Inc., 919 S.W.2d 687, 691 (Tex.App.-Houston [14th Dist.] 1996, pet. denied) ("A tariff is a document which lists a public utility's services and rates for those services.") The filed tariff governs a telecommunications service carrier's relationship with its customers, and such tariffs have the force and effect of law until suspended or set aside. 994 S.W.2d at 789, 919 S.W.2d at 692 (citing Keogh v. Chicago & Northwestern Railway, 260 U.S. 156, 162-63, 43 S.Ct. 47, 67 L.Ed. 183 (1922)). In 1995, Bell's Access Service Tariff filed with the Texas Public Utility Commission applied to "the provision of Carrier Common Line, End User Access, Switched Access, and Special Access services, and other miscellaneous services...." See AT & T Communications of the Southwest v. Public Utility Com'n of Texas, 906 S.W.2d 209, 213 n. 6 (Tex.App.-Austin 1995, writ denied).
[12] LEC revenues are recorded in a series of uniform accounts established by the FCC. See 47 C.F.R. § 32.4999(n) (2001). "Network Access Revenues" are deposited in FCC Accounts 5080-5084 and are "derived from the provision of exchange access services to an interexchange carrier or to an end user of telecommunications services beyond the exchange carrier's network." 47 C.F.R. § 32.4999(i) (2001).
[13] The tax in issue related to Account 5081 is $24,115,771.14.
[14] The tax in issue related to Account 5083 is $18,922,278.76.
[15] The tax in issue related to Account 5160.1 is $98,527.49.
[16] Section 171.1032 of the Texas Tax Code was deleted in 2008. Nevertheless, because this statute was applicable during the period at issue, we will refer to this statute as "Section 171.1032" or " § 171.1032" throughout this opinion for convenience.
[17] For convenience, this provision will be referred to as "34 Tex. Admin. Code § 3.557 (1992)" throughout the remainder of this opinion. This Rule was amended in 2003 to further clarify the Comptroller's exemption. See 34 Tex. Admin. Code § 3.557(e)(39) (2008), as amended, 28 Tex. Reg. 1218 (Effective: February 12, 2003). The new Rule is prospective in its application and does not apply here. "Adjudication deals with what the law was; rulemaking deals with what the law will be." Bowen v. Georgetown University Hospital, 488 U.S. 204, 221, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J., concurring). See Amarillo Independent School Dist. v. Meno, 854 S.W.2d 950, 958 (Tex.App.-Austin 1993, writ. denied).
[18] Comptroller of Public Accounts, Star System Accession No. 830R0687A12 (Effective: March 30, 1983). The State Tax Automated Research (STAR) System may be accessed at: http://www.window.state.tx.us/taxinfo/ franchise.
[19] STAR Accession No. 8901L0929D04 (January 1, 1989).
[20] STAR Accession No. 9403L1354G06 (March 25, 1994).
[21] STAR Accession No. 9803494L (March 6, 1998).
[22] "Although opinions of the Attorney General are merely advisory and not binding on the courts, they are entitled to careful consideration"; Welmaker v. Cuellar, 37 S.W.3d 550, 552 (Tex.App.-Austin 2001, pet. denied), and are "highly persuasive." Plainview Independent School Dist. v. Edmonson Wheat Growers, Inc., 681 S.W.2d 299, 302 (Tex.App.-Amarillo 1984, writ ref'd n.r.e.).
[23] Bell deposits EUCL revenues in FCC denominated accounts designated as "network access accounts." 47 C.F.R. § 32.4999(i) (1995). "Network Access Accounts" include "revenues derived from the provision of exchange access services to ... an end user of telecommunications services beyond the exchange carrier's network." Id. (emphasis added).
[24] "Disposal" means "the power or authority to dispose or make use of as one chooses." Merriam-Webster's Collegiate Dictionary at 361.
[25] Texas Public Utility Commission defines the term "services," in pertinent part, as follows:
Has its broadest and most inclusive meaning. The term includes any act performed, anything supplied, and any facilities used or supplied by a public utility in the performance of the utility's duties ... to its patrons... and the public. The term also includes the interchange or facilities between two or more public utilities....
26 Tex. Admin. Code § 23.3-5 (2008) (emphasis added), as adopted, 23 Tex. Reg. 9322 (Effective date: September 16, 1998).
[26] Similar interpretations have been applied by courts in litigation involving Public Utilities Commission orders; Allcomm Long Distance, Inc., 902 S.W.2d at 664 (access service involves use of the LEC's local exchange telephone networks to connect long distance calls), and tariff litigation. See Southwestern Bell Telephone Co. v. Metro-Link Telecom, 919 S.W.2d 687, 690 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (use of local network to provide long distance service termed an access service); AT & T Communications of the Southwest, 906 S.W.2d at 213 n. 6 (Bell's State Access Service Tariff included end user access charges).
[27] As director of access regulatory, Bell's representative testified that he dealt with the FCC and various state public service commissions on issues related to "access services, interstate, and state access services."
[28] The term "operator service" is defined as "[a] service using a live operator or automated operator functions to handle telephone service such as toll calling using collect, third number billing, and calling card services." Tex. Util.Code Ann. at § 55.081. The terms "toll call" and "long distance call" are interchangeable. See Merriam-Webster's Collegiate Dictionary at 1315; ("toll: a charge for a long-distance telephone call").
[29] EUCL and Special Access charges are Network Access Revenues; 47 C.F.R. § 32.4999(i) (2001), "derived from the provision of exchange access services to an interexchange carrier or to an end user of telecommunications services beyond the exchange carrier's network." Id. As such, both EUCLs and Special Access charges are subject to the same analysis here.
[30] Bell does not challenge the constitutionality of applying the franchise tax to its access service revenues. The Texas franchise tax is constitutional; Ford Motor Co. v. Beauchamp, 308 U.S. 331, 334-35, 60 S.Ct. 273, 84 L.Ed. 304 (1939), and states are permitted to tax telephone calls that originate or terminate within a state. Goldberg v. Sweet, 488 U.S. 252, 264, 109 S.Ct. 582, 102 L.Ed.2d 607 (1989). See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279-80, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977).
[31] See also Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 93, 95-96, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948) (state franchise tax on a gas pipeline company involved in interstate commerce for local activities such as "maintaining, keeping in repair and manning facilities used to transport gas upheld as "doing business" in Mississippi"); Utah Power & Light Co. v. Pfost, 286 U.S. 165, 182-83, 52 S.Ct. 548, 76 L.Ed. 1038 (1932) (A "tax may indirectly and incidentally affect such commerce, just as any taxation of railroad and telegraph lines does, but this is not a forbidden burden or interference.")
[32] STAR Accession No. 7208H1005C09 (February 2, 1972).
[33] Comptroller of Public Accounts, STAR Accession No. 7603R0198E10 (Effective: March 24, 1976).
[34] Comptroller of Public Accounts, STAR Accession No. 7905R1012D02 (Effective: May 1, 1979).
[35] Comptroller of Public Accounts, STAR Accession No. 830R0687A12 (Effective: March 30, 1983).
[36] STAR Accession No. 8901L0929D04 (January 1, 1989). The Comptroller's Letter Ruling also indicated that, due to previous correspondence from the Comptroller's office, Bell might have been misled as to whether the Comptroller viewed access service charges as charges for an intrastate or interstate service. The Comptroller made the following concession:
Therefore, we will not set up the access charges in Accounts 508 or 509 in the audits we have in progress. However, this letter should put you on notice that we consider this to be a taxable receipt, and for franchise tax purposes, includable in the next tax return due on June 15, 1989.
(emphasis added).
[37] STAR Accession No. 9803494L (March 6, 1998); STAR Accession No. 9403329L (March 25, 1994); STAR Accession No. 9203L1230G09 (March 19, 1992).
[38] STAR Accession No. XXXXXXXXXH (Nov. 14, 2000).
[39] Bell contends the Comptroller should have adopted a rule to this effect through formal rule making rather than using an ad hoc method such as adjudication. See Texas Ass'n of Long Distance Telephone Companies (TEXALTEL) v. Public Utility Com'n of Texas, 798 S.W.2d 875, 887 (Tex.App.-Austin 1990, writ denied) (an ad hoc rule is "an agency statement that interprets, implements, or prescribes agency law or policy"). The Comptroller has discretion to engage in formal rule-making and "the power to enforce state tax collection statutes due to changes in the constitution or laws of the United States and judicial interpretations thereof." § 111.002(a). Thus, the Comptroller had discretion to proceed by general rule or by ad hoc adjudication. See City of El Paso v. Public Utility Com'n of Texas, 883 S.W.2d 179, 188 (Tex. 1994); South Plains Lamesa Railroad, Ltd. v. High Plains Underground Water, 52 S.W.3d 770, 782 (Tex.App.-Amarillo 2001, no pet.) (Quinn, J., concurring) (citing Securities and Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 202, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). Given the newly created competitive markets in the telephone industry in the 1980s and 1990s largely due to evolving technological advances coupled with the creation of new federal and state telecommunication regulatory regimes charged with balancing competing statutory objectives, we cannot say the Comptroller abused his discretion here by proceeding on an ad hoc or "case-by-case" basis. See Southwestern Bell Tel. Co. v. Public Util. Comm'n, 745 S.W.2d 918, 926-27 (Tex. App.-Austin 1988, writ denied). Moreover, the Comptroller's policy related to EUCLs does not represent a departure from prior guidance regarding apportionment of LEC "access charges." Thus, any possible reliance by Bell on the Comptroller's past decisions would not require a different result. This is particularly so where Bell received guidance by letter in 1989.
[40] Bell's contention that an auditor's inconsistent tax treatment of a telephone company's EUCL charges, as evidenced in the Administrative Law Judge's fact statement in Hearing No. 35,677, negates the Comptroller's consistent tax treatment is unpersuasive. The Comptroller cannot be estopped by the erroneous or negligent acts of its agents or employees; S & H Marketing Group, Inc. v. Sharp, 951 S.W.2d 265, 266-67 (Tex.App.-Austin 1997, no writ), and a failure to enforce a tax statute or Comptroller policy or rule does not establish an affirmative policy to the contrary. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 248 (Tex.1991).
[41] The Henderson court aptly observed:
Clearly the tax was not a tax on the interstate business carried on over or by means of the bridge, because the bridge company did not transact such business. The business was carried on by the persons and corporations which paid the bridge company tolls for the privilege of using the bridge.
166 U.S. at 154, 17 S.Ct. 532. In Newell Bridge & Railway Company v. Dailey, 451 U.S. 942, 101 S.Ct. 2026, 68 L.Ed.2d 331 (1981), Justices White and Blackmun, dissenting from a denial of a petition for writ of certiorari, opined that the Supreme Court's holding in Henderson Bridge Co. would likely be upheld under the test established in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977) because the state franchise tax was apportioned and indicated that, had the tax in Detroit International Bridge been apportioned, Detroit International Bridge would have been upheld as well. Dailey, 451 U.S. at 944-45, 101 S.Ct. 2026 (White, J., Blackmun, J., dissenting). Thus, contrary to Bell's assertions, our analysis is the same regardless whether we apply United States Supreme Court precedent prior to, or after, adoption of the Complete Auto test for determining whether Texas's franchise tax including "access charges" runs afoul of the Commerce Clause. See fn. 32, supra.
[42] Telephone service contracts between the subscriber and an LEC, such as Bell, are analogous to equipment leasing arrangements. See 70 Tex. Jur.3d Telecommunication § 118 (1999) ("The usual contract for telephone service amounts to a lease of certain instrumentalities to the subscriber in consideration of a prescribed sum each month.") See generally Kelly v. Southwestern Bell Telephone Co., 248 S.W. 658, 659 (Tex. Comm'n App.1923, judgm't. adopted). Such contracts are intrastate in nature. See Puget Sound Stevedoring Co. v. Tax Com'n State of Washington, 302 U.S. 90, 94, 58 S.Ct. 72, 82 L.Ed. 68 (1937) (if a company acts as a labor or employment bureau and supplies labor for the use of a shipowner to load a vessel, it is no part of interstate commerce even "though transactions of such commerce were increased thereby"); Young & Company of Houston v. Calvert, 405 S.W.2d 174, 175 (Tex. Civ.App.-Austin 1966, writ ref'd), cert. denied, 386 U.S. 914, 87 S.Ct. 866, 17 L.Ed.2d 786 (1967) (equipment leasing contracts for machinery utilized by stevedores to load ocean-going vessels represents an "independent transaction preparatory to" engaging in foreign commerce leases are local transactions). See Atty. Gen. Op. No. C-86 (May 30, 1963) (rental revenue derived from automobiles, trucks, tow boats, and barges is "gross receipts from business done within Texas," regardless whether the vehicles are used by the lessees outside of Texas to be interstate, lessors must perform services with respect to the rental equipment outside of Texas).
[43] This transmission is extremely limited. Expert testimony in the record indicates that, before the caller completely dials the long distance number, the call has reached the IXC's long distance switch.
[44] STAR Accession No. XXXXXXXXXH (Nov. 14, 2000).
[45] "Enable" is defined as "to provide with the means or opportunity; to make possible, practical, or easy." Merriam-Webster's Collegiate Dictionary at 409.
[46] The requirements for equal protection under the United State Constitution and the Texas Constitution are substantially the same. Rylander v. 3 Beall Bros., 3, Inc., 2 S.W.3d 562, 567 (Tex.App.-Austin 1999, no pet.). See Tex. Const. art. VIII, § 1.
[47] An IXC's revenue from interstate, long distance services is clearly exempt from apportionment as a Texas receipt under franchise tax rules. For purposes of apportioning earned surplus under the franchise tax, transportation companies must "report Texas receipts from transportation services in intrastate commerce." 34 Tex. Admin. Code § 3.557(d)(41) (1992). For purposes of apportioning taxable capital under the franchise tax, transportation companies must report Texas receipts from transportation services by "including receipts derived from the transportation of goods or passengers in intrastate commerce." 34 Tex. Admin. Code § 3.549 (1998).
[48] Bell attempts to draw an analogy between EUCLs and charges by transportation companies shipping interstate when there is an intrastate leg involved with the interstate shipment. Such an analogy fails, however, because Bell is not involved in interstate "business," i.e., an EUCL is a service charge for access to its equipment and facilities located in Texas. As stated earlier, there is simply no interstate component to the service Bell is offering. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589774/ | 972 So.2d 1221 (2007)
Latosha K. CHISLEY, Plaintiff-Appellee
v.
Antoney D. COLEMAN and USAgencies Casualty Insurance Company, Defendant-Appellant.
Shantae Chisley, Plaintiff-Appellee
v.
Antoney D. Coleman and USAgencies Casualty Insurance Company, Defendant-Appellant.
Nos. 42,750-CA, 42,751-CA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 2007.
*1222 Mark J. Neal, Monroe, for Appellant, USAgencies Casualty Insurance Company.
James R. Pierre, Monroe, for Appellees.
Before BROWN, WILLIAMS and MOORE, JJ.
WILLIAMS, J.
In these consolidated cases, plaintiffs, LaTosha Chisley and Shantae Chisely, filed lawsuits against defendants, Antoney D. Coleman ("Coleman") and USAgencies Insurance Company ("USAgencies"), seeking damages for injuries they sustained in an automobile accident. Following a bench trial, the trial court entered judgment in favor of plaintiffs and awarded damages. For the reasons set forth herein, we reverse the trial court's judgment and render judgment in favor of defendant, USAgencies, dismissing plaintiffs' demands.
FACTS
This suit arises out of an automobile accident that occurred on September 20, 2005 on Winnsboro Road in Monroe, Louisiana. Plaintiffs filed separate lawsuits, naming Coleman and USAgencies as defendants, alleging that the vehicle driven by LaTosha Chisley ("LaTosha") collided with a vehicle driven by Coleman. Shantae Chisley ("Shantae") was riding as a passenger in LaTosha's vehicle. Plaintiffs further alleged that the vehicle driven by Coleman was owned by Shon J. Mckoin and insured by USAgencies.[1] Plaintiffs asserted that the accident was caused solely by Coleman's negligence, and Coleman and USAgencies were liable in solido for plaintiffs' damages and losses. However, in the prayers of the petitions, plaintiffs stated, "Wherefore, petitioner prays . . . there be judgment against SHON J. MCKOIN AND USAGENCIES . . . in solido. . . ."
USAgencies filed a dilatory exception of vagueness or ambiguity of the petition, arguing, inter alia, that its insured, Shon J. Mckoin, was not named as a defendant *1223 in the action. Plaintiffs filed amended petitions, amending the prayers to state, "Wherefore, petitioner prays . . . there be judgment against ANTONEY D. COLEMAN AND USAGENCIES . . . in solider. . . ." Thereafter, USAgencies answered the petitions, admitting that it "provided a liability insurance policy in favor of Shon J. McKoin" and denying liability. The matters were later consolidated for trial,
Neither Coleman nor Mckoin was ever served or cited to appear. They were not subpoenaed for trial and did not appear.
A bench trial was held on March 20, 2007. Plaintiffs conceded that Coleman and Mckoin had not been served or cited and elected to proceed to trial against USAgencies under the direct action statute. During the trial, plaintiffs offered the testimony of Corporal Robert Crowder of the Monroe Police Department, Dr. Gary Mayfield, LaTosha and Shantae. Plaintiffs also introduced into evidence a certified copy of the USAgencies policy issued to Mckoin, insuring two vehicles, and plaintiffs' medical records. At the conclusion of the trial, the trial court found Coleman at fault for causing the accident. The court awarded LaTosha $8,500 in general damages, $2,958.49 in medicals and $750 in expert witness fees. With regard to Shantae, the trial court awarded $8,500 in general damages, $2,554 in medicals and $750 in expert witness fees.
DISCUSSION
It is well settled that the burden is on the plaintiff to make a prima facie showing that one is an insured under an insurance policy. Turner v. Ewing, 255 La. 659, 232 So.2d 468 (La.1970); Alexander v. Cornett, 42,147 (La.App.2d Cir.7/11/07), 961 So.2d 622; C.L. Morris, Inc. v. Southern American Ins. Co., 550 So.2d 828 (La. App. 2d Cir.1989). While a plaintiff may proceed to trial against an insurer without the insured, the direct action statute does not create an independent cause of action against an insurer, but merely grants a procedural right of action against an insurer when the plaintiff establishes a substantive cause of action against an insured. Descant v. Administrators of Tulane Educational Fund, 93-3098 (La.7/5/94), 639 So.2d 246. In addition to having the burden of proving negligence on the part of the tortfeasor, a plaintiff suing under the direct action statute must prove the existence of the policy and coverage under that policy. Tunstall v. Stierwald, XXXX-XXXX (La.2/26/02), 809 So.2d 916.
The party claiming coverage has the burden of proving express or implied permission to use the vehicle. Perkins v. McDow, 615 So.2d 312 (La.1993); Jones v. Foster, 41,619 (La.App.2d Cir.12/13/06), 945 So.2d 262; Wade v. Autoland Inc., 32,903 (La.App.2d Cir.5/26/00), 767 So.2d 766, writ denied, 2000-2180 (La.10/13/00), 771 So.2d 651. The plaintiff must prove express or implied permission of the insured in order to obtain coverage under the omnibus clause. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398; Jones, supra.
In the instant case, the trial testimony established that plaintiffs were involved in an automobile accident on September 20, 2005. The testimony also established that plaintiffs sustained injuries for which they underwent chiropractic treatment.
Corporal Robert Crowder of the Monroe Police Department testified that he investigated an accident on Winnsboro Road on September 20, 2005. He stated that he prepared an accident report in connection *1224 with the accident and had reviewed the report in preparation for his testimony. Cpl. Crowder testified that after investigating the accident, he issued a traffic citation to the driver of "vehicle # 1" for improper turn. He also testified that La-Tosha Coleman was listed as the driver of "vehicle # 2" and Shantae. Coleman was listed as the passenger. However, the officer did not name the driver of "vehicle # 1" and did not describe the make, model and year of that vehicle.[2]
Dr. Gary Mayfield, the chiropractor who treated both plaintiffs, testified with regard to plaintiffs' injuries and subsequent treatment. According to Dr. Mayfield's testimony and medical reports, plaintiffs' injuries were associated with the instant accident.
Both plaintiffs also testified at trial. LaTosha testified that on the day of the accident, she was driving east on Winnsboro Road when a vehicle traveling, west made a left turn in front of her, causing a collision. Shantae's testimony corroborated LaTosha's testimony. However, although plaintiffs described the vehicle driven by LaTosha as a "white Taurus," neither plaintiff identified the driver of the other vehicle, and no description of the other vehicle was offered.
The USAgencies application for insurance admitted into evidence listed Shon J. Mckoin as the "owner/applicant." The USAgencies insurance policy listed Mckoin as the named insured and provided insurance coverage for two vehicles: a 1994 Oldsmobile Achieva and a 1997 Chevrolet Lumina.
After reviewing the record, we find that plaintiffs failed to prove that USAgencies provided insurance coverage with regard to this accident. It is clear from the record that plaintiffs were involved in an automobile accident with another vehicle on September 20, 2005 and suffered injuries and underwent treatment as a result of that accident. The record also established that USAgencies had issued a policy to Mckoin, insuring two automobiles. However, there was nothing in the record to establish Coleman as the driver of the vehicle that struck plaintiffs' vehicle. Likewise, there is nothing in the testimony or record to establish that the offending vehicle was owned by Mckoin and insured by USAgencies. Moreover, Coleman was not a named insured under the USAgencies policy, and plaintiffs did not allege or prove that Coleman was a resident of Mckoin's household or that he was driving Mckoin's vehicle with Mckoin's express or implied permission. Accordingly, the judgment in favor of plaintiffs is hereby reversed, and we render judgment in favor of defendant, USAgencies, dismissing plaintiffs' claims.[3]
CONCLUSION
For the foregoing reasons, we reverse the trial court's judgment in favor of plaintiffs and render judgment in favor of defendant, USAgencies, dismissing plaintiffs' demands. Costs are assessed to plaintiffs.
REVERSED AND RENDERED.
NOTES
[1] In their petitions for damages, plaintiffs alleged:
* * *
5.
The petitioner alleges on information and belief, that at the time of the collision described above, the vehicle driven by ANTONEY D. COLEMAN and owned by SHON J. MCKOIN was covered by an automobile liability insurance policy, which had been sold and delivered by U.S. Agencies Casualty Insurance Company, which policy was then in full force and effect by virtue of the payment of premiums in coverage.
6.
The petitioner further alleges on information and belief that under the terms of said policy, U.S. Agencies Casualty Insurance Company obligated itself to pay any and all damages caused to others as a result of the negligence of ANTONEY D. COLEMAN herein described as the vehicle being driven by ANTONEY D. COLEMAN and owned by SHON J. MCKOIN, described above, was covered by said policy as the time of said collision.
* * *
[2] The diagram that Cpl. Crowder made depicting the location of the vehicles during the accident was introduced into evidence; however, the police report was not introduced into evidence. The drivers of the vehicles were not named in the diagram, and the diagram did not contain a description of the vehicles involved.
[3] Due to our ruling herein, we pretermit consideration of. USAgencies' argument with regard to damages in excess of the policy limits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589800/ | 270 S.W.3d 394 (2007)
Betty BOLDING, Appellant,
v.
David NORSWORTHY, Executor of the Estate of Harold Deaton Norsworthy, Deceased, Appellee.
No. CA 07-469.
Court of Appeals of Arkansas.
December 19, 2007.
Rehearing Denied January 23, 2008.
Compton, Prewett, Thomas & Hickey, LLP, by: Floyd M. Thomas, Jr., El Dorado, for appellant.
Vickery & Carroll, P.A., by: Ian W. Vickery, El Dorado, for appellee.
SARAH HEFFLEY, Judge.
Appellant Betty Bolding appeals the trial court's order awarding ownership of approximately $50,000 in bank account funds to her late brother's estate. Appellant contends that the trial court erred in its determination that she was not entitled to the funds as a joint owner with right of survivorship. We find no error in the trial court's judgment and affirm.
The dispute in this case concerns a savings account opened on April 6, 1987, in the name of Harold Deaton Norsworthy, appellant's brother. The signature card on the account contained the signatures of both Harold Norsworthy and appellant. On February 15, 2006, Harold Norsworthy passed away, and appellant withdrew all of the funds in the account, approximately $50,000, and placed them in her own personal account. On June 19, 2006, David Norsworthy, son of the decedent and executor of the decedent's estate, filed a complaint in Union County Circuit Court, arguing that appellant was not a joint owner of the account and that the money in the account should be returned to the estate. Appellant answered the complaint and alleged that she was the rightful owner of the money as the account was held in joint tenancy with right of survivorship.
A bench trial on the matter was held on February 23, 2007. Rodney Landes, Jr., president of the bank at which the account was held, testified that it was possible to have a single owner of an account but have several people sign on the account. Mr. *395 Landes also read the language of the signature card at issue, which stated in pertinent part:
A, Mr. Harold D. Norsworthy
and B,
and C,
as joint tenants with right of survivorship, and not as tenants in common, and not as tenants by the entirety, the undersigned hereby apply for a savings account in First Federal Savings and Loan Association of El Dorado [now First Financial Bank] and for the issuance of evidence thereof in their joint names, described as aforesaid. You are directed to act pursuant to any one or more of the joint tenant signatures shown below in any manner in connection with this account and without limiting the generality of the foregoing to pay without any liability for such payment to anyone or the survivor or survivors at any time. This account may be pledged in whole or in part as security for a loan made by you to one or more of the undersigned. Any such pledge shall not operate to sever or terminate either in whole or in part the joint tenancy estate and relationship reflected in or established by this contract. It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account.
* * *
A. /s/ Harold Norsworthy P.O. Drawer C
Smackover, AR 71762
B. /s/ Betty Bolding
C.
(Emphasis added.) As the card illustrates, there was only one name that was "aforesaid," but there were two names as the "undersigned." Mr. Landes explained that his impression was that Harold Norsworthy was the owner of the account and appellant was an authorized signer, meaning she had the authority to write checks on the account.
Appellant testified that her brother added her name to the account in order to compensate her for caring for him in his later years, and her brother had never told her that she was to distribute the money to his children at his death. When questioned about the creation of the account in 1987, appellant first asserted that she did not sign the signature card at the bank and did not accompany her brother to the bank. But appellant later admitted that she had testified in an earlier deposition that she had been cleaning her brother's house one day and "I found this thing that had my name and his on the bank deposit I mean, on the deposit slip, so he had me sign the paper at the bank, which he didn't tell me exactly what it was then."
In a judgment filed March 23, 2007, the trial court gave credence to Mr. Landes's testimony that the bank recognizes a distinction between ownership of an account and access to an account. The trial court concluded that the signature card that created the account was ambiguous, as it makes reference to the "undersigned," which would include appellant, and then makes a contradictory reference to the joint names as "aforesaid," which would refer only to the decedent. The court therefore considered other factors, such as: (1) the social security number listed on the account was that of the decedent; (2) the account was funded by the decedent; (3) appellant did not contribute to the account or pay taxes on its interest earnings; (4) there is no other writing to indicate appellant's ownership of the funds or a gift to her through survivorship of the decedent. The court acknowledged that appellant *396 had the power to withdraw the funds in the account, but concluded "that power does not equate to ownership of the funds." The court found that ownership of the funds rested with the estate and ordered appellant to remit the remaining funds to appellee. Appellant then filed a timely notice of appeal to this court.
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court's findings were clearly erroneous or clearly against the preponderance of the evidence. Parker v. BancorpSouth Bank, 369 Ark. 300, 253 S.W.3d 918 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Simmons v. Dixon 96 Ark.App. 260, 240 S.W.3d 608 (2006).
On appeal, appellant argues that the trial court erred because Ark.Code Ann. § 23-37-502 (Repl.2000) creates a conclusive presumption that opening a savings account in the name of two or more persons is evidence that both parties intended to vest title in the account to the survivor upon the death of the other. Section 23-37-502 provides:
Savings accounts may be opened in any association or a federal association in the names of two (2) or more persons ... and the savings accounts may be held as follows:
(1)(A) If the person opening the savings account fails to designate in writing the type of account intended, or if he designates in writing to the association that the account is to be a "joint tenancy" account or a "joint tenancy with right of survivorship" account, or that the account shall be payable to the survivors of the persons named in the account, then the account and all additions thereto shall be the property of those persons as joint tenants with right of survivorship.
* * *
(C) The opening of the account in this form shall be conclusive evidence in any action or proceeding to which either the association or the surviving parties is a party, of the intention of all of the parties to the account to vest title to the account and the additions thereto in the survivors.
Appellant argues that in this case, her signature and the decedent's signature on the bottom of the bank card is sufficient to satisfy the statute and create the presumption of right of survivorship.
Appellant's argument in this regard begs the question, however, of whether this particular writing sufficiently designated the account as a joint tenancy with right of survivorship. Appellant fails to address the trial court's finding that the document was ambiguous, and instead only argues that the trial court erred in conducting a "factual inquiry" into the ownership of the funds. But our case law has made clear that where there is uncertainty of meaning in a written instrument, an ambiguity is present, and parol evidence may be admitted to prove an independent, collateral fact about which the written contract was silent. Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006). We find that the trial court's finding of ambiguity and subsequent consideration of extraneous evidence was not clearly erroneous.
Appellant also argues that there was not sufficient evidence presented to show that the decedent intended the funds to pass to his estate and that the trial court improperly *397 imposed what amounts to a constructive trust without evidence to support such an action. As to the sufficiency of the evidence, that argument has been addressed in the point above. As to the imposition of a constructive trust, we agree with appellee that the argument is without merit, as the trial court simply ordered the funds returned to the estate and made no indication that it was creating a constructive trust. Overall, we find that the trial court's findings in this case were not clearly erroneous, and we accordingly affirm the judgment.
Affirmed.
GLOVER and BAKER, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646432/ | 9 So.3d 622 (2009)
WILSON
v.
STATE.
No. 1D09-0512.
District Court of Appeal of Florida, First District.
May 13, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558364/ | Fourth Court of Appeals
San Antonio, Texas
August 21, 2020
No. 04-20-00256-CR
The STATE of Texas,
Appellant
v.
Chase Ray COLEMAN,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 10238CR
Honorable Tully Shahan, Judge Presiding
ORDER
On July 27, 2020, the State filed a motion for extension of time to file the State’s brief
until August 31, 2020 on the basis that the State was awaiting a supplemental clerk’s record. On
August 17, 2020, this court ordered the trial court clerk to file the supplemental clerk’s record by
August 31, 2020. In light of this court’s prior order, the State’s motion for extension is
GRANTED as follows: the State’s brief is due no later than September 30, 2020. Further
requests for extension of time to file the State’s brief will be disfavored.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of August, 2020.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1919284/ | 116 Pa. Commonwealth Ct. 264 (1988)
541 A.2d 1164
Pennsylvania Industries for the Blind and Handicapped, Petitioner
v.
Department of General Services, Respondent.
No. 1190 C.D. 1987.
Commonwealth Court of Pennsylvania.
Argued April 20, 1988.
May 20, 1988.
*265 Argued April 20, 1988, before Judges COLINS and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
Mary D. France, Cleckner and Fearen, for petitioner.
Gary F. Ankabrandt, Assistant Counsel, with him, Michael D. Reed, Chief of Litigation, and William W. Warren, Jr., Chief Counsel, for respondent.
OPINION BY JUDGE COLINS, May 20, 1988:
Pennsylvania Industries for the Blind and Handicapped (petitioner) appeals the order of the Secretary of *266 General Services (Secretary) which confirmed the presiding officer's proposed report finding that the Department of General Services (respondent) did not abuse its discretion in awarding service purchase contracts to the lowest bidder. For the reasons which follow, we agree.
The facts are as follows: In February, 1986, petitioner informed the Pennsylvania Department of Transportation, Engineering Division (DOT) that it was interested in providing complete maintenance services for Rest Area Sites 17-18, 19-20, 21-22, and E beginning July 1, 1986.[1] As petitioner was interested in a number of the Rest Area maintenance contracts, DOT asked its central office for guidelines.
The DOT central office provided DOT with guidelines for establishing the fair market price, which was supplied by the respondent. The guidelines instructed DOT to solicit bids in the open market and to establish the low bid price as the fair market price. DOT solicited bids from contractors interested in providing maintenance services for the Rest Area Sites.
DOT informed petitioner, by letter dated May 5, 1986, that the fair market price for each of the Rest Area Sites was established by the low bid prices meeting specifications. In a letter dated May 19, 1986, petitioner accepted the Rest Area maintenance contracts for Sites 17-18 and 19-20 at the established fair market prices (the low bid prices). Contracts for those sites were awarded to petitioner.
*267 In petitioner's May 19, 1986, letter, petitioner also informed DOT that the respondent should review the fair market prices established by DOT for Sites 21-22 and E, and that the respondent should establish the fair market price in accordance with the law. The Bureau of Purchases for the respondent reviewed the prices established by DOT for Sites 21-22 and E and concluded that they represented the fair market prices. DOT subsequently requested a hearing before the respondent and a determination by the Secretary.
In a proposed report, the presiding officer concluded that the respondent did not abuse its discretion in determining that the low bid price meeting specifications was established as the fair market price. The report also concluded that the low bid prices for the Rest Area Sites 21-22 and E were fair market prices for 1986-87. In an order dated May 4, 1987, the Secretary confirmed the presiding officer's proposed report.
Petitioner argues that: (1) it was an abuse of discretion for the Secretary to establish the low bid price as the fair market price; (2) the cost of the agency in performing the services in the prior year should have been considered by the respondent in establishing the fair market price for the current contract year; and (3) a contract which is subject to review to determine the fair market price should not be awarded until the final determination of the fair market price.
Our scope of review is limited to a finding of whether an error of law was committed, constitutional rights were violated, or whether substantial evidence supports the findings of fact. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
We note that the issue presented before us is moot. However, in cases in which there is a likelihood that the issue will reappear before this Court, we will exercise *268 jurisdiction over the matter. Colonial Gardens Nursing Home v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977).
Section 2409.1 of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §639.1(b), states, in pertinent part: "The Secretary of General Services shall have the power, and it shall be his duty, to determine the fair market price on any product or service, the practice of which is not licensed under the laws of this Commonwealth, which handicapped persons can manufacture or perform. . . ."
In adopting Section 2409.1(c) of the Code, the legislature intended to help the handicapped help themselves by requiring the Commonwealth to procure from them all services needed without competitive bidding, provided that they are willing and able to perform competently and at a price determined by the Commonwealth to be the fair market price. Pennsylvania Industries for the Blind & Handicapped v. Larson, 496 Pa. 1, 436 A.2d 122 (1981).
Section 2409.1 of the Code provides the Secretary with broad discretion in determining the fair market prices for service contracts. The Secretary has determined that for services, where competitive bidding is used to identify the prevailing market prices, the low bid shall be established as the fair market price unless: (a) the low bid is not responsive; (b) the low bid is unreasonably low and is considered a "low-ball" bid; or (c) the low bidder is not a responsible bidder, pursuant to Section 2409.1 of the Code.
It is within the Secretary's discretion to make such a determination and we find that the Secretary has not abused his discretion in stating that the low bid shall be established as the fair market price in competitive bidding circumstances. Nowhere in this record is there any evidence which would suggest that there was anything other than the Secretary's sound exercise of his discretion.
*269 An administrative agency has wide discretion when establishing rules, regulations and standards, and also in performance of its administrative duties and functions. Pennsylvania Game Commission v. Department of Environmental Resources, 97 Pa. 78, 509 A.2d 877 (1986). A reviewing court cannot overturn an agency's exercise of its discretion absent proof of fraud, bad faith or a blatant abuse of discretion. Wengrzyn v. Cohen, 92 Pa. Commonwealth Ct. 154, 498 A.2d 61 (1985). The record does not contain any evidence of fraud, bad faith, or a blatant abuse of discretion.
Petitioner also argues that the contract should not have been awarded until the final determination of the fair market price was made. DOT needed maintenance service for the Rest Areas beginning July 1, 1986. Petitioner was notified of the fair market prices for Sites 21-22 and E on June 2, 1986. It is unreasonable to expect that DOT should wait until after the Secretary's review of the propriety of the fair market prices before it awarded the contracts. DOT would be forced to close the Rest Area Sites if the proper maintenance could not have been provided. Additionally, as noted by respondent in a footnote to its brief: "If the Secretary had reversed the decision of the Bureau of Purchases, an appropriate remedy could have been determined. The service purchase contracts did contain a termination for convenience clause upon thirty days' notice to the contractor." Therefore, we find that DOT properly awarded the contract when it did.
Accordingly, respondent's order is affirmed.
ORDER
AND NOW, this 20th day of May, 1988, the order of the Department of General Services in the above-captioned matter is hereby affirmed.
NOTES
[1] The Rest Area maintenance contracts for 17-18, 19-20, and 21-22 were in effect in February, 1986, and expired on June 30, 1986. Petitioner held the contract for the maintenance of Rest Area Site E for 1985-86 but by letter dated February 26, 1986, it informed DOT that in order to continue to provide such service beyond June 30, 1986, a price increase was necessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919299/ | 110 N.J. 321 (1988)
541 A.2d 217
IN THE MATTER OF LOUIS J. NITTI, AN ATTORNEY-AT-LAW.
The Supreme Court of New Jersey.
Argued January 23, 1986.
Decided May 27, 1988.
William R. Wood, Deputy Ethics Counsel, argued the cause on behalf of the Office of Attorney Ethics.
Stephen D. Cuyler argued the cause for respondent (Stryker, Tams & Dill, attorneys).
PER CURIAM.
In In re Goldberg, 109 N.J. 163 (1988), we ordered the disbarment of a compulsive gambler who had knowingly misappropriated client monies to fund his habit. In rejecting respondent Goldberg's contention that his compulsion should serve to mitigate the discipline to be imposed, we found that the record did not "reflect an impairment of respondent's will sufficient to excuse or mitigate the knowing misappropriation of clients' funds." Id. at 172. We there declared that
[o]ur understanding of the compulsive behavior that led to these misappropriations cannot result in "lowering the barriers to the protection we have attempted to give to that portion of the public who are clients, especially clients who entrust their money to lawyers."
[Ibid. (quoting) In re Hein, 104 N.J. 297, 304 (1986).]
*322 Likewise, in In re Lobbe, 110 N.J. 59 (1988), we addressed the difficult problem of the mitigating effect of compulsive gambling on an attorney's admitted misappropriation of clients' funds. Ibid. Repeating our wistful longing for greater insight into the riddle of compulsive behavior ("We wish that we knew more." In re Hein, supra, 104 N.J. at 303), we concluded that
dependent attorneys retain an area of volition sufficient that we cannot distinguish these attorneys from those who yield to the equally human impulse to avert shame, loss of respect, or family suffering.
[Id. 110 N.J. at 66.]
Our opinions in Goldberg and Lobbe pave the way for our decision in this disciplinary proceeding in which we conclude, consistent with the recommendation of the majority of the Disciplinary Review Board (DRB), that respondent, a compulsive gambler who misappropriated clients' funds, must be disbarred.
I
The appeal comes to us on a stipulation of facts. Through that stipulation respondent, Louis Nitti, acknowledges that during 1980 and 1981 he drew gambling markers against his law firm's trust account to cover advances made to him by the Boardwalk Regency Casino in Atlantic City. This pledging of the firm's trust account served to establish a credit line that entitled respondent to borrow gambling funds for a period of up to one month on presentation of a marker, which functioned as a promissory note or check. If the markers were not repaid on time, the casino was authorized to present them for payment to the banks listed on respondent's credit application.
The details of respondent's method of operation appear in a report of an audit of the trust account conducted by a certified public accountant engaged by respondent's firm after ethics charges had been filed. It was Nitti's usual practice, particularly with personal injury cases, to make distributions of the proceeds to the clients on disposition of the matter. At times, however, he would withhold distribution to the firm of the fees *323 and reimbursed costs, accumulate the fees and reimbursed costs, and make distribution of fees and costs at one time covering several matters. The account cards would be duly marked to reflect a disbursement to the client, and generally to reflect the later distribution of the fee and reimbursed costs. As a result of this practice, the trustee account often contained sums that belonged to the firm. In addition, in several instances, Nitti made deposits to the trustee account of his personal funds to "catch up" to his unauthorized disbursements. Notwithstanding respondent's unauthorized disbursements from the trustee account, the balance of the funds on deposit at the end of each month (with certain exceptions) exceeded the funds properly in trust. Consequently, the auditors found no evidence of any instance in which a check drawn from the trustee account was returned for insufficient funds.
The exceptions to which the report refers were based on the auditor's examination of the month-end balances for January 1980 through August 1982. The trustee account was found to be in balance at the end of each month, with the following exceptions:
Trust
Date Account Balance Sums Due Clients
4/81 $ 292.14 $ 8,920.88
12/31/81 $ 1,981.62 $14,747.84
3/31/82 $ 4,966.92 $ 5,503.20
6/30/82 $11,172.02 $17,544.75
7/5/82 $ 7,805.22 $17,782.32
Because respondent had pledged the firm's trust account as security for obtaining a line of credit at the casino, the auditors reviewed the firm's 1979 records to determine if there were any disbursements from the trust account for casino counterchecks. There were none. In 1981 there were ten disbursements from the trust account totalling $14,000, of which $12,000 was verified as disbursements to the casino. Respondent made five deposits during this period for a total of $9,000. In addition to *324 this, there were five other casino counterchecks presented against the account, each for $1,000, which were immediately stopped by respondent. According to the records of the casino, respondent used his line of credit 161 times between January 1980 and May 1982 to borrow a total of $164,000.
Respondent acknowledges, in the stipulation of facts, that the procedure described above constituted a use of client money for his benefit, and that that use of the funds was without the knowledge or authorization of his clients or his law partner.
In addition, respondent admits that he intercepted checks intended for the firm's trust account, endorsed them, and used the proceeds for his personal benefit, again all without the knowledge or authorization of the clients or of his law partner. In one instance Nitti drew a $6,000 trust check to a client, forged the client's endorsement, and diverted the funds to his own use, without knowledge or authorization of client or partner. In no instance did any client experience a loss of funds.
The juggling necessary to sustain the foregoing funding scheme was made possible by the fact that Nitti was responsible for the firm's financial record-keeping, including the business and trust accounts. His mishandling of the trust fund avoided detection because although the firm's accountant conducted an audit of the business account, he did not review the trust account.
II
Respondent acknowledges his knowing misappropriation of trust funds. His argument is not that he should not be disciplined, but rather that his "compulsive" condition should serve to mitigate the discipline to something less severe than disbarment. In support of his position respondent produced the testimony of his treating psychiatrist, Dr. Robert T. Latimer, who confirmed that the Diagnostic Manual of the American Psychiatric Association now lists compulsive gambling the condition for which he was treating Nitti as a separate diagnostic *325 category. Dr. Latimer acknowledged that a compulsive gambler has the ability to distinguish right from wrong and to understand the character and quality of his acts, but added that
[w]hat happens is that you cannot compare the ability of a person under that type of duress to the ability that you and I might have in our daily lives. These are people who know they are doing something wrong but simply cannot control it because of the anxiety which is so intense, the need for this anesthetic of gambling is so strong that a person will drive 125 miles an hour down the Parkway to get there, he realizes he's going to get a ticket for speeding, he cannot stop it. (Footnote omitted).
According to Dr. Latimer the compulsive gambler does not intend to steal but only to borrow and then return the funds. The current state of psychiatric knowledge recognizes that there is no cure for compulsive gambling but that, like alcoholism and drug addiction, the condition can be arrested or neutralized. Dr. Latimer saw Nitti as being in a successful state of arrest. He believed respondent's prognosis to be excellent. In addition, we have been made aware of circumstances in respondent's personal and family background that would test anyone's endurance. Moreover, the series of events recounted above represent Nitti's only brush with the ethics authorities in twenty-six years of practice.
But at bottom the problem here remains as it was in Goldberg and Lobbe (see supra at 321-322): a lawyer who misappropriates clients' funds knowing that that conduct is wrong breaches a public and professional trust that cannot be repaired by discipline less than disbarment. In re Wilson, 81 N.J. 451 (1979).
We continue to recognize, as we did in Goldberg, that "there may be circumstances in which an attorney's loss of competency, comprehension, or will may be of such a magnitude that it would excuse or mitigate conduct that was otherwise knowing and purposeful." Goldberg, supra, 109 N.J. at 168 (citing In re Jacob, 95 N.J. 132, 137 (1984)). This is not such a case, any more than was Goldberg or Lobbe. As the Office of Attorney Ethics points out in its brief,
*326 [w]ith respect to the casino markers respondent kept pace by depositing his own funds to the trust account within a few days. When the markers got ahead of him in April 1981, he stopped payment on them and repaid the casino in regular monthly installments. An examination of [the casino] credit record (Exhibit C-2) shows that respondent kept his open balance well under control by frequent payments of cash or chips. Most significantly, when respondent perceived a problem with the casino markers in April 1981, he ceased all credit activities.
The point, well taken, is that serious as respondent's condition is, it by no means rendered him incapable of controlling his conduct.
Based on the foregoing, we agree with the conclusion of the majority of the DRB that any discipline less than disbarment would depreciate the seriousness of respondent's acts of misconduct. Respondent is therefore disbarred. He is directed to reimburse the Ethics Financial Committee for appropriate administrative costs.
So ordered.
ORDER
It is ORDERED that LOUIS J. NITTI of LIVINGSTON, who was admitted to the bar of this State in 1956, be disbarred, effective immediately; and it is further
ORDERED that LOUIS J. NITTI reimburse the Ethics Financial Committee for appropriate administrative costs; and it is further
ORDERED that LOUIS J. NITTI be permanently restrained and enjoined from practicing law; and it is further
ORDERED that LOUIS J. NITTI comply with Administrative Guideline Number 23 of the Office of Attorney Ethics dealing with disbarred attorneys.
For disbarment Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 7.
Opposed None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919236/ | 224 N.J. Super. 726 (1988)
541 A.2d 292
MARCY G. DECKER, INDIVIDUALLY; MARCY G. DECKER, AS CUSTODIAL PARENT OF JACKSON T. DECKER; AND CHARLOTTE GOLDBERG, PLAINTIFFS-APPELLANTS,
v.
THE PRINCETON PACKET, INC., A DELAWARE CORPORATION; JOHN DOE, WHOSE NAME IS FICTITIOUS; AND ABC CORPORATION, WHOSE IDENTITY IS UNKNOWN, JOINTLY, INDIVIDUALLY OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued April 26, 1988.
Decided May 10, 1988.
*727 Before Judges PRESSLER, BILDER and SKILLMAN.
Stephen N. Allen argued the cause for appellants (Robichaud and Associates, attorneys; Louise M. Robichaud, on the brief).
Gerard H. Hanson argued the cause for respondent The Princeton Packet, Inc. (Brener, Wallack & Hill, attorneys; Marilyn S. Silvia, on the brief).
The opinion of the court was delivered by BILDER, J.A.D.
On February 15, 1985 defendant newspaper, The Princeton Packet, mistakenly printed an obituary announcing the *728 death of plaintiff Marcy Decker.[1] It promptly printed a correction and apology. Plaintiff sued, alleging libel, negligent or intentional infliction of emotional distress and gross negligence. On defendant's motion for summary judgment, the trial judge dismissed the complaint, holding that no action could lie. We agree.
While we appreciate the shock plaintiff may have felt in reading of her death, it was necessarily quickly dissipated by her certain knowledge the announcement was premature. That defendant made a mistake is patent but this is not sufficient to give rise to a claim for money damages. The announcement itself contained no defamatory material. Other than incorrectly stating that plaintiff had died suddenly, the obituary was accurate and not uncomplimentary.
Although plaintiff's claim may be a matter of first impression in this state, the issue is not novel. To the contrary, the general rule is well established that the mere publication of an improvident obituary is not defamatory in the absence of additional material of a defamatory nature published in connection therewith. See Prosser and Keaton, The Law of Torts, § 111 at 774 (5th Ed. 1984); O'Neil v. Edmonds, 157 F. Supp. 649, 651 (E.D.Va. 1958); cf. Estill v. Hearst Publishing Co., 186 F.2d 1017 (7th Cir.1951) where the death announcement was accompanied by reports of surrounding circumstances of a defamatory nature. Although we have not heretofore specifically spoken to the narrow question of whether a premature obituary is per se libelous, we have clearly embraced the rule that the question of whether published material is reasonably susceptible of a defamatory meaning is a question of law for the court. See Karnell v. Campbell, 206 N.J. Super. 81, 88 (App.Div. 1985). The trial judge's conclusion that the mere *729 publication of a false notice of death is not defamatory and cannot support any claims for libel was correct.
Nor can plaintiff recover by the use of a different label. At oral argument plaintiff conceded she could not prove an intentional infliction of harm. As to negligent infliction of emotional distress, we agree with the trial judge that this case does not fall within those limited exceptions in which recovery is permitted. See Portee v. Jaffee, 84 N.J. 88, 101 (1980); see also Tumminello v. Bergen Evening Record, Inc., 454 F. Supp. 1156, 1158-1160 (DCNJ 1978).
Affirmed.
NOTES
[1] For convenience we refer to Marcy Decker as the plaintiff. Although claims were also asserted on behalf of her child and by her mother, all the arguments relate to Ms. Decker's claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548456/ | 9 B.R. 864 (1981)
In re Thomas J. BERANEK, a/k/a Tom Beranek, a/k/a Thomas Beranek, Debtor.
Bankruptcy No. 80 B 04671 C.
United States Bankruptcy Court, D. Colorado.
March 20, 1981.
Brian A. Magoon, Denver, Colo., for Chrysler.
W. Robert Montgomery, Denver, Colo., for debtor.
FINDINGS, CONCLUSIONS AND ORDER ON NEW CONFIRMATION HEARING TO DETERMINE VALUE OF SECURED CLAIM
PATRICIA ANN CLARK, Bankruptcy Judge.
The matter before the Court is the new confirmation hearing of Thomas J. Beranek, the Debtor. This hearing is for the purpose of admitting additional evidence, previously excluded, on the issue of the value of a secured claim. The creditor, Chrysler Credit Corporation (Chrysler), contends that the value of a vehicle securing a debt owed to it by the Debtor is the amount it could get under a repurchase agreement. The Debtor contends that the repurchase agreement is not conclusive evidence of the value of the collateral. A hearing on the matter was held on March 16, 1981, at which Brian A. Magoon represented Chrysler and W. Robert Montgomery represented the Debtor.
The facts are as follows. On October 3, 1979, the Debtor purchased a 1979 Dodge van from Cherry Creek Dodge, Inc., and signed a retail installment contract. As part of the retail installment contract, the Debtor acknowledged that the contract would be assigned to Chrysler. It later was. In this assignment Cherry Creek Dodge, the dealer, agrees that if Chrysler repossesses the vehicle within a certain time after the Debtor defaults on an installment, the dealer will pay to Chrysler the unpaid balance of the contract regardless of the condition of the motor vehicle. This is commonly called a "repurchase" agreement. The unpaid balance which Chrysler asserts it can receive from the dealer is $5,957.74. The Court found from the evidence at the prior confirmation hearing that the vehicle had a value of $4,250.00. The issue now *865 before the Court is whether the inclusion into evidence of the repurchase agreement between Chrysler and Cherry Creek Dodge alters the Court's prior determination of value.
Under the new Bankruptcy Code, a Chapter 13 debtor can force a creditor to retain its lien if the debtor gives the creditor the "value" of its collateral (11 U.S.C. § 1325(a)(5)). "Value" is to be determined in accordance with the provisions of Section 506(a) of the Code (11 U.S.C. § 506(a)). In relevant part, Section 506(a) reads:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property. . . . Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. (emphasis supplied)
The legislative history to Section 506(a) establishes no clear method for determining value. The House Judiciary Committee's comment to Section 506(a) reads in part:
"Value" does not necessarily contemplate forced sale or liquidation value of the collateral; nor does it always imply a full going concern value. Courts will have to determine value on a case-by-case basis, taking into account the facts of each case and the competing interests in the case. Report of the Committee on the Judiciary, House of Representatives, to Accompany H.R. 8200, H.R.Rep. No. 95-595, 95th Cong., 1st Sess., p. 356 (1977), U.S. Code Cong. & Admin.News 1978, 5963, 6312.
The Senate Judiciary Committee's comment reads in part:
While courts will have to determine value on a case-by-case basis, the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property.
The legislative history clearly indicates that the concept of value is to be flexible. Courts are to make case-by-case decisions in light of the purpose of the valuation and the proposed disposition or use of the collateral.
In the instant case, the collateral in which the estate has an interest and in which the creditor has a lien is a 1979 Dodge van. The purpose for valuing this vehicle is that the Debtor wishes to exercise his right under Section 1325(a)(5) to keep the vehicle and force the creditor to accept its value. The Debtor proposes to use the vehicle for work and other activities.
The issue of value was raised at the first confirmation hearing. There, testimony was presented that the vehicle in an open market was worth between $3,500.00 and $4,350.00, depending on the method of valuation the parties used. Chrysler claims, however, that since it could get $5,957.74 for the vehicle under its repurchase contract with the dealer, this determines the value of the vehicle. Chrysler assumes that the value of its contract with the dealer is the value of the vehicle. This simply is not so. The contract rights which Chrysler has with the dealer are a separate matter and do not involve either the estate or the Debtor.
A literal reading of Section 506 supports the conclusion that the value of the collateral is to be determined by reference to the worth of the collateral in an open market. Section 506 speaks of the creditor's interest in the estate's interest in the property on which the creditor has a lien. The property here is the vehicle, and not the contract. The extent of the value of the estate's interest is the value of the vehicle. The estate could not force a sale on the dealer, so the forced sale price could not be the value of the vehicle to the estate. The creditor's interest is dependent on the estate's interest, according to Section 506. Thus, the creditor cannot turn to a private market to which the estate has no access in order to determine value. As one Bankruptcy Judge so aptly put it:
*866 The term "value" as used in § 506(a) to determine the "creditor's interest in the estate's interest" contemplates current fair market value of the particular collateral. Such value is determined in the marketplace normally applicable to that particular type of property in which the estate has an interest and on which the creditor has a lien. The Section 506(a) value of such property cannot be determined by some pre-arranged standard or basis in an agreement between the claimant and its guarantor or insuror which has nothing to do with what the value in a free market where values of such types of property are customarily determined. Chrysler Credit Corporation v. Cooper, 7 B.R. 537, 7 B.C.D. 24, 25-26 (N.D.Ga. 1980).
Chrysler also makes the argument that if the Debtor were liquidated in a Chapter 7 proceeding, Chrysler would receive more than it would in this Chapter 13 proceeding if this Court does not accept its version of value. This is because part of Chrysler's claim would be considered unsecured. Of course, Section 1325(a)(4) of the Code states that a plan can be confirmed only if the value given to an unsecured creditor is not less than the amount that would be paid on such claim if the estate of the Debtor were liquidated under Chapter 7.
Chrysler would not get anything more if the estate of the Debtor were liquidated under Chapter 7. In a Chapter 7 proceeding, the Debtor could surrender the collateral to the creditor. If that happened here, Chrysler would get a vehicle from the estate nothing more. Once this transaction was completed, Chrysler could proceed in a subsequent transaction to pursue its contract rights with the dealer. However, this is of no import to the estate and is not a bankruptcy matter. The Debtor, instead of surrendering the collateral, could choose to redeem it under Section 722 of the Code (11 U.S.C. § 722). The Debtor can do this "by paying the holder of [the] lien the amount of the allowed secured claim of such holder that is secured by such lien." (emphasis supplied) The "allowed secured claim" is determined in accordance with Section 506(a). Consequently, we are back to a determination of value. For the reasons stated above, the amount Chrysler would receive would be determined by reference to an open market. Therefore, Chrysler would receive no less in a Chapter 13 proceeding than it would if the estate of the Debtor were liquidated in a Chapter 7 proceeding.
Because of the foregoing, the Court rejects "repurchase value" as conclusive evidence of value. In so doing, the Court recognizes that it is at variance with the opinion rendered by Judge Keller of this Court in In re Stumbo, 7 B.R. 939 (Bkrtcy. Colo.1981) and respectfully disagrees with it.
ORDERED that the value of the 1979 Dodge van as determined at the prior confirmation hearing remains intact. This value is $4,250.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/533418/ | 891 F.2d 293
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.127.814 ACRES OF LAND, MORE OR LESS, LOCATED IN WOODFORDCOUNTY, KENTUCKY, Defendant,andFEDERAL LAND BANK OF LOUISVILLE, Plaintiff,v.ESTATE OF Matt JONES; Margaret Jones, Defendants-Appellants,United Tobacco Warehouse Company, Inc., et al., Defendants.
No. 89-6395.
United States Court of Appeals, Sixth Circuit.
Dec. 11, 1989.
Before KEITH, NATHANIEL R. JONES and BOGGS, Circuit Judges.
ORDER
1
The lien claimants and defendants, Estate of Matt Jones and Margaret Jones, appeal an order and judgment in two consolidated actions determining rights in certain real property. The order granted summary judgment against them, but delayed entry of final judgment pending advice from counsel as to 1) disposition of the defendant property, and 2) whether the mortgagees have reached a stipulation as to lien priorities. This order was entered on August 31, 1989. On September 12, a timely motion to alter, amend or vacate a portion of the order and judgment was made by the plaintiff, the Federal Land Bank of Louisville. On November 1, while that motion was still pending and 62 days after entry of the August 31 judgment, the lien claimants filed a notice of appeal. The motion remains pending.
2
This Court is without jurisdiction in this appeal. The district court specifically reserved entry of final judgment pending resolution of several issues. Further, a notice of appeal filed prior to the disposition of a timely motion to alter or amend the judgment is of no effect. Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam); Peake v. First National Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir.1983). Finally, if the order of August 31 were final and appealable, the notice of appeal was filed after the 60 days in which this appeal could be brought. See Fed.R.App.P. 4(a)(1). A timely notice of appeal is a jurisdictional prerequisite which this Court cannot waive. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978).
3
It is therefore ORDERED that this appeal is dismissed sua sponte without prejudice to the parties' right to perfect a timely appeal after disposition of the motion to alter or amend and/or upon entry of final judgment. Rule 9(b), Local Rules of the Sixth Circuit. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1589822/ | 270 S.W.3d 617 (2008)
Marvin Jauer SOEFJE, Jr., Appellant,
v.
Peggy Christine Soefje JONES, as Trustee of E. Susan Soefje, Appellee.
No. 04-07-00347-CV.
Court of Appeals of Texas, San Antonio.
June 18, 2008.
Rehearing Overruled October 6, 2008.
*621 James S. Frost, Law Office of James S. Frost, Seguin, TX, for Appellant.
John P. Bender, Law Office of John Phillip, Austin, TX, for Appellee.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
OPINION
Opinion by REBECCA SIMMONS, Justice.
This case stems from a will and a trust through which the personal and real property belonging to Susan Soefje ("Soefje") would be distributed to her daughter, Peggy Soefje ("Peggy"), and her son, Marvin Soefje ("Marvin"), upon her death. The case proceeded on two tracksone in which the will was probated and one involving the trust. The district court properly held that most of Marvin's claims against Peggy are barred because of the preclusive effect of the probate proceedings, and we affirm its judgment, in part. But because the district court misconstrued the trust, we also reverse, in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
This case wound its way through a myriad of courts: county, district, and appellate. *622 Each court crafted a decision and together these decisions ultimately led to the case before us. As a consequence, considerable time is spent dissecting those decisions and the problems they generated.
A. The Will and Trust
In 1996, Susan Soefje executed a trust agreement that provided, among other things, for specific distributions of all her personal and real property to her children, Marvin and Peggy, upon her death. On the same day Soefje signed the trust agreement, she also executed a will leaving her entire estate upon her death to the trust.
The trust allocated Soefje's real property in Guadalupe County, on the south side of Interstate 10 ("I-10") to Peggy and the property on the north side of I-10 to Marvin. Before her death in 2002, Soefje executed a "third amendment" to the trust that "added" a paragraph by which Peggy would receive two tracts of land north of I-10. The parties dispute the effect of this amendment. Peggy claims the amendment revoked the entire gift in the original trust and, thus, she should receive the two tracts specifically mentioned plus, under the trust's residuary clause, half of the remaining property north of I-10. Marvin, on the other hand, asserts the amendment made specific distributions to Peggy but left intact the balance of the trust's gift of all real property north of I-10 to Marvin.
B. The Trust Lawsuit in District Court and the Will Lawsuit in County Court
Less than three months after Soefje died, Marvin filed suit in district court against Peggy, in her capacity as trustee, seeking an accounting and Peggy's removal as trustee. At that time, no party had offered Soefje's will for probate.
In November 2002, Marvin applied, in the county court, to have Soefje's will admitted for probate. The will named Peggy and Marvin, in that order, as independent executors. Marvin alleged that Peggy was disqualified as an independent executor because she engaged in numerous acts of self-dealing and/or fraud in connection with Soefje's money and assets. According to Marvin, these acts gave rise to claims by the estate against Peggy, individually, that Peggy, as executor, would never bring. Accordingly, Marvin sought to be appointed sole executor and requested the issuance of letters testamentary. Peggy countered with an application to have the will probated as a muniment of title, asserting there was no need for administration of the will.
C. Consolidation of the Lawsuits in District Court
In April 2003, based on the mistaken belief by the parties, the district court, and the county court that the probate case and the trust case could be consolidated in the district court, the district court entered a consolidation order. In the course of litigating all probate and trust issues, the parties announced their agreement to certain matters, including that a third party trustee/executor would be appointed to conduct a complete accounting of the estate and trust back to January 2001.
A few months later, in September 2003, Peggy filed a motion to approve her final accounting and for the final distribution and termination of the trust. During the hearing on this motion, Peggy argued the accounting was proper and complete and that Marvin failed to file any specific objections to the accounting. Marvin contended that information about certain transactions was missing and that, in any event, a forensic accountant was needed to review the accounting.
*623 PROCEDURAL BACKGROUND
A. Probate Matters to County Court
Before any of the issues were resolved, however, the parties filed an agreed motion to vacate the consolidation order based on the trial court's lack of jurisdiction, and the probate matter was transferred back to the county court. The district court, however, retained jurisdiction over the trust matter.
In November 2004, the county court conducted an evidentiary hearing on the competing applications to probate Soefje's will (Peggy's application to probate the will as a muniment of title and Marvin's application to probate alleging the need for an administration). During this hearing, the parties litigated whether Peggy committed fraud upon the estate through criminal acts of misapplication of funds and should therefore be disqualified to serve as executor. Both parties examined witnesses and presented evidence.
B. The County Court Judgment
The county court later signed an order probating the will as a muniment of title. This order included the statements that no administration of the estate is necessary and that Peggy "is qualified and not disqualified to serve [as Independent Executor]." The county court also rendered a separate final judgment that resolved the probate matters, re-consolidated the trust and probate proceedings, and disposed of all trust matters, including the approval of the accounting, the termination of the trust, and construction of the trust instruments' distribution of real property. The judgment further authorized Peggy, as trustee, to file deeds distributing Soefje's real property such that Peggy and Marvin each took half of the property north of I-10 that was not specifically distributed to Peggy in the third amendment to the trust.
Based on the county court's judgment, Peggy filed a motion in the district court requesting entry of a final judgment. Marvin was not present at the hearing on this motion and subsequently filed a motion for new trial based on jurisdictional issues and his misunderstanding that he had received a continuance of the hearing on entry of judgment. The district court granted the motion for new trial.
C. Opinions of the Fourth Court of Appeals
Marvin pursued appellate relief from the county court's judgment through two avenues: (1) a petition for writ of mandamus alleging that the county court abused its discretion based on lack of jurisdiction; and (2) a notice of appeal from the judgment.
1. The Mandamus Petition
In the mandamus action, this Court held that the county court lacked jurisdiction over trust proceedings and conditionally granted mandamus, "but only with regard to those portions of the county court['s].. . judgment that address trust matters." In re Soefje, No. 04-05-00140-CV, 2005 WL 1277754, at *4 (Tex.App.-San Antonio June 1, 2005, orig. proceeding). The opinion specifically noted the county court lacked jurisdiction over the approval of the trust accounting. Mandamus relief was granted as to any portion of the county court's judgment that "address[ed] trust matters." Id. The county court subsequently signed an order withdrawing and declaring null and void for lack of jurisdiction "any and all portions" of its judgment addressing trust matters. The order did not further specify which portions of the judgment were withdrawn and void.
2. The Direct Appeal
*624 In Marvin's direct appeal, this Court affirmed the county court's judgment probating Soefje's will as a muniment of title. In re Estate of Soefje, No. 04-05-00030-CV, 2006 WL 927360, at *3 (Tex.App.-San Antonio April 12, 2006, no pet.). The Court also held that, because the county court, after the mandamus, declared the portion of the judgment authorizing Peggy, as trustee, to convey the tracts of land to herself was null and void, Marvin's issue with regard to such authorization was dismissed as moot. Id.
D. Post-Appellate Litigation in the Trust Lawsuit
In the district court, the parties hotly disputed what issues remained to be litigated regarding the trust. During several pre-trial hearings, Marvin argued that the county court judgment's only effect was that the will was probated as a muniment of title and that the two appellate opinions voided the rest of the county court judgment. Peggy, on the other hand, argued that the county court proceedings disposed of the majority of the case and the only remaining issue before the district court was to render judgment for Peggy on all of Marvin's claims.
Marvin subsequently amended his district court pleadings to include claims against Peggy for breach of fiduciary duty, constructive fraud, conversion, fraud, and fraud in the inducement (the "money damage claims"). He also sought a declaratory judgment to construe the trust instruments to convey all of Soefje's real property north of I-10 to him, with the exception of the two specific parcels identified in the third amendment. Finally, he sought declaratory relief construing the power of attorney and the signature card agreement under which Peggy had made the transactions that form the basis for Marvin's money damage claims. Peggy filed an answer and a supplemental answer that included various pleas and motions, as well as numerous affirmative defenses. Among these was a "plea in abatement" urging that the county court proceedings and judgment were dispositive of Marvin's money damage claims. Marvin then filed a motion for partial summary judgment. All pre-trial matters for both parties were set for hearing approximately three weeks prior to trial.
E. The District Court's Judgment
At the conclusion of the hearing, the district court declared its intent to enter a final judgment for Peggy. The court stated that the county court's judgment disposed of the issue of whether Peggy had committed fraud or engaged in self-dealing in Peggy's favor and that Marvin had nothing left as a basis for his lawsuit.
The district court entered a final judgment recognizing that the county court's judgment resolved all issues except "trust issues," approving the trust accounting prepared by Peggy, terminating the trust, and "confirm[ing] and approv[ing]" the deeds filed by Peggy after the county court initially rendered judgment. The judgment also "incorporated" and "adopt[ed]" the county court's initial judgment into the district court's judgment.
Marvin now appeals the district court's judgment. Peggy brings a cross-point claiming that Marvin violated the trust's "No-Contest Clause" thereby forfeiting any benefits received under the trust.
STANDARD OF REVIEW
The judgment of the district court dismisses Marvin's money damage claims based on the court's apparent conclusion that those claims were precluded as a matter of law by the county court proceedings. We review this issue de novo. See Karm v. City of Castroville, 219 *625 S.W.3d 61, 63 (Tex.App.-San Antonio 2006, no pet.). Construction of a trust is also a question of law which we review de novo. See, e.g., Eckels v. Davis, 111 S.W.3d 687, 694 (Tex.App.-Fort Worth 2003, pet. denied).
MARVIN'S RIGHT TO BE HEARD
Marvin asserts that the district court's rendition of judgment against him, by way of a pre-trial hearing and without a jury trial, violated his due process rights. The United States Constitution provides that a person shall not be deprived of life, liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1; see also TEX. CONST. art. 1, § 19. "Fundamental to the concept of due process is the right to be heard." Jordan v. Jordan, 653 S.W.2d 356, 358 (Tex.App.-San Antonio 1983, no writ) (citing Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). The right to be heard includes the right to a full and fair hearing before a court having jurisdiction over the matter. Id. It also entails the right to introduce evidence and to examine witnesses. Id. A party's right to be heard further includes the right to have judgment rendered only after a trial on the merits. Id.
However, a party's right to due process does not mean that a case may never be disposed of before a trial. Walden v. Affiliated Computer Sys., Inc., 97 S.W.3d 303, 322-23 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 355 (Tex.App.-San Antonio 1999, pet. denied). While a motion for summary judgment is the preferred method for pre-trial disposal of a case in its entirety, a judgment may be rendered by way of a pre-trial hearing in limited circumstances where the record unmistakably demonstrates that there were only legal issues to decide and the parties had notice that the court would consider final disposition during the pre-trial hearings. Walden, 97 S.W.3d at 323 (holding that Texas Rule of Civil Procedure 166 authorizes a trial court to use the pre-trial conference to determine what fact issues remain and to decide purely legal matters); Dosohs I, 2 S.W.3d at 355; Unitrust, Inc. v. Jet Fleet Corp., 673 S.W.2d 619, 623 (Tex.App.-Dallas 1984, no writ).
We conclude that the district court did not err in using the pre-trial hearing to decide legal issues involving no fact disputes. The probate proceedings included an evidentiary hearing in the county court and two appellate decisions. The parties disputed what remained to be tried in the district court. Under these circumstances, the district court properly used the pre-trial hearings to sort through what fact issues remained and whether it could dispose of any, or all, of Marvin's claims on purely legal grounds. Dosohs I, 2 S.W.3d at 355 (trial court did not err in dismissing entire case at pre-trial hearing where viability of plaintiff's claims could be resolved as a purely legal issue); see also Walden, 97 S.W.3d at 323.
Whether the court correctly disposed of Marvin's claims is a different question, to which we now turn.
JUDICIAL NOTICE
Most of the issues in this case involve the question of what the county court and appellate court proceedings resolved and what remained to be determined in the district court. Marvin contends that, because the court could not properly take judicial notice of the county court proceedings, the district court's judgment is not supported by any evidence.
The general rule is that a trial court may not take judicial notice of testimony from a previous proceeding unless *626 the testimony is properly authenticated and admitted into evidence. Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539-40 (Tex.App.-San Antonio 2004, pet. denied); Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex.App.-Corpus Christi 1996, writ denied). It is also generally true that pleadings are not summary judgment evidence and that simply attaching a document to a pleading does not make the document admissible as evidence or dispense with proper foundational requirements. Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 724-25 (Tex.App.-San Antonio 2004, no pet.).
However, court records, including testimony from other cases in other courts, may be acceptable summary judgment evidence. Austin Bldg. Co. v. Nat'l Union Fire Ins. Co., 432 S.W.2d 697, 698-99 (Tex. 1968); see also Villarreal v. Laredo Nat'l Bank, 677 S.W.2d 600, 605 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.) ("The statement of facts and documentary evidence developed in a prior trial can properly be considered by the trial court in ruling upon a motion for summary judgment."); Mowbray v. Avery, 76 S.W.3d 663, 689 (Tex. App.-Corpus Christi 2002, pet. denied) ("Generally, a court may take judicial notice of records of its own or another court's records ... when they are provided ... to the court in a form acceptable for summary judgment proceedings, i.e. either sworn to or certified.").
Here, the record reflects that Peggy attached certified copies of records from the probate proceeding as part of her live pleading in the district court. Marvin neither filed an objection nor specially excepted to that pleading. Moreover, Marvin filed numerous pleadings in the district court to which he attached portions of the county court record and liberally cites the record from the probate proceedings in his briefing in this appeal.
The issue of the propriety of judicial notice does not turn in this case on the fact that Peggy asked the court to notice the record of the probate proceedings as part of her live pleading as opposed to a summary judgment motion or a trial on the merits. In this case, the parties hotly disputed the effect of the county court proceedings on what issues remained to be tried in the district court. Not surprisingly, both parties placed different parts of the county court record before the district court. Under these circumstances, the district court did not err in judicially noticing certified pleadings, documents, briefs, and testimony from the county court litigation. Murillo v. Valley Coca-Cola Bottling Co., 895 S.W.2d 758, 762 (Tex.App.-Corpus Christi 1995, no writ); Villarreal, 677 S.W.2d at 605.
PRECLUSIVE EFFECT OF COUNTY COURT JUDGMENTCOLLATERAL ESTOPPEL
Peggy argues that the district court properly dismissed Marvin's claims because they are precluded as a matter of law by the county court proceedings. Marvin asserts that the county court proceedings should have no preclusive effect on the claims he raised in the district court.
Under the doctrine of collateral estoppel, a party asserting the preclusive effect of a prior proceeding must establish: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were in an adversarial posture in the first action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994); see also Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 847 (Tex.App.-San Antonio 1997, pet. denied) (noting that "the doctrine [of collateral *627 estoppel] extends only to those matters ... that were either expressly determined or necessarily determined in an adjudication").
Marvin and Peggy were in an adversarial posture in the county court proceedings. Thus, if they fully and fairly litigated a fact essential to the county court's judgment, the doctrine of collateral estoppel bars relitigation of that fact issue in the district court proceeding and any claim dependent on a contrary finding on that fact issue fails as a matter of law. Tex. Dep't of Public Safety v. Petta, 44 S.W.3d 575, 579-80 (Tex.2001).
A. Money Damage Claims
Marvin challenges the district court's dismissal of his money damage claims. He asserts in this appeal that the probate court's finding that Peggy was not disqualified was immaterial to the order admitting the will to probate as a muniment of title. We construe this as an argument that the doctrine of collateral estoppel does not bar his claims in the district court because the facts litigated in the county court proceeding were not "essential" to the county court's order probating the will as a muniment of title.
We assume Marvin is correct that the county court did not need to reach the issue of whether Peggy was disqualified to serve as independent executor to have properly resolved the question of whether to probate the will as a muniment of title. However, in the county court proceeding, Marvin's pleadings alleged that, because Peggy misappropriated Soefje's property, an administration of Soefje's estate was necessary. Marvin contested Peggy's application to probate the will as a muniment of title on the same grounds, that an administration was necessary because of the same alleged misconduct. The county court conducted an evidentiary hearing which consisted, almost exclusively, of evidence and testimony regarding the propriety of Peggy's various transactions. Marvin thus had a full and fair opportunity to litigate his claim that an administration of the estate was necessary because of Peggy's alleged misconduct.
The county court's order probating the will as a muniment of title stated "that there is no fact or circumstance creating a need for administration; that there exists no necessity of administration."[1] The county court, in rejecting Marvin's application to probate the will and granting Peggy's application to probate the will as a muniment of title, necessarily determined that Peggy committed no acts that would warrant the necessity of an administration. Marvin is estopped from litigating in the district court whether Peggy committed the same acts, which now form the basis for Marvin's money damage claims. See Petta, 44 S.W.3d at 579-80 (holding that collateral estoppel barred plaintiff's claims against police officer because fact essential to those claims was decided against plaintiff in prior criminal action). Therefore, the portion of the district court's order dismissing Marvin's money damage claims is affirmed.
B. Declaratory Relief Regarding Power of Attorney and Signature Card Agreement
Marvin also requested declaratory relief construing a "springing power of attorney" and a bank signature card agreement between Soefje and Peggy. Marvin sought this declaration as support for his contention *628 that neither of these agreements authorized Peggy to make the transactions that were litigated in the county court proceeding. Because of the preclusive effect of the county court judgment, the district court did not err in denying Marvin's request for declaratory relief regarding these agreements.
C. Accounting
Marvin argues that the county court judgment cannot be given preclusive effect as to the trust accounting because the county court did not have jurisdiction to approve a trust accounting. Peggy agrees that the county court could not approve an accounting as to "trust matters."[2] Nonetheless, she asserts that the county court judgment still has preclusive effect as to Marvin's claims regarding the trust accounting because those claims are predicated entirely on his allegations of misconduct by Peggy.
As a beneficiary under the trust, Marvin was entitled to "a written statement of accounts covering all transactions since the last accounting or since the creation of the trust, whichever is later." Acts 1983, 68th Leg., ch. 567, art. 2, § 2 (current version at TEX. PROP.CODE ANN. § 113.151(a) (Vernon 2007)). However, all of Marvin's contentions about the impropriety of Peggy's final accounting revolve around Peggy's alleged misconduct. Because collateral estoppel bars Marvin from re-litigating the alleged misconduct, the district court did not err in approving the final accounting.
THE TRUST AND THIRD AMENDMENT
Marvin's motion for summary judgment sought a declaration that the trust and its third amendment unambiguously required distribution of all of Soefje's real property north of I-10, except those parcels expressly gifted to Peggy in the third amendment. Peggy claimed that Soefje's clear intent in the third amendment was to revoke the distribution in the original trust entirely and to cause those portions of the real property north of I-10, not mentioned in the third amendment, to fall into the trust's residuary clause. Under that clause, any property left over following distribution of property under the trust's particular gifts would be distributed as if Soefje died intestate. Under such an interpretation, Peggy would receive half of the property at issue and Marvin the other half.
A. Construction of the Trust
Construction of an unambiguous trust is a matter of law for the court. See Eckels, 111 S.W.3d at 694. In construing a trust, we are to ascertain the intent of the grantor from the language in the four corners of the instrument. Id. If the words in the trust are unambiguous, we do not go beyond them to find the grantor's intent. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000). Our focus is not what the grantor may have intended to write, but what words are actually used in the trust instrument. Id. If the words are unambiguous, extrinsic evidence is not admissible to show that the grantor had some other intent than that expressed in the clear words of the trust. Id.
In construing a trust, we must, wherever possible, give effect to all provisions such that no provision is rendered meaningless. Eckels, 111 S.W.3d at 694. Where the grantor executes an amendment to a trust, the trust is not revoked *629 unless the words used in the amendment clearly show the grantor's intent to revoke the trust. See Harkins v. Crews, 907 S.W.2d 51, 58-59 (Tex.App.-San Antonio 1995, writ denied) (will); Harris v. Strawbridge, 330 S.W.2d 911, 918 (Tex.Civ.App.-Houston 1959, writ ref'd n.r.e.) (trust). An intent to revoke the trust can be evidenced by reason of such inconsistent disposition of property between the trust and the amendment that both cannot stand. Anderson v. Dubel, 580 S.W.2d 404, 409 (Tex.Civ.App.-San Antonio 1979, writ ref'd n.r.e.); Harris, 330 S.W.2d at 918. In that circumstance, the amendment revokes the trust by implication, but only to the extent of inconsistency. Anderson, 580 S.W.2d at 409; Harris, 330 S.W.2d at 918. Revocation by implication is disfavored, but if the intent to revoke, whether in part or in whole, is manifested by the clear language of the amendment, such intent must be given effect even though no express language of revocation is used. Harris, 330 S.W.2d at 918. If we determine that the amendment revoked the trust by implication, we must give effect both to every part of the amendment and to every remaining part, if any, of the trust. Anderson, 580 S.W.2d at 409-10.
Here, the trust, in section 1(a) of Article Six, makes the following "specific distributions of real estate" upon Soefje's death:
The Trustee shall make the following distributions of real estate to the named beneficiaries listed below:
1. Distribution of Real Estate to PEGGY CHRISTINE SOEFJE
The following real estate shall be distributed to PEGGY CHRISTINE SOEFJE, free of the trust:
All real estate south of Interstate 10 recorded in Volume 683, page 801, of the Official Records of Guadalupe County, Texas.
....
3. Distribution of Real Estate to MARVIN JAUER SOEFJE, JR.
The following real estate shall be distributed to MARVIN JAUER SOEFJE, JR., free of the trust:
All real estate north of Interstate 10, recorded in Volume 683, Page 801 of the Official Records of Guadalupe County, Texas.
The third amendment to the trust declares that "[b]y this amendment, Trustor [Soefje] desires to modify and amend the existing trust agreement...." Section 3 of the third amendment states:
The following Paragraph b. shall be added to Article Six Section 1, and shall read as follows:
b. Specific Distribution of Real Estate to PEGGY CHRISTINE SOEFJE
The Trustee shall make the following distributions of real estate to the named beneficiaries listed below:
1. Distribution of Real Estate to PEGGY CHRISTINE SOEFJE
The following real estate shall be distributed to PEGGY CHRISTINE SOEFJE, free of the trust:
5.00 acres, more or less, J.D. Clements Survey, Abstract 11, Guadalupe County, Texas, identified under Guadalupe County Appraisal District, Seguin, Texas, Account No. 2G0011-0000-36410-0-00; and
125.77 acres, more or less, J.D. Clements Survey, Abstract 11, Guadalupe County, Texas, identified under Guadalupe County Appraisal District, Seguin, Texas, Account No. 2G0011-0000-36400-0-00.
Each of these are more fully described in Distribution Deed from Elsie Mae Susan Soefje as Independent Executor of the Estate of Marvin *630 Jauer Soefje, Sr. to Elsie Mae Susan Soefje executed March 6, 1996, and filed of record in the Deed and Plat Records of Guadalupe County, Texas.
The parties agree that Soefje owned three tracts of land located north of I-10, and that the two tracts described in the third amendment are part of the land north of I-10. Marvin does not dispute that, under the clear language of the third amendment, Peggy is to receive these two tracts. That is, Marvin concedes that the third amendment is inconsistent with the trust as to those two tracts, and that the amendment revokes by implication the trust's distribution of those tracts to Marvin. See Anderson, 580 S.W.2d at 409; Harris, 330 S.W.2d at 918.
The issue is whether the third amendment revoked the entire distribution of real property to Marvin in the trust. We conclude that, as a matter of law, the third amendment and the trust are unambiguous and that they are inconsistent only as to the real estate specifically distributed to Peggy in the amendment. The third amendment clearly and unambiguously states that "[Soefje] desires to modify and amend the existing trust agreement" and that by this amendment, "[t]he following Paragraph b. shall be added to Article Six Section 1." (emphasis added) This is not the language of revocation.
To the contrary, by specifying that a paragraph 1(b) "shall be added" to section 6 article 1, which already has a paragraph 1(a) but no paragraph 1(b), the third amendment unambiguously shows the intent that the original distribution in paragraph 1(a) remains intact where not inconsistent with paragraph 1(b). See Jim Wells County Appraisal Dist. v. Cameron Village, Ltd., 238 S.W.3d 769, 774 (Tex. App.-San Antonio 2007, pet. filed) (construing the plain meaning of phrase "in addition to" as used in a statute). Thus, pursuant to the unambiguous language in the trust and the third amendment, Marvin is entitled to a declaration that the remaining property north of I-10 should be distributed to him.
We hold that the district court erred in concluding that the third amendment revoked the distribution in the trust in its entirety. Accordingly, we reverse those portions of the district court's judgment that are based on its construction of the trust and remand for further proceedings.[3]
B. Termination of the Trust
Marvin does not specifically challenge that part of the district court's judgment by which the trust was terminated. He does, however, generally request that the judgment be reversed "on all issues," and asks to be appointed as trustee. This is sufficient to raise the issue in this appeal. TEX.R.APP. P. 38.1(e).
The trust requires the trustee to distribute Soefje's real property immediately upon her death and her personal property "promptly." The trust does not specify a particular date or event for its termination. Where the trust does not specify the trustor's clear intent for a different termination date, the Texas Property Code allows for judicial termination of a trust on a petition by a trustee or a beneficiary if "the purposes of the trust have been fulfilled." Acts 1985, 69th Leg., ch. 149, § 1 (current version at TEX. PROP.CODE ANN. § 112.054(a)(1) (Vernon 2007)); see Frost Nat'l Bank v. Newton, 554 S.W.2d 149, 154 (Tex.1977) (courts should not *631 speculate about whether purposes of trust have been fulfilled where trust specifies the termination event).
Here, Soefje's intent was, in part, to distribute all her property to Marvin and Peggy promptly after her death. However, because of the county and district court's erroneous construction of the trust and the third amendment, Soefje's real property has not been distributed according to her clear intent as expressed in the trust instruments. Under these circumstances, the purposes of the trust have not been fulfilled. See Newton, 554 S.W.2d at 154 (holding that judicial termination of trust was improper because "one purpose of the trust[,] ... the payment of the excess income to [beneficiaries], remains unfulfilled"). Therefore, the portion of the district court's judgment terminating the trust is reversed and remanded for further proceedings.
"NO CONTEST" CLAUSE
In her cross-point, Peggy argues that Marvin violated the trust's in terrorem, or "No-Contest," clause and he, therefore, forfeited any benefits received pursuant to the trust. An in terrorem clause, in a will or a trust, typically makes the gifts in the instrument conditional on the beneficiary not challenging or disputing the validity of the instrument. See, e.g., In re Estate of Hamill, 866 S.W.2d 339, 341 n. 1 (Tex.App.-Amarillo 1993, no writ) ("The term, in terrorem, as applied to wills refers to a legacy given upon condition that the beneficiary will not dispute the validity or disposition of the will."). In terrorem clauses are designed to dissuade beneficiaries from filing vexatious litigation, particularly as among family members, that might thwart the intent of the grantor. See Lesikar v. Moon, 237 S.W.3d 361, 369-70 (Tex.App.-Houston [14th Dist.] 2007, pet. denied).
Peggy claims that Marvin violated the trust's in terrorem clause by asserting that Peggy fraudulently induced Soefje into executing the trust agreement. Peggy argues that, by definition, an assertion of fraudulent inducement seeks to contest the validity of the instrument. Marvin argues that Peggy waived this cross-point both by not filing her own appeal, see TEX.R.APP. P. 25.1(a), and by not raising the claim in the district court. See TEX. R.APP. P. 33.1(a); Opperman v. Anderson, 782 S.W.2d 8, 11 (Tex.App.-San Antonio 1989, writ denied) ("The record does not reflect that the appellant raised this issue before the trial court; therefore, it was waived."). Peggy counters that because the first time Marvin sought to challenge the validity of the trust was on appeal, these rules of preservation are inapplicable.
However, Marvin's live pleading in the district court contains a claim for "fraud in the inducement" based on Peggy's alleged lack of intent to perform under the trust agreement at the time she entered into that agreement with Soefje. Accordingly, Peggy's assertion that an allegation of fraudulent inducement raises the issue of the applicability of the in terrorem clause, had to be raised before the trial court and perfected by notice of appeal. TEX.R.APP. P. 25.1(a); 33.1(a). She did neither and thus her cross-point on appeal is waived.
CONCLUSION
This is the third time this case and these parties have appeared before this Court. Despite the district court's understandable desire for finality, we conclude that further proceedings in the district court are necessary.
The district court properly concluded that most of Marvin's claims were barred by collateral estoppel. However, the district court's construction of the trust and *632 its third amendment was legally incorrect. Moreover, because the purposes of the trust have not been fulfilled, the trust should not have been terminated. Accordingly, the judgment of the district court is affirmed in part and reversed in part, and remanded to the trial court for further proceedings.
NOTES
[1] The order also stated that Peggy "is qualified and not disqualified to serve" as independent executor.
[2] See Schuele v. Schuele, 119 S.W.3d 822, 825 (Tex.App.-San Antonio 2003, no pet.) (holding that a county court at law exercising probate jurisdiction does not have jurisdiction to consider issues in a trust proceeding seeking an accounting as a matter incident to an estate).
[3] We reject Peggy's assertion that Marvin's request for declaratory relief is an impermissible collateral attack on the county court's judgment. As modified after the mandamus proceeding, that judgment was silent as to proper distribution of Soefje's real property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589828/ | 270 S.W.3d 234 (2008)
Roger and Linda HOOPER, Appellants,
v.
Bobby SMALLWOOD, Individually and d/b/a Bobby Smallwood Construction Co., Inc., et al., Appellees.
No. 06-07-00075-CV.
Court of Appeals of Texas, Texarkana.
Submitted August 13, 2008.
Decided October 22, 2008.
*236 Gregory A. Harwell, Richard M. Roberson, Gardere Wynne Sewell, LLP, Dallas, for appellant.
James R. Rodgers, Judy Hodgkiss, The Moore Law Firm, LLP, Paris, Jerry L. Ewing, Jr., Walters, Balido & Crain, LLP, Dallas, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Chief Justice MORRISS.
The 8,000-square-foot dream home of Roger and Linda Hooper, and the lawsuit that arose out of the construction of the house, became a nightmare for them, as well as for the builder of the house, Bobby Smallwood, individually and d/b/a Bobby Smallwood Construction Company, Inc., and concrete subcontractor, Robert Skinner. The central question in this case is where the blame should be placed for the serious physical problems that developed with the house. After a trial in which a Lamar County jury heard substantially conflicting testimony, the jury lay the blame squarely at the Hoopers' feet. From the trial court's take-nothing judgment, *237 the Hoopers appeal, raising multiple, extensive, and passionate arguments to this Court. We affirm the judgment of the trial court, because we agree with Smallwood's assertions on appeal:
(1) no error was committed in refusing the requested voir dire of witness Junior Fowler or in allowing his testimony;
(2) limiting testimony of expert James Pearson was not error;
(3) no error was committed relative to breach-of-warranty jury issues;
(4) legally and factually sufficient evidence supports the jury's verdict;
(5) limiting post-trial discovery was not an abuse of discretion; and
(6) refusing a new trial was not an abuse of discretion.
As in many negligence lawsuits, the central bone of contention is whose behavior caused the problem at issue. Was the instability in the house's foundation caused by Smallwood's decision to dig out a "bathtub" in the clay and to fill it with sand, combined with the wide spacing of stiffening beams (thicker sections) in the foundation? Or, on the other hand, were the problems caused by the Hoopers' unilateral acts of installing sidewalks around the house, leveling the slope immediately adjacent to the house, adding so much soil just around the house that it brought the soil level to an improperly high point on the foundation itself, and/or installing a swimming pool behind the house?
No dispute exists that the house developed various ailments related to its foundation: foundation cracks, shifting and lifting walls, cracks in wallboard, and sticking doors and windows. After hearing a considerable amount of testimony from a number of different sources, in answering percentage negligence questions, the jury found that the Hoopers' negligence in making changes to the area around the foundation was the sole cause of the problems; that Smallwood and Skinner did not fail to comply with any warranty; that Smallwood did not engage in deceptive acts or practices; and that the cost of repairs, loss of value, consequential damages, and attorney's fees for the Hoopers' attorney were all zero. The trial court accordingly rendered a take-nothing judgment in favor of Smallwood and Skinner.
Although the Hoopers' brief sets out twenty-one "issues," those issues orbit largely around two focal points: the witness, Junior Fowler, and the sufficiency of the evidence. We have grouped the issues for clarity.
We note that co-defendant Skinner is mentioned only once in the list of issues. Skinner is mentioned only in connection with an alleged error because the trial court refused to submit a breach of warranty question naming Skinner. That argument consists of two sentences at the end of the brief, without discussion or reference to the record or to authority. Because the issue has not been adequately briefed, we will not address it. See TEX. R.APP. P. 38.1(h).
(1) No Error Was Committed in Refusing the Requested Voir Dire of Witness Junior Fowler or in Allowing His Testimony
A huge portion of the Hoopers' effort on appeal is about witness Fowler, alleging improper contacts with him and frauds on the trial court involving him.
In a rather odd sequence of events, it appears that the Hoopers contacted Fowler (a local contractor) early on, asking for information about the cost of rebuilding their house. Fowler looked at the house and gave the Hoopers a generic cost of construction, plus a percentage for everything involved, due to the increase in materials *238 and transportation costs since the original construction was completed. Mr. Hooper had one of his employees take that information, calculate amounts, and place it on one of Fowler's letterheads. That information was provided to Smallwood in discovery, represented as being Fowler's expert report.
Before trial, Skinner attempted to depose Fowler. Fowler did not appear. Fowler refused to return Mr. Hooper's telephone calls or appear pursuant to the Hoopers' subpoena, and ultimately refused to appear for any depositions whatsoever. Smallwood's trial subpoena succeeded in getting Fowler to appear at trial. Smallwood called Fowler as a witness. The Hoopers sought to take Fowler on voir dire: "We filed a motion to hold him in contempt of Court and if we can just take him on voir dire outside the presence of the jury to figure out what he did to convince him to do what he did." The trial court denied the request.
In his testimony, Fowler described the condition of the house and sidewalks and the footprint of the house. Fowler ultimately opined that the main cause of the damage to the house was the Hoopers' addition of the sidewalks and flattening of the site. He then testified, quite pointedly, that he had visited the site only once "thinking I was going to help a friend and also get a job at the same time, and it was probably to giveit would just be an estimated guess probably, gosh, four or five, six months ago. I really don't know. I didn't write it down. I didn't document anything on that."
Fowler testified that he had never agreed to testify as an expert for the Hoopers, that initially he had no idea there was a lawsuit pending about the house, and that he told Mr. Hooper, "I'm going to tell you right now, Bobby Smallwood and I are friends. You are my friend, and I do not want to get in the middle of this."[1] Fowler also explained how the "report" came into existence. Fowler also testified that he had no desire to be there, and was there only because he was afraid he would go to jail if he did not appear in response to a trial subpoena.
Although the Hoopers assert error by the trial court in allowing Fowler to testify, the issue is not addressed by their brief in any detail. The purported error in allowing Fowler's testimony has not been adequately briefed, and we find nothing compelling that conclusion.
The Hoopers also complain that they were not allowed to voir dire Fowler, so that they could explore Fowler's refusal to respond to Mr. Hooper's calls, and his ignoring of a subpoena for a pre-trial deposition. There is no attempt to apply this argument to the case, beyond stating that, under Rule 705(b) of the Texas Rules of Evidence, it was an abuse of discretion to deny their request to conduct voir dire. See TEX.R. EVID. 705(b).
Rule 705(b) is exclusively directed at allowing voir dire "directed to the underlying facts or data upon which the opinion is based." That is neither what the Hoopers asked for, nor what they appear to have wanted then or later. There is nothing in the rule to support that position.
We find no error regarding witness Fowler.
(2) Limiting Testimony of Expert James Pearson Was Not Error
The Hoopers also claim that the trial court erred in excluding testimony of appraiser Pearson. Pearson had been *239 called by the Hoopers to testify that, because the estimated cost of repairing the housethat is, repairing the improvements on the landexceeded the amount reportedly paid to build the house originally, the improvements currently had no value. After Smallwood's counsel was allowed to take Pearson on voir dire and the Hoopers' counsel was allowed to make an offer of proof, the trial court ruled that Pearson's testimony would not be allowed.
The Hoopers' argument on this point neither made references to the record, nor cited any authority for the proposition urged. Appellate briefs must contain appropriate citations to authorities and to the record. TEX.R.APP. P. 38.1(h), 38.2(a)(1). An argument may be waived if inadequately briefed. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994); Gray v. Nash, 259 S.W.3d 286, 294 (Tex.App.-Fort Worth 2008, pet. denied).
We also observe that Pearson's testimony involved only issues of damages. Given the jury's verdict, no damages were recoverable by the Hoopers, making any such testimony on damages irrelevant.
We overrule this contention of error.
(3) No Error Was Committed Relative to Breach-of-Warranty Jury Issues
The Hoopers also argue (with no reference to authority or any legal analysis) that the trial court erred by submitting a question on whether Smallwood breached express and implied warranties because the Hoopers established the breaches as a matter of law. An inadequately briefed issue may be waived on appeal. See Fredonia State Bank, 881 S.W.2d at 284 (discussing "longstanding rule" that point may be waived due to inadequate briefing). Accordingly, in the absence of authority or analysis, we will not consider these complaints. TEX.R.APP. P. 38.1(h). We also note that, given the substantially conflicting evidence in the record, no ultimate issue was proven conclusively, leaving the issues for the jury to decide.
(4) Legally and Factually Sufficient Evidence Supports the Jury's Verdict
In two variations on a theme, the Hoopers contend that the jury's verdict finding them negligent is unsupported by sufficient evidence and that they conclusively proved that Smallwood was negligent. Their argument largely focuses on the causation element of a negligence cause of action. We initially recognize that the question of the Hoopers' own negligence is not relevant to this review. The relevant question before us is whether sufficient evidence supports the jury's conclusion that Smallwood was not negligent. Although the argument is imprecise, it appears the Hoopers' complaint is that the evidence of proximate cause was lacking, that is, the evidence proves conclusively that Smallwood and Skinner were the proximate cause of the injury.[2]
When a party attacks the factual sufficiency of an adverse finding on an *240 issue on which he or she has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); In re Estate of Steed, 152 S.W.3d 797, 806 (Tex.App.-Texarkana 2004, pet. denied).
In a review of this nature, we are required to consider and weigh all of the evidence, and we can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Steed, 152 S.W.3d at 806; see also Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). In conducting our review, we are mindful that the fact-finder was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). We will not pass on the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached. Long v. Long, 196 S.W.3d 460, 464 (Tex.App.-Dallas 2006, no pet.); In re Estate of Henry, 250 S.W.3d 518, 523 (Tex.App.-Dallas 2008, no pet.).
As most recently articulated by the Texas Supreme Court, the test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
In determining a no-evidence issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).
In a factual sufficiency review, we consider and weigh all the evidence and will set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Vickery v. Vickery, 999 S.W.2d 342, 376 (Tex.1999); Pool, 715 S.W.2d at 635; Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
The elements of a negligence cause of action are a legal duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004) (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002)). To establish proximate cause, a plaintiff must prove two elements, cause-in-fact and foreseeability. Id. Cause-in-fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Id. at 799; Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991). The jury's negative answer to jury question number one as to Smallwood and Skinner represented a refusal to find from a preponderance of the evidence that negligence of either Smallwood or Skinner *241 was a proximate cause of the occurrence. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Hutchison v. Pharris, 158 S.W.3d 554, 564 (Tex.App.-Fort Worth 2005, no pet.).
The following evidence is not substantially disputed:
(a) the house is on ground having a fairly substantial slope;
(b) the builder dug out an area of the clay slope, filled it with sand, and built the Hoopers' house atop the sand, retaining the slope, which he described as critical to proper drainage;
(c) the Hoopers, without consultation with Smallwood, had another contractor build sidewalks around the house and had at least twenty-one dump truck loads of soil brought in and placed inside the sidewalk perimeter, effectively leveling the areas in the front and back of the house; and
(d) water collected under the slab causing expansion of the clay subsoil beneath the sand and resulting in the heaving of the house's foundation.
Beyond those basics, there was considerable divergence of evidence and opinion. A number of witnesses provided a number of possible answers to the question of fault. The witnesses' testimony attempting to assess blame for the movement of the soil and the damage to the house is all over the map.
The Hoopers fault Smallwood for providing no expert testimony that would set up a proper standard of care that Smallwood allegedly met. As the Hoopers were plaintiffs, this is not the proper view. The Hoopers provided experts that set up a number of inconsistent standards, and then a number of inconsistent ways in which those varying standards might be met. The problem is not that there was no evidence of a proper standard of care. The problem is that there were many different proposed standards of care.
Smallwood testified that, in his opinion, the collection of water and subsequent heaving of the soil was because of the Hoopers' flattening of the slope.[3] When the complaints began, Smallwood offered to remove the sidewalks and restore the slope at no cost to the Hoopers. Mr. Hooper refused the offer. Instead, Mr. Hooper dug a hole, found no water appeared in it, and concluded that this proved that the sidewalks and slope were not the source of the problem. The Hoopers later installed some French drains around the house.
Donald Illingworth testified that the flat site and later-added fill around the house was the problem and agreed that the sidewalks should have been taken out and the slope away from the foundation restored. He also testified that he believed that the beams were too far apart and that Smallwood should have consulted a soils or structural engineer before preparing the foundation. He also admitted, however, that foundation problems can exist even with such additional information and that he had previously written an expert report in a Lamar County case stating that a five-inch slab with no engineering or soil borings was reasonable for the area. Illingworth also opined that no fill dirt should have been used and that the slab should have been placed directly on the clay.
*242 George Perdue did a boring around the house and found water. He also derided the decision to create a pad for the foundation by digging a hole and putting sand in it, stating that this would make the soil problems only worse. Perdue disagreed with Illingworth about building on the clay, and also disagreed with Newton Gorsha's opinion.
Gorsha, another engineer, testified that the clay beneath the house was shrinking or swelling because of water, and with no underground source, it would necessarily come from another source. He agreed that grading was necessary to help water flow away from the house and that expansive clay was a problem. He also believed that an engineer should have been hired and that a soils report should have been obtained before building. He opined that native soil and more fill dirt under the foundation should have been used.
Skinner testified that he met with Mr. Hooper and Smallwood in early 2004 and discussed sidewalks with them. Skinner related that Smallwood wanted them removed, but Mr. Hooper refused. Skinner testified that the sidewalks were level with the house, and the flower beds were mounded up in such a fashion that water would run toward the house, with no way to get out. He also suggested that water is getting in around the perimeter, inside the sidewalks.
Gary Hilliard, a soils engineer, also testified (by deposition) that Smallwood did not have enough stiffening in the foundation, that the beams were too far apart, that the digging/sand combination was a poor way to construct such a house, and that Smallwood should have hired an engineer. When he was asked to opine that the house was not built in a prudent manner, however, he refused, stating that the vast majority of houses built in Lamar County use neither soils testing nor engineers, that nothing about the foundation fell below standards, and that everything done on the house was within standards. He also acknowledged that "Murphy always rules"in other words, sometimes problems occur no matter what precautions are taken.
Fred Marshall, the Hoopers' expert for cost of repairs, believed water on the perimeter caused the problem.
Jerry Stephens, a concrete construction and foundation repair businessman (with over thirty years' experience in Lamar County) testified that he went to the house. Stephens testified that he would not give his usual lifetime warranty for foundation repair if the sidewalks around the Hooper house were not corrected and that, if he had been allowed to do the work early on, when he first went out, the cost would have been less.
Fowler testified that he saw the water-ponding problem and told Mr. Hooper to take action to get water away from the foundation.
John Bryant, Skinner's engineer, testified (by deposition) that he believed water around the perimeter contributed to the damage and that he assumed drains were put in because the sidewalks were trapping water. He equivocated at length, testifying that a number of factors could cause water to be trapped, including the sidewalks.
James Dawson, the individual overseeing construction projects for a local school district, noted that, even with soils testing, engineering, and the use of architects, he has still experienced substantial problems at times.[4]
*243 In short, we have evidence, expert and otherwise, supporting both sides' positions about the cause of the problem. The evidence would sufficiently support either jury finding: that the problem was caused by Smallwood's foundation design or his digging out and putting in sand under the foundation or that the problem was caused by the Hoopers' addition of sidewalks, removal of the slope, and/or the additional fill dirt. There is opinion evidence that the design of the foundation was inadequate and, on the other hand, that the design was standard and adequate for the area. There is opinion evidence that engineers and soil tests should be used by any competent builder, testimony that they were not so used in Lamar County, and opinion evidence that, even if they had been used, they would not necessarily have avoided the problem.[5] There is evidence that Smallwood was a good and competent builder, with over 700 homes to his credit, and other opinion evidence that he was not too good or he would have involved engineers and soil testers in the process. The "experts" variously testified that the water came in from the perimeter around the house, that it did not, and that an unknown underground aquifer might be causing the problem. Experts opined that, either the soil should have been simply built on, that too much fill dirt was taken out, that no dirt should have been taken out, or that different types of fill should have been brought in.
Clearly, the evidence is in conflict. This Court is not a fact-finder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998); Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex.1986) (findings of fact are exclusive province of jury or trial court). It is not within the province of this Court to interfere with the fact-finder's resolution of conflicts in the evidence or to pass on the weight or credibility of the witnesses' testimony. Sw. Airlines Co. v. Jaeger, 867 S.W.2d 824, 829-30 (Tex.App.-El Paso 1993, writ denied). Where there is conflicting evidence, the fact-finder's verdict on such matters is generally regarded as conclusive. Edmunds v. Sanders, 2 S.W.3d 697, 703 (Tex.App.-El Paso 1999, writ denied); see Pool, 715 S.W.2d at 634.
There is evidence that would support a rather large number of outcomes in this case. That being so, we cannot choose one over the other and disregard the jury's resolution of the disagreements among the witnesses. The jury's verdict was not reached against the great weight and preponderance of the evidence.
In related arguments, the Hoopers argue that Smallwood judicially admitted that he was negligent and that his admission thus conclusively proves his negligence. We have reviewed the salient testimony. The testimony is not an admission that he was negligent. In context, Smallwood made an entirely reasonable statement that, if he were building the house now, based on what he now knows, he would build it differently. In the second *244 referenced statement, Smallwood stated that he thought he was building the house in a good and workmanlike manner, but apparently did not do so. Again, after observing testimony from a host of experts, and then being grilled at some length about the various problems of the house, and about all of the different ways in which the foundation could have been built, the response is entirely reasonable and is certainly not a judicial admission of negligence.
The Hoopers further argue, without reference to authority, that the jury's answers to the question of Smallwood's breach of warranty were unsupportable because the evidence established conclusively that Smallwood breached his warranty regarding the quality of his construction and the implied warranty of good workmanship. However, there is evidence, as previously noted, from multiple sources indicating that Smallwood's workmanship was good and met all standards of the area and that he did not act in such an unsupportable fashion as would prove breach as a matter of law.
The Hoopers conclude that argument by stating in two short paragraphs that Smallwood's representations were such to require a finding in the Hoopers' favor on their Deceptive Trade Practices Act claim. This segment likewise has no reference to relevant authority, does not set out the elements of such a claim, and makes no effort to apply a broad, general statement of the facts of this case. As noted above, the evidence is in conflict, and even were the briefing sufficient (which it is not), the argument would fail. These contentions are likewise overruled.
The Hoopers also complain because the jury answered with zero amounts for both damages or repair costs and attorney's fees. They argue that the evidence conclusively shows that this cannot be right. Under our resolution of the remainder of this appeal, we need not address these issues.
We overrule all contentions asserting the insufficiency of the evidence.
(5) Limiting Post-Trial Discovery Was Not an Abuse of Discretion
The Hoopers also complain that they were not provided with sufficient post-trial discovery to allow them to fully develop their theory about fraud and conspiracy. Unlike the situation where pretrial discovery is involved, there are no clear rules regarding the provision of post-trial discovery in this context. Generally, the scope of discovery relies on the properly exercised discretion of the trial court. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003) (orig.proceeding) (per curiam).
The Hoopers state they wanted more discovery of communications between counsel and communications with adjusters, billing records, and additional telephone records. As pointed out by Smallwood's attorney, parts of that request implicate attorney-client privilege, and counsel flatly denied that the requested emails existed. There is no articulated reason why additional (presumably earlier) telephone records would be of assistance to the Hoopers' arguments in favor of a new trial. At the hearing on the motion for new trial, the Hoopers introduced Fowler's telephone records from April 2006 through February 15, 2007; Smallwood's telephone records from December 24, 2006, through February 23, 2007; and Chadwick's (the attorney's investigator) telephone records from April 2006 through February 15, 2007. The trial was held from February 6 through February 9, 2007.
Although the Hoopers do not find the quantum of discovery allowed to be sufficient, *245 it is difficult to conclude the trial court abused its discretion by limiting discovery as it did, and the Hoopers have provided no rationale suggesting such abuse. We overrule the issue.
(6) Refusing a New Trial Was Not an Abuse of Discretion
The general rule is that a trial court has wide discretion in ruling on a motion for new trial and that its action will not be disturbed on appeal absent a showing of an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003).[6] The trial court does not have unbridled discretion to decide a motion for new trial, but instead must rely on guiding rules and principles in reaching its decision. Mosser v. Plano Three Venture, 893 S.W.2d 8, 10 (Tex.App.-Dallas 1994, no writ).
The Hoopers contend that, at the hearing on their motion for new trial, they showed that fraud was committed against the trial court by Smallwood and persons related to Smallwood, which necessarily required or justified granting a new trial. The alleged fraud on the court, the Hoopers assert, was perpetrated by Smallwood in contacting one of the Hoopers' experts, Fowler, and convincing him to not return Mr. Hooper's telephone calls, but to testify for Smallwood against the Hoopers at trial. The Hoopers raised these matters at trial, but had little information to bolster their position. Before the hearing on the Hoopers' motion for new trial, they obtained discovery about a number of telephone calls that had been placed between Fowler and Smallwood before trial. The Hoopers argue now that, based on that information, they proved a conspiracy to commit fraud on the trial court and, thus, the trial court erred by denying their motion for new trial.
In extensive and heated arguments, the Hoopers connect the alleged frauds on the court with asserted improper contacts with Fowler and allegedly resulting false testimony. But the Hoopers' extensive and energetic efforts to attempt to expose opposing counsel's alleged improper contact with Fowler is, in the final analysis, "full of sound and fury, [s]ignifying nothing." WILLIAM SHAKESPEARE, THE TRAGEDY OF MACBETH, act 5, sc. 5. The underlying problem with the Hoopers' efforts regarding Fowler is that the evidence amply supports, even strongly suggests, the conclusion that Fowler was not a retained expert for the Hoopers. Unless Fowler was the Hoopers' retained expert witness,[7] contacts with him by Smallwood's counsel, even if any had been proven, would have been entirely proper.
*246 Fowler is a building contractor in the area, and there is evidence that he and Mr. Hooper had personally met and discussed possible costs to repair the house. However, the only thing provided by the Hoopers in discovery in connection with Fowler was a list of costs for the various repairs, which they indicated was Fowler's expert report; yet Fowler unequivocally testified that he had not prepared a report. Fowler was also clear that he never agreed to be the Hoopers' expert witness. He maintained all along that he did not wish to be involved in this dispute.
Second, although the Hoopers complain that Fowler's appearance at trial was a surprise, it is difficult to give that complaint any credence: he was named as a witness by the Hoopers, as well as by Skinner.
Third, there is little that would prevent the opposing party from contacting a named witness, expert or otherwise, before trial. The only limitation would forbid opposing counsel from contacting a retained expert witness without permission, which we have already said was not applicable here.
Fourth, it is obvious that Fowler had no confidential information, that he had no insight into litigation strategies, or even more than one meeting with Mr. Hooper. There is no confidentiality agreement, there was no long-standing special relationship, no fee paid, and no attorney work product involved.
Fowler's testimony was that, from the very beginning, he had (and articulated that he had) no desire to be involved in this litigation. Fowler had testified at the trial that he had initially thought that the Hoopers wanted only some repair work done. He said he had asked the Hoopers if there was litigation between them and Smallwood and was told there was not. Fowler testified that he never agreed to be an expert for the Hoopers and was not paid to be one. He indicated that he told the Hoopers' attorney, when told that they were listing him as an expert, that he would not act as one, that he did not prepare the report, and that Fowler had initiated contact with Smallwood, not the other way around.
The fact that a witness, even an expert witness, for one side talks willingly to the other side is not necessarily improper. There are several cases discussing the impact of contact and discussions between experts for one side and counsel or parties from another. They uniformly find that where nonretained expert witnesses are concerned, such meetings are not improper.[8]Durst v. Hill Country Mem'l Hosp., 70 S.W.3d 233 (Tex.App.-San Antonio 2001, no pet.) (defendant's treating physician meeting alone with plaintiff's counsel not improper, though some worries articulated about possible revealing of otherwise unrelated and confidential information under doctor-patient privilege); Hogue v. Kroger Store No. 107, 875 S.W.2d 477 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (same); cf. In re Collins, 224 S.W.3d 798 (Tex.App.-Tyler 2007, no pet.) (same; but trial court could issue protective order because doctors might know nonrelevant and privileged facts).
*247 One recent case from the Corpus Christi Court of Appeals discusses retained experts at some length in the context of explaining what is required to justify disqualifying one and refusing to permit him to testify. Formosa Plastics Corp., USA v. Kajima Int'l, Inc., 216 S.W.3d 436 (Tex. App.-Corpus Christi 2006, pet. denied). It also is not directly on point, as it discusses retained experts and confidential relationships, caused by providing confidential or privileged information to the expert by the party. Neither situation exists here. Even in the context of retained experts, however, the Corpus Christi court recognized that experts should not be too easily disqualified, because "unscrupulous attorneys may attempt to create relationships with numerous potential experts at a nominal fee hoping to preempt the ability of their adversaries to obtain expert assistance." Id. at 448-49.
The contacts between Fowler and Smallwood have not been shown to be wrongful. There is no evidence that Fowler changed his testimony because of Smallwood, other than the speculative and imaginative inferences proposed by counsel for the Hoopers. Further, part of the Hoopers' argument is based on the underlying notion that opposing counsel was involved in some sort of collusion and that Fowler was a retained expert with some sort of inside knowledge that was used by counsel for Smallwood's benefit. No evidence suggests that Fowler was a retained expert, and both sides acknowledge that Fowler would not even talk to Mr. Hooper. It is thus unlikely that Fowler had access to any inside or privileged information. Fowler's refusal to appear for depositions is certainly not laudablein fact, he was ultimately held in contempt for his failure to appearbut the evidence suggests that his behavior shows more a desire not to be involved or a disgust with the entire proceeding than anything else.
The Hoopers focus on cell phone records indicating that there were twenty-two telephone calls made between Fowler and Smallwood before trial, and on the content of some of those calls concerning the "water trapping flower beds" and the creation of a repair estimate. The Hoopers listed the telephone calls, and provided evidence, at the hearing on the motion for new trial, from the post-trial deposition of Fowler and a transcription of an interview with Smallwood in which it appears that Fowler admitted talking to Smallwood about the house, the problems with the house, and the problems with the drainage. The Hoopers complain that this is different from Fowler's testimony at trial: that he had only talked to Smallwood three times about the house.
The testimony, however, is hardly one-sided. There is also evidence that a number of the twenty-two calls were likely telephone tag which began when Fowler went by Smallwood's office and asked him to call. According to the process server's affidavit, he called Fowler a number of times before trial to keep him updated on when trial would eventually begin and when he would actually need to appear. It seems at least possible that more than three contacts occurred that had at least some discussion of the house involved. Even multiple contacts, however, are not problematic under these facts.
Under this evidence, it is not apparent that the trial court acted outside the scope of its discretion in denying the motion for new trial.
Counsel also mentions several other items which appear intended to support his equitable argument that a new trial should have been granted in the interest of justice. He argues that he proved that counsel breached his ethical duties because Fowler lied at trial about the number of *248 contacts he had made with Smallwood or his counsel, James Rodgers, and that Rodgers knew about the lie and failed to take action to correct it. There was evidence at the hearing on the motion for new trial to the contrary, and also testimony that, when the process server who had served Fowler began to tell Rodgers about Fowler's furious tirade after being informed that he was named as a witness in the case, Rodgers told Jim Chadwick that he wanted to hear nothing about what Fowler had to say except from the stand.
Counsel for the Hoopers complains because the process server (Chadwick) used by Rodgers talked to Fowler repeatedly before trial. Chadwick is married to Smallwood's daughter. Again, as previously discussed, Fowler was not a retained expert. If Fowler was willing to talk, there was no ethical or legal impediment to keep an investigator from talking to him.
Counsel for the Hoopers complains about Rodgers' leading questioning of Fowler, but provides no real argument. It appears that counsel is attempting to use that as some sort of support for his main complaint, that Rodgers necessarily knew what Fowler was going to testify to and was having to lead him into it.
The Hoopers also suggest that counsel for Skinner, Jerry Ewing, acted in a manner that supported the conspiracy because he opposed post-trial discovery. In fact, the trial court twice quashed a subpoena and refused to "produce documents indicating the nature of the Fowler conspiracy." Ewing was questioned at the hearing, but his statements were innocuous.
Counsel for the Hoopers also complains that, during a break in Fowler's cross-examination at trial, Rodgers pulled Fowler aside and talked to him. The record shows counsel questioning Fowler about this, with the following exchange:
Q. ... During the break from 10:00 to 10:20 excuse me 10:20 to 10:22 you talked to Mr. Rodgers?
A. Right.
Q. What did you talk about?
A. What did I talk about?
Q. Yes, sir.
A. He was kind of concerned about you were [sic] trying to make me say that they [Smallwood] had contacted me. I haven't talked to any of these people.
There was no other discussion, no complaint raised, counsel merely continued on with his questioning. Neither error nor harm is shown, and counsel's attempts to show the existence of a conspiracy from such slender comments is at the very least imaginative.
The Hoopers also complain because their witness (who they did not call) was called to testify by Smallwood without prior warning. They seem to argue that this is inappropriate because the parties had agreed to tell each other who they were going to call and the sequence on the day before each was called to testify. However, Smallwood has directed us to direct statements by the Hoopers' counsel that, although the trial court had asked them to reach such an agreement, they had not.
The Hoopers also complain that Smallwood had not identified Fowler as a trial witness as required by an interrogatory. However, it appears that Skinner had done so, and had the Hoopers' counsel complained about this failure in a timely fashion, the witness could still have been brought because of Skinner's designation.
Nothing shows any impropriety by Rodgers. We are not convinced, either by the arguments raised nor by the large number of unrelated comments made by counsel for the Hoopers, that the trial court abused its discretion by denying the *249 motion for new trial. The contention of error is overruled.
We affirm the judgment.
NOTES
[1] Fowler testified that he threw the subpoena into his fireplace and burned it and that he did call Smallwood to tell him that he was not going to appear.
[2] The Hoopers also argue, in this context, that there was no evidence that they were responsible for the way in which the sidewalks and soil were installed. It is clear that they paid for the work and that they hired others to perform the job they laid out for them to do. For the Hoopers to now claim that they had no responsibility because someone else did as they directed is insupportable. Further, if they wished to claim that some other party followed their directions in a negligent manner, it was their responsibility to bring them into the suit as parties and attempt to recover from them. The Hoopers now state flatly in their appellate brief that the "independent contractor" was negligent. That argument is raised too late to be considered.
[3] We recognize that the Hoopers now complain that Smallwood's testimony should be disregarded because he was not named as an expert witness. However, he was able to testify, and did so without objection. Any complaint about the nature of his testimony has not been preserved for our review. See TEX.R.APP. P. 33.1.
[4] The Hoopers argue that this witness' testimony should be disregarded as without any weight, because he is not an expert builder and works with a school district. It is, however, apparent from his testimony that the witness has expertise in connection with the construction of large buildings in the area. He is hardly inherently unbelievable as counsel suggests, and any weakness in his credentials or testimony will go to the weight of his testimony and credibilitymatters exclusively for the determination of the jury.
[5] The Hoopers also argue that there is no expert testimony that supports the jury's conclusion that the Hoopers were negligent. That particular argument is immaterial, as the question is whether Smallwood was negligent, and whether the finding that he was not is against the great weight and preponderance of the evidence.
[6] Similarly, if we classify this as involving newly discovered evidence, the standard for our review is the same: we also review a trial court's ruling on a motion for new trial based on newly discovered evidence for an abuse of discretion. Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 629 (Tex.App.-Dallas 2004, pet. denied). A party seeking a new trial on the ground of newly discovered evidence must show the trial court that (1) the evidence has come to his or her knowledge since the trial, (2) it was not owing to the want of due diligence that it did not come sooner, (3) it is not cumulative, and (4) it is so material that it would probably produce a different result if a new trial were granted. Wheeler v. Greene, 194 S.W.3d 1, 6 (Tex.App.-Tyler 2006, no pet.); Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex.App.-Fort Worth 2006, pet. denied); see Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 240 (Tex.App.-Dallas 2000, pet. denied), (citing Jackson, 660 S.W.2d at 809).
[7] The word "retain" is defined in relevant part as "to keep in one's pay or service ... to employ by paying a retainer." Merriam-Webster's Collegiate Dictionary 1063 (11th ed.2006).
[8] This is readily distinguishable from the wrongdoing described in Rule 4.02(b) of the Rules of Professional Conduct, which provides that "a lawyer shall not, personally or by representative, cause another to communicate about the subject of representation with a person ... a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02(b) (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589830/ | 84 F.Supp. 680 (1949)
FERRER et al.
v.
WATERMAN S. S. CORPORATION.
TORRES et al.
v.
WATERMAN S. S. CORPORATION.
ALGARIN et al.
v.
WATERMAN S. S. CORPORATION.
Civ. Nos. 3741, 4034, 4035.
United States District Court D. Puerto Rico. San Juan Division.
May 9, 1949.
*681 *682 Arturo Ortiz Toro, San Juan, Puerto Rico, for plaintiffs.
J. R. Beverley, San Juan, Puerto Rico, for third-party plaintiff.
C. R. Hartzell, United States Attorney, San Juan. Puerto Rico, for defendant.
CHAVEZ, District Judge.
Plaintiffs Guadalupe Barbosa Ferrer and others filed suit to recover unpaid overtime compensation, liquidated damages and attorneys fees under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Judgment for overtime compensation and liquidated damages was rendered for plaintiffs in the total sum of $36,958.88. Ferrer v. Waterman Steamship Corporation, D.C., 70 F.Supp. 1. Thereafter, pursuant to a ruling by this Court, 76 F.Supp. 601, the defendant set up two special defenses under Sections 9 and 11 of the Portal-to-Portal Act approved May 14, 1947, 29 U.S.C.A. 258, 260, and the only question before the Court is upon said two special defenses.
Plaintiffs were employed as longshoremen under yearly collective bargaining agreements between their union and the defendant company. The collective bargaining agreement provided for different rates of pay according to the hours worked and the cargo handled and such rates were paid by the company. The contract set up the following scale of compensation:
"The hours of work and the wages for working days, extraordinary hours and holidays, according to the cargo to be handled, shall be as follows:
General Cargo
From To Work Days Holidays
7 a.m. 12 M.D. $0.55 $0.77
12 M.D. 1 p.m. 0.90 1.00
1 p.m. 4 p.m. 0.55 0.77
4 p.m. 6 p.m. 0.77 0.84
6 p.m. 7 p.m. 0.90 1.20
7 p.m. 11 p.m. 0.77 0.84
11 p.m. 12 M.N. 0.90 1.25
12 M.N. 6 a.m. 0.84 1.02
6 a.m. 7 a.m. 1.30 1.40
Special Cargo
Cement, Fertilizer, Creosoted Lumber, Scrap Iron,
Suchal, Calcium, Raw Sugar in San Juan and
Mayaguez
From To Ashore Aboard Ashore Aboard
7 a.m. 12 M.D. $0.60 $0.66 $0.88 $0.93
12 M.D. 1 p.m. 1.00 1.10 1.10 1.30
1 p.m. 4 p.m. 0.60 0.66 0.88 0.93
4 p.m. 6 p.m. 0.80 0.85 1.02 1.03
6 p.m. 7 p.m. 1.10 1.30 1.65 1.90
7 p.m. 11 p.m. 0.80 0.85 1.02 1.03
11 p.m. 12 M.N. 1.10 1.30 1.65 1.90
12 M.N. 6 a.m. 1.02 1.08 1.08 1.08
6 a.m. 7 a.m. 1.25 1.50 1.45 1.70"
In the original trial of this case and at the present time the defendant company and the intervenor take the position that rates after 4 p. m. and on Sundays and holidays, were true overtime rates and entitled to be considered as such in all calculations and that the regular rate of pay was from 7 a. m. to 12 noon and from 1 p. m. to 4 p. m., as set out in the collective bargaining agreement regardless of whether the rates were for general cargo or for special cargo. The defendant argues that a true example of the incentive pay was the difference in rates during regular hours between general cargo and special cargo and that night work and Sundays and holidays worked at extra rate were entitled to be counted as overtime pay.
The Court adopted the report of the Special Master who rejected the theory of the defendant and made his findings and calculations as to regular rate of pay by taking the total pay of each plaintiff each week and dividing it by the number of hours worked during said week. This regular rate was then used as the basis for the computation of time and a half after forty hours work per week.
Since the Court has already held that the varying rates of pay received by the plaintiffs under their contract were regular rates and not overtime and approved the Special Master's computation of the amounts due, *683 the question arises under the two special defenses whether the actions or omissions of the defendant were:
(a) In good faith in conformity with and in reliance on any administrative regulation, order, ruling, approval or interpretation of any agency of the United States, or any administrative practice or enforcement policy of any such agency, or
(b) in good faith and "with reasonable grounds for believing" that it was not a violation of the Fair Labor Standards Act of 1938.
The statutes and sections of Interpretative Bulletin No. 4, pertinent to this care, are as follows:
Section 9, Title 29 U.S.C.A. § 258:
"In any action or proceeding commenced prior to or on or after May 14, 1947 based on any act or omission prior to May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, if he pleads and proves that the act or omission complained of was in good faith, in conformity with and in reliance on any administrative regulation, order, ruling, approval, or interpretation, of any agency of the United States, or any administrative practice or enforcement policy of any such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect. May 14, 1947, c. 52, § 9, 61 Stat. 88."
Section 11, Title 29 U.S.C.A. § 260:
"In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216(b) of this title. May 14, 1947, c. 52 § 11, 61 Stat. 89."
Sections 13 and 14 of Interpretative Bulletin No. 4 as originally released (1938) and sections 69, 70 and 71 of Interpretative Bulletin No. 4 as amended (1940) and examples 3, 5, 6(a), 6(b) of Section 70, are as follows:
"Section 13 Extra Compensation for Overtime Not included in Determining Regular Rate of Pay.
"Extra compensation paid for overtime work need not be included in determining the employee's regular hourly rate of pay. Thus, if an employee earns $19.50 for a regular 39-hour workweek and time and a half or 75 cents is paid for all hours in excess of 39, the regular hourly rate of pay is still 50 cents an hour and, if the employee worked 46 hours one week he would be entitled to $24.75 (39 hours × 50 cents) plus (7 hours 75 cents) or (46 hours × 50 cents) plus (7 overtime hours × 25 cents). The same principle applies to a pieceworker or hourly rate employee where time and a half is given for overtime work."
"Sec. 14. Employees Paid at Two Rates of Pay in Single Workweek.
"If an employee, during a single workweek, is paid at two different rates of pay, his regular hourly rate of pay, on which time and one-half must be paid, is the average hourly rate for the week, computed by dividing the weekly earnings at both rates by the total number of hours worked in the week. For his overtime work the employee is entitled to a sum, in addition to such earnings, equivalent to one-half the hourly rate of pay, arrived at as indicated, multiplied by the number of hours worked in excess of 40. Thus, suppose an employee works 30 hours a week at an occupation paying 40 cents an hour, and 20 hours in the same week at an occupation paying 50 *684 cents an hour. The employee's hourly rate of pay is 44 cents an hour $22 (30 hours × 40 cents) plus (20 hours × 50 cents) divided by 50 hours) and he is entitled to be paid a total wage of $24.20 (30 hours × 40 cents) plus (20 hours × 50 cents) plus (10 overtime hours × 22 cents). In other words, the employee is entitled to be paid an amount equivalent to 44 cents an hour for 40 hours and 66 cents an hour for 10 hours. The regular hourly rate of pay will be computed in the same way where a pieceworker is employed at two different piece rates during the week or in any other case where an employee works at two different rates during a week."
Sec. 69 of Interpretative Bulletin:
"The question has been asked as to what are the requirements of Section 7 in cases where a union agreement or other agreement between an employer and his employees calls for the payment of overtime or other special compensation which is not required to be paid by the act. Extra compensation paid for overtime work, even if required to be paid by a union agreement or other agreement between the employer and his employees need not be included in determining the employee's regular hourly rate of pay (see par. 13 of this Bulletin.) Furthermore, in determining whether he has met the overtime requirements of section 7 the employer may properly consider as overtime compensation paid by him for the purpose of satisfying these requirements, only the extra amount of compensation over and above straight time paid by him as compensation for overtime work that is, for hours worked outside the normal or regular working hours regardless of whether he is required to pay such compensation by a union or other agreement. In no week, of course, will the overtime requirements of section 7 be met unless the employee receives an amount equal to at least his regular rate of pay for 40 hours and time and one-half such rate for the hours worked in excess of 40. It should be noted, however, that the act does not supersede provisions of a collective bargaining agreement or other agreement between an employer and his employees which set standards higher than those set in the act; which, for example, require the employer to pay time and a half for all hours worked in excess of 8 hours a day regardless of how many hours in the aggregate the employee may work in a week. Nothing in the act, therefore, relieves an employer from any obligation he may have assumed by contract (see Interpretative Bulletin No. 8, especially paragraphs 4 through 9 thereof.) It should be pointed out, however, that the question as to what are the obligations of the employer under the agreement is a question of general contract law about which it is not the function of the Division to express any opinion."
Section 70 (Examples)
"(3) An agreement of employment calls for the payment of time and one-half for all hours worked in excess of 8 hours, the normal or regular workday.
"Suppose an employee paid $1 an hour works the following schedule:
M T W T F S S
Hours 10 10 10 10 8 0 0
Pay under union agreement $11 11 11 11 8 0 0
"In our opinion the payment of $52 to which the employee is entitled under the union agreement, will satisfy the requirements of section 7. Since the extra $4 for the daily overtime is paid by the employer to the employee as overtime compensation the employer may properly consider and credit himself with such amount as overtime compensation paid to meet the requirements of section 7. When the extra $4 is so credited, the amount paid the employee $52 is an amount equal to the employee's regular rate of pay for 40 hours and time and one-half such rate for the extra 8 hours and the employer has satisfied the requirements of section 7. We reject the contention that the employer must pay $56 to satisfy the requirements of the act. (48 × $1) plus (8 daily overtime hours × 50¢) plus (8 weekly overtime hours × 50 cents). To do so would impose a double penalty upon the employer by requiring him to pay time and one-half for hours already paid for at time and one-half."
"(5) An agreement of employment calls for the payment of straight time up to 48 hours and double time thereafter.
*685 "Suppose an employee paid $1 an hour works the following schedule:
M T W T F S S
Hours 8 8 8 8 8 8 8
Pay under union agreement $8 8 8 8 8 8 16
"In our opinion the payment of $64 to which the employee is entitled under the union agreement will satisfy the requirements of section 7. Since the extra $8 for the 8 hours in excess of 48 is paid by the employer to the employee as overtime compensation the employer may properly consider and credit himself with such amount as overtime compensation paid to meet the requirements of section 7. When the extra $8 is so credited the amount paid the employee $64 is an amount equal to the employee's regular rate of pay for 40 hours and time and one-half such rate for the extra 16 hours and the employer has satisfied the requirements of section 7. Of course, should the employee work only 48 hours one week he must be paid $52 (40 times $1 plus (8 × $1.50) for that week in spite of the provision in the union agreement that he is to receive the overtime rate only after 48 hours are worked in a week.
"(6) An agreement of employment calls for the payment of time and one-half for all hours worked on a holiday or on Sunday.
"(a) Suppose an employee paid $1 an hour works the following schedule:
M T W T F S S
Hours 8 8 8 8 8 8 0
Pay under union agreement $8 12 8 8 8 8 0
"In our opinion the payment of $52 to which the employee is entitled under the union agreement will satisfy the requirements of section 7. We reject the contention that the employer must pay $56 to satisfy the requirements of the act (48 × $1) plus (8 holiday overtime hours × 50 cents) plus (8 weekly overtime hours × 50 cents). To do so would impose a double penalty upon the employer by requiring him to pay time and one-half for hours already paid for at time and one-half.
"(b) Suppose an employee paid $1 an hour works the following schedule:
M T W T F S S
Hours 0 8 8 8 8 8 8
Pay under union agreement $0 8 8 8 8 8 12
"This case is no different from the preceding case, and in accordance with our opinion, the payment of $52 to which the employee is entitled under the union agreement will satisfy the requirements of section 7.
"It has been urged upon us that a time and one-half rate for work on Sunday and holidays is not an overtime rate at all but is merely a straight-time rate for such days. The straight-time rate is higher because work on Sundays and holidays is more onerous than work on ordinary work-days. If this suggestion were adopted the employee must be considered as being employed at two different rates during the week and his regular rate of pay and the overtime compensation due him would be computed in accordance with the interpretation set forth in paragraph 14 of the bulletin. However, it is our opinion that generally work on Sundays and holidays may properly be considered as overtime work and the interpretation set forth herein may be considered applicable.
"Section 71. The same principles expressed in the foregoing opinions would, likewise, apply where a State or Federal law calls for the payment of overtime or other special compensation which is not required by the Fair Labor Standards Act. They would also apply where an employer customarily pays overtime or other special compensation which is not required by the act."
Defense under Section 9.
Section 9 of the Portal-to-Portal Act required by its specific terms that defendant plead and prove that the omission to pay plaintiffs according to the Fair Labor Standards Act was (1) in good faith (2) in conformity with and (3) in reliance upon (4) any administrative regulation, order, ruling, approval, or interpretation of any agency of the United States or any administrative practice or enforcement policy of any such agency with respect to the class of employers to which defendant belonged, and thus placed the burden of proof specifically upon defendant, which it had to sustain with respect to each of the four foregoing requirements. Jackson v. Northwest Airlines, D.C., 76 F.Supp. 121; Burke v. Mesta Mach. Co., D.C., 79 F.Supp. 588, 611.
*686 "The test of good faith is an objective one, and not the actual state of mind of the employer." "`Good faith' cannot be established as a simple fact. It is an ultimate fact a conclusion to be drawn from all the circumstances." Although in some instances it has been held to denote honesty of purpose, or the actual existing state of mind without regard to what it should be from given standards of law or reason, in other instances it has been defined as honesty of intention, and freedom from knowledge or circumstances which ought to put the defendant employer on inquiry. "The defense of `good faith' is intended to apply only where an employer innocently and to his detriment followed the advice as it was laid down to him by governmental agencies without notice that such interpretations were claimed to be erroneous or invalid." Burke v. Mesta Mach. Co., supra; Colket v. St. Louis Union Trust Co., 8 Cir., 52 F.2d 390; In re Vater et al., D.C., 14 F.Supp. 631; Siano v. Helvering, D.C., 13 F.Supp. 776; Reid v. Day & Zimmerman, D.C., 73 F.Supp. 892; Jackson v. Northwest Airlines, D.C., 76 F.Supp. 121, 126; Gustafson v. Fred Wolferman, Inc., D.C., 73 F.Supp. 186, affirmed as to defense under Sec. 9, Fred Wolferman, Inc. v. Gustafson, 8 Cir., 169 F.2d 759. Interpretative Bulletin, Portal-to-Portal Act, 29 Code Regulations, Chapter 5, Part 790, Sec. 790.19, issued November 1947.
"In good faith." "Generally, as derived from equity, this phrase connotes a state of mind characterized by honesty of purpose, freedom from intention to be unfair, and the absence of known or readily discoverable facts which would lead to further inquiry." Kam Koon Wan v. E. E. Black, Ltd., D.C., 75 F.Supp. 553, 561.
"Mere proof that officials in Army Ordinance Department who were supervising operations of employer's war plant under a cost-plus-a-fixed-fee contract examined employer's payroll in which certain employee was listed as exempt executive did not establish an `administrative approval', within Portal-to-Portal Act, so as to relieve employer from liability to such employee for overtime compensation under Fair Labor Standards Act." Day & Zimmermann v. Reid, 8 Cir., 168 F.2d 356.
In Glowienke v. Hawaiian Dredging Co., D.C.Ill.1948, 84 F.Supp. 678, it was held that acts of employer in asserted reliance on official approval of pay-roll classifications and on a Navy Department interpretation that cost-plus-fixed-fee contractors were not subject to the Fair Labor Standards Act did not constitute reliance in good faith so as to relieve employer of liability under Sec. 9 where, in spite of such rulings and interpretations by the naval officer in charge at the continental plants of defendant and of a ruling of the Bureau of Yards and Docks of the United States Navy, the employer had secured no ruling from the Wage and Hour Administrator as to the applicability of the Fair Labor Standards Act to employees at its continental plants, or its non-applicability, and also, there were rulings of the Wage and Hour Administrator as well as court decisions conflicting with the approval and interpretation given by the naval officer and the Bureau of Yards and Docks.
In Burke v. Mesta Mach. Co., supra, the court stated that it appeared to it that a company of such size would have had in its employ trained counsel or individuals qualified to consider labor relations policies, and to keep informed from day to day as to the various administrative rulings, interpretations, regulations, or policies which were promulgated and adopted by the Administrator of the Wage and Hour Division whose duty it was to administer the Fair Labor Standards Act. And it was emphasized that inquiry could have been made to the Administrator and/or the Secretary of Labor as to whether or not any policy, ruling, regulation, or interpretation had been issued which would govern or contain any information as to whether or not the particular employer was obligated to include an incentive bonus which he was paying in the computation of overtime payment to be made to his employees.
In Darr v. Mutual Life Insurance Company, 2 Cir., 169 F.2d 262, the Court held on supported evidence that it had been the administrative practice and enforcement policy *687 of the Wage and Hour Division not to enforce the provisions of the Fair Labor Standards Act in the insurance business before December 6, 1940, the date upon which the employer voluntarily complied with such provisions; that enforcement of the statute in the insurance business was not attempted by such agency before February 10, 1942; that in failing to make payment for overtime worked as distinguished from rest period time for which plaintiffs sued, defendant, in addition to acting in good faith in the belief based upon reasonable grounds that the statute did not cover its employees, had also acted in conformity with and in reliance upon the above-mentioned administrative practice and enforcement policy of the Wage and Hour Division.
"Section 9 of the Portal-to-Portal Act is mandatory and much broader in scope than Section 11, which merely clothes the Court with discretionary control over the item of liquidated damages. Section 9 is a bar to the action if the employer actually pleads and proves that his omission was in good faith in conformity with and in reliance on any administrative regulations or ruling of any agency of the United States." Rogers Cartage Co. v. Reynolds, 6 Cir., 166 F.2d 317, 3 A.L.R.2d 1090, 1185.
In Bruescke v. Joshua Hendy Corp., D. C.,1 3 A.L.R.2d 1191, the court held that defendant had established its defense under section 9. In this case it appeared that plaintiffs had been employed as hull surveyors upon a monthly salary basis up to an early date in 1944; that on said date, defendant changed plaintiffs to an hourly wage basis, and from that date until their respective employment terminated, plaintiffs continued on an hourly wage rate basis that reduced their pay rate, but had received one and a half times their respective hourly wage rate for all hours worked over forty hours in any work week; that defendant was building ships for use in World War II by the United States on a cost-plus-fixed-fee contract with the United States Maritime Commission, an agency of the United States; that the changes in plaintiff's monthly salary to an hourly wage basis, as aforesaid, although resulting in an actual wage reduction, were not to circumvent the Fair Labor Standards Act but that defendant had made this rate reduction in good faith and for the purpose of maintaining a balanced wage and salary level at its shipyard; that defendant pleaded, and also proved, that the National War Labor Board, Shipbuilding Commission, rendered a formal written ruling (after defendant's application to said Commission) authorizing defendant to change plaintiff's method of pay to the hourly wage rates of pay that defendant paid after the date specified, that this ruling was rendered and had been delivered to defendant some weeks earlier, that subsequent to receipt thereof by defendant it received the approval of the United States Maritime Commission to effect the pay conversion, as aforesaid, as to plaintiffs, and that defendant thereafter and in good-faith reliance upon the said ruling of the National War Labor Board, Shipbuilding Commission, and the approval of the United States Maritime Commission, had effected and changed plaintiffs to the hourly wage rates as approved by said agencies of the United States.
In Wells v. Radio Corp. of America, D.C., 77 F.Supp. 964, 967, the Court held that proof of its good faith was overwhelming, not a scintilla of credible evidence was adduced to the contrary, and the involved and lengthy evidence revealed no single suspicious circumstance or other proof of an attempt to deprive an employee of his just compensation by use of an inaccurate and high-sounding title for a purely routine or manual job. Hence the company had acted in good faith, even though it may have been mistaken in classifying the employees as exempt on the ground that they were bona fide executive or administrative employees. In this case investigators of the Wage and Hour Division of the Department of Labor made inspections to determine whether the employees were being and had been properly paid and to check the classification of employees as exempt or not exempt. The result of this investigation was that certain recommendations were made relative to amounts found for one reason or another to be due to various employees. The company made these payments. No such recommendation *688 was made concerning any of these plaintiffs. The Court then said: "As a practical matter the Company executives may well have regarded this investigation and its result as more or less giving the plant a clean bill of health. There is, however, no proof of any `regulation, order, ruling, approval or interpretation,' within the meaning of Section 9 of the Portal-to-Portal Act of 1947."
"The words `administrative regulation, order, ruling, approval, or interpretation' must be read in the light of the familiar principle of ejusdem generis. It would not be contended that an inspector of the Wage and Hour Division could issue an administrative regulation; in all administrative agencies, that is a function of the head of the agency. On the same principle, I think that an employer, to come within the protection of an administrative approval or interpretation, must have followed the familiar routine of submitting a particular problem to the head of the agency for a ruling or opinion. An opinion letter of the head of the agency or his counsel, ruling on the question, interpreting the section of the statute in question in the light of the facts of the employer's situation, or approving the employer's interpretation of the law, would come within the meaning of this section. I think nothing less will do. Likewise, the action of a few inspectors does not establish an administrative practice or enforcement policy." Bauler v. Pressed Steel Car Co., D.C.N.D. Ill., 81 F.Supp. 172, 176; Fred Wolferman Inc. v. Gustafson, 8 Cir., 169 F.2d 759; Burke v. Mesta Mach. Co., supra; Central Missouri Tel. Co. v. Gonwell, 8 Cir., 170 F.2d 641; Welles v. Radio Corp., D.C., 77 F.Supp. 964; Semeria v. Gatto, Sup., 75 N.Y.S.2d 140; Reid v. Day & Zimmerman, D.C. Iowa 1947, 73 F.Supp. 892, affirmed, Day & Zimmermann v. Reid, 8 Cir., 168 F.2d 356.
See also International Longshoremen's Association v. National Terminal Corp. D.C., 50 F.Supp. 26, affirmed in Cabunac v. National Terminal Corp., 7 Cir., 139 F.2d 853.
"The definition of overtime premium thus becomes crucial in determining the regular rate of pay. We need not pause to differentiate the situations that have been described by the word `overtime.' Sometimes it is used to denote work after regular hours, sometimes work after hours fixed by contract at less than the statutory maximum hours and sometimes hours outside of a specified clock pattern without regard to whether previous work has been done, e. g., work on Sundays or holidays. It is not a word of art. See Premium Pay Provisions in Selected Union Agreements, Monthly Labor Review, U. S. Department of Labor, October 1947, Vol. 65, No. 4. Overtime premium has been used in this opinion as defined in note 3.* It is that extra pay for work because of previous work for a specified number of hours in the workweek or workday. It is extra pay of that kind which we think that Congress intended should be excluded from computation of regular pay. Otherwise the purpose of the statute to require payment to an employee for excess hours is expanded extravagantly by computing regular rate of pay upon a payment already made for the same purpose for which § 7(a) requires extra pay, to wit, extra pay because of excess working hours. Accordingly, statutory excess compensation paid for work in excess of forty hours should not be used to figure the regular rate. Neither should similar contract excess compensation for work because of prior work be used in such a calculation. Extra pay by contract because of longer hours than the standard fixed by the contract for the day or week has the same purpose as statutory excess compensation and must likewise be excluded. Under the definition, a mere higher rate paid as a job differential or as a shift differential, or for Sunday or holiday work, is not an overtime premium. It is immaterial in determining the character of the extra pay that an employee actually has worked at a lower rate earlier in the workweek prior to the receipt of the higher rate. The higher rate must be paid because of the hours previously worked for the extra pay to be an overtime premium." *Note: "Overtime Premium. extra pay for work because of previous work for a specified number of hours in the workweek or workday whether the hours are specified *689 by contract or statute." Bay Ridge Operating Co. v. Aaron et al., 334 U.S. 446, 465, 68 S.Ct. 1186, 1197, 92 L.Ed. 1502.
Defense under Section 11.
"The `good faith' required to entitle an employer to avail himself of the provisions of Section 11 has reference to something different from the good faith of employers in actually believing that an employee was exempt from the provisions of the Fair Labor Standards Act." Burke v. Mesta Mach. Co., supra; Reid v. Day and Zimmerman, D.C., 73 F.Supp. 892, affirmed, Day & Zimmermann v. Reid, 8 Cir., 1948, 168 F.2d 356. Note 3 A.L.R.2d 1205.
The mere fact that a defendant erred in applying the facts under the law does not deprive it of the relief offered by Section 11, since that section by its very nature and existence contemplates relief to employers who erred in determining their wage and hour liabilities. A defendant may have been acting in good faith where its theory was not entirely unreasonable and that will be regarded as shown by the fact that a Governmental agency had adopted defendant's conclusion, even though rather hesitatingly and rejecting some of its premises and officials of the agency and officers of the Air Corps with whom the defendant was dealing had similarly indicated their opinion. Because defendant's approach to the question may have been unsound as a matter of law does not make the ground it relied upon unreasonable. Jackson v. Northwest Airlines, D.C., 76 F.Supp. 121.
A "good faith" defense need not rely on a regulation or order issued by the Wage and Hour Administrator or the Secretary of Labor, for, in order to come within the provisions of Section 11, it can be based on any administrative action of any one of scores of governmental agencies and one way of showing that there were "reasonable grounds" for belief in the lawfulness of a certain action would be for an employer to prove that his conduct was influenced by some authoritative administrative or judicial ruling in a similar situation. Burke v. Mesta Mach. Co., supra.
Facts
Defendant's former general manager testified that he worked for defendant company from 1934 to 1941 and participated in the formation of the collective bargaining agreements; that the payment practices under the agreements were established before the Fair Labor Standards Act was passed and that after the Act became effective they followed the same pattern and the same or practically the same scale of wages; that the steamship committee had been in existence many years before the passage of the Fair Labor Standards Act and that the collective bargaining agreement of defendant with the workers was practically the same as the collective bargaining agreement of the other shipping companies. He also testified that Mr. Prudencio Rivera Martinez obviously participated in all such negotiations, as at the time of the negotiation of the collective bargaining agreements, he (Rivera Martinez), was Commissioner of Labor of the Insular Government and checked all contracts. This witness does not remember ever writing or consulting with the Wage and Hour Division or the Regional Attorney as to whether they were complying with the law.
The evidence discloses that the defendant consulted and obtained the opinion of counsel as to each collective bargaining agreement and that these agreements were negotiated jointly with the other shipping companies; that the defendant consulted his attorney as to the contract and the Interpretative Bulletin No. 4 and received the opinion that the higher rates provided in the collective bargaining agreement for extraordinary hours were overtime which could be properly credited against the statutory extra compensation due under Sec. 7 of the Fair Labor Standards Act. It also appears that the other companies consulted their attorneys and the defendant and the other shipping companies consulted each other and all received the same opinion. The defendant relied upon his counsel's opinion and relied upon Bulletin No. 4 after studying it and believed that payments made under the contract complied with the statute. The evidence further discloses *690 that the shipping companies including the defendant had a committee of head officials that met frequently to discuss their common problems, questions of policy and exchanged information regarding opinions and advice of their respective attorneys and questions of the application of the Act to the collective bargaining agreements.
Mr. Rivera Martinez, the President of the committee on claims or stevedores, testified that in 1943 the Administrator of the Department of Labor, Wage and Hour Division, Mr. Walling was in Puerto Rico and that he consulted him with reference to the collective bargaining agreements and asked Mr. Walling whether the agreements were in conformity with the law and that Mr. Walling advised him that the agreements were not in conformity with the law.
Ramon Rodriguez Sanchez, a certified public accountant, testified that he had been employed by the Bull Insular Line since 1920 and handled questions of wages and hours for the company and intervened in the stevedoring contracts; that the contracts for stevedoring are uniform in San Juan, all shipping companies following the same policy with regard to the payment of stevedores and paid in conformity with the collective bargaining agreement; that the company consulted counsel as to the application of the Fair Labor Standards Act to these contracts and obtained an opinion from their attorneys that they were complying with the Act; that the Bull Insular Line and defendant were represented on the steamship committee wherein common labor problems were discussed and that the committee after obtaining the opinion of counsel and exchanging views and studying the Bulletin were of the opinion that the payment of overtime in accordance with the agreement was in compliance with the law; that the interpretation placed on Bulletin No. 4 by the steamship committee was that any overtime compensation paid to an employee was credited to the employee in the computation of time worked. The witness further testified that the steamship committee came to this conclusion and to their interpretation of Bulletin No. 4 about the time that the Wage and Hour law went into effect and prior to the time that they received the opinion from their attorneys. In short, that the opinion of the attorneys was given in 1943 and that way back in 1938 they had come to the conclusion that the agreements covered the requirements of the law.
This witness testified that inspectors from the Wage and Hour Division investigated their payrolls and although the inspectors requested that restitution be made as to certain employees such as checkers, foremen and motormen, the company was never requested to make any restitution for any back pay due to stevedores. This witness, however, testified that the matter of investigations by Wage and Hour Inspectors was never discussed with the steamship committee. That sometime subsequent to the inspection, the company discussed with the Wage and Hour Administrator the matter of the restitution to stevedores and that the same were left pending since a complaint had been filed in Court and the matter was awaiting the court's decision. This witness also testified that the pay practice and policy of the shipping companies were the same prior to and after the enactment of the Fair Labor Standards Act. This witness testified that he did not remember receiving letter dated June 22, 1943 from Mr. Russell Sturgis and he was never told by the Wage and Hour Division that their company was complying with the Fair Labor Standards Act and that after his company received the opinion from their attorneys, they never inquired further. (Restitution was made in the case of checkers, foremen and motormen.) This witness further testified that he agreed with the opinion of Mr. Herrick that the higher rate of pay under the collective bargaining agreement for handling cargo of a special matter was incentive pay and not a wage and that he considered it incentive pay in the sense that it affects their health, that is, when they handle cargo such as fertilizer, lumber and similar cargo.
Defendant's present manager testified that he came to Puerto Rico in September 1942 and participated in negotiations for the 1943 collective bargaining agreement and that when the War Shipping Administration took over steamship operations in 1942, defendant operated as agents of the War Shipping Administration and all documents *691 were thereafter signed "War Shipping Administration, per Waterman Steamship Co., Agents." The standard form of so-called "War Ship. Stev." for stevedoring operations was extended to cover Puerto Rico by letter of the War Shipping Administrator and the contract provided that all wages paid for stevedoring were subject to the approval of the War Shipping Administration. Copies of the collective bargaining agreement were sent to the home office of the defendant in New York and forwarded from there to the War Shipping Administration in Washington which received them without comment. Thereafter, wage bills for stevedoring operations and copies of payrolls covering stevedoring were regularly submitted to the War Shipping Administration and approved for payment and audited by the examiners. No question was ever raised as to the wage scales upon which the bills were paid, unless there was an error of calculation. Defendant never discussed methods of payment or differentials with the War Shipping Administration representative and never wrote the War Shipping Administration for its views or inquired of the territorial representative, asking an opinion as to whether the wage payments under the collective bargaining agreements satisfied the provisions of the Act. Neither did the defendant ask officials of the Wage & Hour Division or any other Federal agency about this particular matter. The evidence further discloses that inspectors of the Wage & Hour Division investigated defendant's payrolls including payment to stevedores during January and February 1943. Defendant's present manager testified that he came to the conclusion that the company was complying with the law partly on advice of counsel and on the fact that the other steamship companies, acting in concert signed the same kind of contract. The evidence further discloses that the defendant and the other steamship companies never formally consulted either the Administrator of the Wage and Hour Division or his territorial representative or his counsel about the matter of whether they were complying with the Act and no advice was ever given by the Administrator or his territorial representative that the pay practices of defendant complied or conformed with the law.
The parties stipulated that letter dated 22 June 1943, should be admitted in evidence with the following understanding: that said letter was prepared by the Wage and Hour Division in Puerto Rico to be sent to all the steamship companies in Puerto Rico; that in the ordinary course of office routine it was supposed to be sent to the steamship companies; that it actually was sent to and received by the Lykes Steamship Company but that the witness, Mr. Sturgis, cannot swear it was actually sent to all the other companies since the only company that acknowledged receipt was the Lykes Steamship Company. The parties stipulated that Mr. Thyvaert, the Manager of the Waterman Line and Mr. Naranjo, the second man in the company, have no recollection of ever having seen such a letter and that a search of their files reveals no such letter. Copy of said letter is as follows:
"To All Steamship Companies;
"We have received the following memorandum from the Administrator regarding method of computing overtime paid for longshoremen in Puerto Rico:
"I understand that these employees are working under an agreement which provides that the rates of pay shall be 55 cents an hour for work performed between 7:00 a. m. and 4:00 p. m., 77 cents an hour for work performed between 4:00 p. m. and 11:00 p. m., and 87 cents an hour for work performed between midnight and 6:00 a. m., with special rates for meal hours, Sunday, holidays and handling of certain kinds of cargo.
"It is my opinion that the rates above 55 cents an hour are not overtime rates but higher rates which are paid for working undesirable hours, or performing more undesirable work, and that they, in reality, are regular rates for the work performed."
Russell Sturgis
Territorial Representative
Under the special defense under Section 9, the defendant relies upon two propositions:
1. the acceptance by the War Shipping Administration of stevedoring bills of defendant *692 company without comment and the auditing of the payrolls of the defendant company and the fact that investigations were made by the Wage and Hour inspectors, and
2. defendant's reliance upon Interpretative Bulletin No. 4.
As to the first propostion the Court holds that under the authorities the fact that investigators of the Wage and Hour Division made inspections and ordered certain restitutions and that the War Shipping Administration audited the payrolls of the defendant company, did not constitute an administrative regulation, order, ruling, approval or interpretation of an agency of the United States or any administrative practice or enforcement policy of any such agency.
As to the second proposition the defendant relies upon Sections 13, 69, 70 and 71 of Interpretative Bulletin No. 4.
Interpretative Bulletin #4 originally issued contained paragraph 13 and was not changed in the 1940 amendment. Paragraphs 69, 70 and 71 were added by amendment of the Bulletin in July 1940.
Paragraph 13 provides that "extra compensation paid for overtime worked need not be included in determining the employees' regular hourly rate of pay."
Paragraph 14 provides that "if an employee, during a single workweek, is paid at two different rates of pay, his regular hourly rate of pay, on which time and one-half must be paid, is the average hourly rate for the week, computed by dividing the weekly earnings at both rates by the total number of hours worked in the week. For his overtime work the employee is entitled to a sum, in addition to such earnings, equivalent to one-half the hourly rate of pay, arrived at as indicated multiplied by the number of hours worked in excess of 40."
The Court in this case has held, however, that the higher rates of pay for hours classified as "extraordinary" hours in the collective bargaining agreement were regular rates and not overtime. Ferrer v. Waterman Steamship Corporation, D.C., 70 F. Supp. 1.
The Court adopted the following findings: that plaintiffs received the pay described in the agreements as pay for extraordinary hours if they worked any such hours regardless of whether they worked the regular hours or not; that plaintiffs worked any hours of day or night Sundays or holidays if work at such times was requested by the Company and that work of plaintiffs followed no particular pattern, there being many weeks in which they did not work and in the weeks they worked the hours worked for most of plaintiffs varied greatly; and that it was the desire of the shipping companies to utilize the services of stevedores during the so-called regular hours if possible but if business expediency demanded it they were worked the so-called extraordinary hours even though it was necessary to pay the stevedores a higher rate.
Also the Supreme Court of the United States has held in the Bay Ridge case that overtime premium [336 U.S. 446, 68 S.Ct. 1197] "is that extra pay for work because of previous work for a specified number of hours in the workweek or workday." Thus the "overtime" referred to in paragraph 13 of the Bulletin is the "overtime premium" as defined by the Supreme Court, or what may be termed as "true overtime," or bona fide overtime compensation.
Section 69 of the Bulletin refers to overtime compensation, as only the extra amount of compensation over and above straight time paid as compensation for overtime worked that is, for hours worked outside the normal or regular working hours. Section 69 refers also to "true overtime."
Subsections 1, 2 and 3 of paragraph 70 of the Bulletin illustrate that the overtime payments under a union agreement may be credited against overtime due under the Act, only where paid for hours over a fixed number previously worked.
Subsection (6) of paragraph 70 of the Bulletin provides "an agreement of employment calls for the payment of time and one half for all hours worked on a holiday or on Sunday."
In this case, however, the Court after setting out the scale of wages under the contract ruled as follows:
"A study of the above table shows that it bears no relation to hours in excess of forty *693 in any given week. It will also be observed that the hours for which the higher rate is paid are hours when most men would prefer to be eating lunch, or dinner, or at home asleep in other words, disagreeable hours. These hours are compensated for at a higher rate in the same manner that "special" cargo is compensated for at a higher rate than "general" cargo. Holidays of which a long list is included in the contracts, also are compensated for at a higher rate. Different rates in connection with "special" cargo are provided for work ashore and aboard. No one, I daresay, would contend that the extra or increased compensation for workers with "special" cargo could be considered as overtime."
Counsel for the defendants calls the Court's attention to letter dated June 30, 1948, issued by the U. S. Department of Labor, Wage and Hour Division, entitled "Statement of Wage-Hour Administrator on Effect of Decision in Longshoremen's Case." The pertinent paragraphs are as follows:
"Employers who have in the past paid time and one-half compensation for work because it was performed on Saturdays, Sundays, or holidays, or at hours actually "outside the normal or regular working hours" and have treated the extra pay as an overtime premium in good faith reliance on the interpretations of the Wage and Hour Division are in most cases protected by the Portal-to-Portal Act from any resulting back-wage liabilities, it was announced by Mr. Wm. R. McComb, Administrator of the Wage and Hour and Public Contracts Division, U. S. Department of Labor, in a statement of his views on the effects of the Supreme Court decision handed down in Bay Ridge Operating Co. v. Aaron and Huron Stevedoring Co. v. Blue.
"Mr. McComb added, however, that under the Supreme Court decision, employers could no longer follow the Administrator's Interpretations (expressed in paragraphs 69 and 70 of Interpretative Bulletin No. 4 and elsewhere) when extra payments are made because of the undesirable hours when the work is performed rather than because the hours are in excess of a specified standard. For the future, therefore, some employers will have to make necessary adjustments in their overtime pay practices in order to come within the scope of the Supreme Court opinion. The opinions expressed in paragraphs 69 and 70 of Interpretative Bulletin No. 4 are now withdrawn, Mr. McComb emphasized insofar as they relate to extra payments of the kinds above described."
As heretofore stated in this opinion paragraphs 69 and 70 of Interpretative Bulletin No. 4 have reference to situations in which "true overtime" or "overtime premiums" are paid. That is "overtime premiums" as defined in the Bay Ridge case. They do not concern with situations where premium compensation is paid as a shift differential, or because of disagreeable hours. If the Bay Ridge case expresses any disagreement with the Administrator of the Wage and Hour Division it could only be as to situations relating solely to extra compensation for work on Saturdays, Sundays or holidays, Interpretative Bulletin No. 4 did provide that premium payments made for work performed on Saturday, Sunday and holidays were presumed to be overtime payments and would be so considered by the Administrator. This was on the theory that work on such days should be considered as "compensation for overtime work, that is, for hours worked outside the normal or regular working hours." Therefore, there may be some merit in the belief that treatment as overtime of premium payments on Saturday, Sunday and holidays might have been made in good faith reliance upon the Administrator's position prior to the Bay Ridge case. However, the Bay Ridge case was not in disagreement with the Administrator in situations where premium compensation was paid as a shift differential. Thus the withdrawal of Section 69 and 70 from the Bulletin did not and could not apply to compensation for shift differential such as occurred in this case where stevedores were paid different rates of pay for working such hours as from 7:00 p. m. to 11:00 p. m. or from 11:00 p. m. to 12 M.N. or from 12:00 p. m. to 6:00 a. m.
The Administrator in Paragraphs 69 and 70 of Interpretative Bulletin No. 4 did not treat all premium compensation as overtime compensation, because as was *694 shown in this case the Administrator specifically stated that the collective bargaining agreement between the stevedores and the shipping companies in Puerto Rico did not in his opinion comply with the Fair Labor Standards Act. If it seems that the Bulletin was not altogether clear, the court may give the Administrator's interpretation controlling weight unless it is plainly erroneous or inconsistent with the regulation. Bowles v. Seminole Bridge Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700.
Defendant argues, however, that the June 22, 1943, letter is of little importance since even if sent out and received, it only antedated the filing of these suits by two or three months, and, therefore, it could not affect, in any event, any claims arising prior to June 1943. The record in these consolidated cases shows that the complaint in cause No. 3741 C. was filed on September 27, 1943. Causes Nos. 4034 C. and 4035 C. were filed on June 28, 1944. The periods covered by the complaint are as follows: for cause No. 3741 C. from September 27, 1940 to September 27, 1943; for causes Nos. 4034 C. and 4035 C. from May 15, 1941 to May 15, 1944.
Going now to the argument that the evidence discloses that the defendant relied in good faith upon an administrative regulation, order, etc., under Section 9 prior to June 22, 1943.
Upon the question of "good faith" under Section 9 it must be remembered that defendant negotiated the same kind of collective bargaining agreements before the Fair Labor Standards Act was passed and continued the same kind of contracts after the Act was passed. After the Fair Labor Standards Act became effective, Interpretative Bulletin No. 4 was issued. Therefore, if the defendant relied upon Interpretative Bulletin No. 4 in 1938 and in good faith believed that he was complying with the Act, from 1938 to 1940 the defendant relied exclusively upon section 13 of the Bulletin as sections 69, 70 and 71, were not included in the Bulletin until 1940.
The next question is when did the defendant consult counsel and obtain his opinion that the collective bargaining agreements conformed to the Fair Labor Standards Act. Defendant's former manager (1934-1941) Mr. Lugo Vina is indefinite on this point. He states generally that he consulted his attorney and considered the application of the Fair Labor Standards Act to the stevedores contracts. Although this witness testified when asked a general question that during the time he represented the defendant in Puerto Rico he believed in good faith and relied on Interpretative Bulletin No. 4, and on advice of counsel that payments under the contract complied with Section 7 of the Act, when asked specifically as to when he consulted counsel after October 24, 1938 replied: "I cannot remember the day. It would be impossible. Simply because I do not remember when there was a written opinion or not." Later Mr. Lugo Vina testified that he read Interpretative Bulletin No. 4 when it came out and consulted his attorney in this first instance. but he cannot remember when he spoke to his attorney about this Bulletin whether it had examples of different rates.
Upon this point defendant's present manager who came to defendant company in September 1942, testified that he took part in the negotiations of the 1943 collective bargaining agreement and became connected with the steamship committee. Upon becoming manager he looked into the stevedores' contracts, consulted his attorney, read parts of Bulletin No. 4, relied on counsel and relied on the Bulletin and believed that the payments were in proper form. This witness further testified that although his attorney's opinion was not in writing, his impression that the collective bargaining agreement for 1943 complied with the law was based partly on advice of his attorney and partly on the fact that the other steamship companies acted in concert signing the same kind of an agreement. This witness when asked specifically as to whether he acted partly on his own judgment, replied: "I did not have any judgment in the matter. I was not aware of the law in Puerto Rico and could not use my own judgment."
Two other witnesses, representatives of two other shipping companies, testified as to when they consulted counsel. These witnesses are Ramon Rodriguez Sanchez, Auditor of the Bull Insular Line and G. Santa O'Neill, Certified Public Accountant of the N. Y. and P. R. Steamship Company. *695 Ramon Rodriguez Sanchez testified that he was employed by the Bull Insular Line for 28 years and was a member of the steamship committee and read Bulletin No. 4. He testified further that his opinion and the steamship committee's opinion after consulting counsel was that the contracts complied with the Fair Labor Standards Act. He states, however, that his company obtained counsel's opinion in 1943, "and way back in 1938 we reached the conclusion that our agreements covered the requirements of the law."
G. Santa O'Neill, auditor for the N. Y. and P. R. Steamship Company testified that he had been with his company for 24 years, his company consulted counsel about two months before the Act went into effect and his company's opinion after consulting their attorney was that they were complying with the law.
In this case the question is when did the defendant consult his attorney and obtain an opinion that the collective bargaining agreements complied with the law and not when did the Bull Insular Line and the N. Y. & P. R. Steamship Company consult counsel. The theory upon which the testimony as to the acts and doings of other steamship companies was admitted, was that the steamship companies acted in concert. However, as to when each company consulted counsel, that is a different matter as the companies consulted counsel at different times. Even so the witness for the Bull Insular Line says that he, and the steamship company committee, of which defendant was a member, came to the conclusion way back in 1938 that the collective bargaining agreements complied with the act, whereas the Bull Insular Line did not consult counsel until 1943.
Thus between 1938 and 1940 the steamship companies relied exclusively on Section 13 of the Bulletin and the evidence clearly shows that the steamship companies came to the conclusion that they were complying with the Act at the time the Act was passed in 1938.
In 1940 paragraphs 69, 70 and 71 were added to Interpretative Bulletin No. 4, therefore, from 1940 to June 22, 1943 the defendant undoubtedly relied upon sections 13, 69, 70 and 71 of the Bulletin.
There is a very serious doubt in the Court's mind as to whether Interpretative Bulletin No. 4 clearly and unmistakenly support the construction placed upon them by the defendant to the effect that Interpretative Bulletin No. 4 sustained and approved the pay practice of the defendant under the collective bargaining agreement. It is more reasonable to believe that the various provisions of the Bulletin and the factual situation with which the defendant was confronted and which facts were not clearly and completely identical with the examples set out under Paragraph 70 of the Bulletin, were sufficient to put the defendant upon further inquiry.
The evidence discloses (a) that collective bargaining agreements were negotiated between plaintiffs and defendants both before and after the Fair Labor Standards Act was passed and that the contracts followed the same general pattern;
(b) that the defendant secured no ruling from the Wage and Hour Administrator or his territorial representative as to whether the pay practices or rates under the collective bargaining agreement complied with the Fair Labor Standards Act;
(c) that defendant and the other steamship companies in Puerto Rico consulted and advised regularly with each other on questions of policies, common problems, attorneys opinions, etc.
(d) that the defendant relied upon Interpretative Bulletin No. 4 and the opinion of their attorneys and other steamship company attorneys and came to the conclusion in 1938 that the collective bargaining agreement complied with the Fair Labor Standards Act.
(e) that in 1943 the Director of the Wage and Hour Division, Department of Labor, Mr. Walling, was in Puerto Rico and advised the President of the Committee on Claims for the stevedores, that the collective bargaining agreement between plaintiffs and the defendant company were not in conformity with the law, thus disclosing the position of the Administrator;
*696 (f) that on June 22, 1943 the Wage and Hour Division in Puerto Rico prepared a letter to be sent to all the steamship companies in Puerto Rico; that in the ordinary course of office routine it was supposed to be sent to all the steamship companies; that it was actually sent to and received by the Lykes Line in San Juan but that the district representative, Mr. Sturgis, cannot swear that it was actually sent to all the other companies since the only company that acknowledged receipt was the Lykes Line.
Under the evidence the Court finds that the defendant did have knowledge of the June 22, 1943 letter. Defendant says that they have searched their files and cannot locate it. However, the evidence is so strong that the shipping companies consulted and advised with each other on all common problems that it is impossible for the Court to say that the Lykes Line did not communicate the contents of the June 22, 1943 letter, particularly when it contained a ruling of such importance and which affected all the steamship companies in Puerto Rico.
This brings us face to face with Sections 13, 69 and 70 of Interpretative Bulletin No. 4 upon which defendant relies. The question arises: do paragraphs 13, 69 and 70 of the Bulletin clearly show on their face that they approve the pay practices under the collective bargaining agreement?
Section 13 of the Bulletin standing alone does not clearly show this. Besides as heretofore pointed out this section has reference to "overtime premiums" or "true overtime" as defined by the Supreme Court of the United States. As to sections 69 and 70 I cannot see how they can be construed to say that they clearly and unmistakenly approve the pay practices of the defendant under the agreements, except possibly as to Saturdays, Sundays and holidays.
It also argued that the defendant consulted his attorneys and the other shipping companies consulted their attorneys and that they advised that the collective bargaining agreement complied with the Act. How much weight should the Court give to the testimony on this particular point as a defense under Section 9? Certainly it cannot give it the same weight as it would give similar evidence under a defense under Section 11. It seems to the Court that under Section 9 the testimony that an employer obtained counsel's opinion can only be considered in a limited sense. This is so because the gist of the defense under Section 9 is "good faith in conformity with and in reliance on any administrative regulation, order ruling, approval or administrative interpretation of any agency of the United States or any administrative practice or enforcement policy of any such agency with respect to the class of employer to which he belonged."
We now come to the question of whether or not the defendant has shown to the satisfaction of the Court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that such act or omission was not a violation of the Fair Labor Standards Act. The evidence discloses: (a) that the collective bargaining agreements were negotiated both before and after the Fair Labor Standards Act was passed and that they followed the same general pattern, thus indicating that the contracts were not drawn up with the express purpose of circumventing the provisions of the act; (b) that the defendant relied upon the provisions of Interpretative Bulletin No. 4 and the opinion of his attorney and the opinion of the other steamship companies' attorneys to the effect that the collective bargaining agreement complied with the Fair Labor Standards Act and although the Court has ruled that the construction placed upon Bulletin No. 4 by the defendant was unsound, nevertheless, it does not make the ground it relied upon reasonable; (c) that the defendant obtained the opinion of counsel as to each collective bargaining agreement and that these agreements were negotiated jointly with the other steamship companies in Puerto Rico; (d) that the defendant relied to a certain extent upon the fact that the Union themselves had submitted the contract and agreed to its terms.
The Court cannot escape the belief under the evidence, that defendant's actions were influenced to some extent by Interpretative *697 Bulletin No. 4 and the opinion of his attorney. And although the opinion of an attorney of itself may not be sufficient to constitute a defense, nevertheless it may bear upon the reasonableness of defendant's attitude. The divided opinion in the Bay Ridge case is evidence that the opinion of defendant's attorney and upon which defendant relied was not an unreasonable one.
Therefore, the Court is of the opinion that the defendant had reasonable grounds to believe that it was complying with the Fair Labor Standards Act and that good faith existed under Section 11 up to the 22nd day of June, 1943, but not thereafter. Therefore, exercising its discretion the Court will hold that no liquidated damages be awarded in this case, for the period prior to June 22, 1943.
Let a proper judgment be entered in conformity with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589894/ | 563 F.Supp. 797 (1983)
STATE OF MICHIGAN, DEPARTMENT OF SOCIAL SERVICES, Plaintiff,
v.
Richard S. SCHWEIKER, Secretary United States Department of Health and Human Services, Defendant.
No. G82-454 CA5.
United States District Court, W.D. Michigan, S.D.
May 25, 1983.
Robert N. Rosenberg, Asst. Atty. Gen., Lansing, Mich., for plaintiff.
Thomas Gezon, Asst. U.S. Atty., Grand Rapids, Mich., for defendant.
OPINION
BENJAMIN F. GIBSON, District Judge.
This case arises out of the State of Michigan's challenge to disallowances by the Department *798 of Health and Human Services (HHS) of federal financial participation (FFP) in payments that the State made to certain nursing homes for Medicaid services provided during the period October 1, 1978, through September 30, 1979.[1] During that period, the nursing homes were in the process of appealing determinations by the State that they no longer met the requirements for participation in the Medicaid program. On August 31, 1982, this Court granted plaintiff a preliminary injunction restraining the implementation of these disallowances. While specifically disclaiming any intention to indicate an opinion on the merits, the Court's Opinion of that date found a substantial threat of irreparable harm and held that plaintiff had "raised such substantial and difficult questions going to the merits as to make them a fair ground for litigation." The Court has now received the administrative record and the parties' briefs on cross-motions for summary judgment, oral argument has been heard, and the matter is ripe for disposition.
The State first received in April of 1979 notification of disallowances for the fiscal quarters ending in December of 1978 and March of 1979. The state then informed the affected nursing homes that their provider agreements would be terminated effective July 15, 1979. The homes promptly brought suit in state court and obtained an injunction requiring the state to continue their provider status and payments until they were afforded all their rights of appeal under state law. On April 30, 1980, the Health Care Financing Administration (HCFA) issued a formal notice of disallowance for the entire period at issue here. The state took an appeal of the disallowance to the Departmental Grant Appeals Board (GAB). The GAB considered substantially the same arguments as are raised here and on April 30, 1982 issued a seventeen-page, single-spaced, written decision (Number 290) which reversed in part but sustained approximately $4.2 of the original $5.5 million disallowance. The state then filed this action in July of 1982 seeking immediate relief.
The standard of review of agency decisions such as this requires this Court to determine whether the actions of the defendant were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The agency decision is entitled to a presumption of regularity, but the reviewing court is required to engage in a substantial inquiry. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Under this standard the Court must consider whether the agency decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. The ultimate standard of review is a narrow one and the Court is not empowered to substitute its judgment for that of the agency. Id. at 416, 91 S.Ct. at 823-24.
The central issue in this case is the interpretation of Program Regulation Guide November 11 (PRG-11). That provision restates the general rule that FFP may not be claimed for payments made by a state to a facility where the facility's provider agreement has expired or has otherwise been terminated, and then goes on to state this exception to the rule:
If, however, State law provides for continued validity of the provider agreement pending appeal, or if the facility is upheld on appeal and State law provides for retroactive reinstatement of the agreement, the agreement would not be considered terminated during the appeal period for *799 purposes of Federal financial participation for payments to the facility.[2]
The state argues that PRG-11's reference to "appeal" as construed in Maxwell v. Wyman, 478 F.2d 1326 (2d Cir.1973) means judicial review as well as administrative appeal and that FFP is therefore available pursuant to PRG-11 as long as a provider has an appeal of its decertification pending.[3] In Decision No. 290 the GAB rejected this argument and held that FFP during pending provider appeals is limited to a maximum of 12 months after expiration of certification.
The state challenges this application of PRG-11 on several grounds. The state contends that limiting FFP to a fixed period, shorter than that required for a final decision on appeal, is contrary to federal law and to the Michigan medicaid state plan; is arbitrary, unreasonable, and capricious; and is a violation of the constitutional doctrine of separation of powers. The state further contends that defendant should be estopped from disallowing FFP under the facts and circumstances of this case.
The state argues that the GAB's decision is arbitrary, unreasonable, and capricious in that a twelve-month limitation on the phrase "pending appeal" in PRG-11 is an arbitrary limit. The Court is of the opinion that, on the contrary, the interpretation is eminently reasonable in the context of the entire Medicaid program structure. As the GAB observed, the statute and regulations provide that FFP is available only to certified facilities; certification is time limited to 12 months or less; and certification is based on a determination that a facility meets Medicaid standards. The GAB went on to explain:
Michigan would have us overlook the statutory/regulatory requirement for periodic (i.e., at least annual) inspection (survey) and certification. Congress made this an express precondition for federal payment and a facility which has met the certification requirement is still required to meet it again in the succeeding 12 months. It follows that the State should not be entitled to FFP for payments to a decertified facility for more than 12 months without a new survey and determination on certification, solely because the facility's appeal has not been resolved. To do as Michigan asked would entitle the State to FFP an indefinite period for a decertified facility even though a facility which had met the standards and had been certified would have to be recertified within 12 months.
Decision No. 290, p. 10. The Court finds that defendant's interpretation is clearly a reasoned decision "based on the relevant factors."
The state argues that defendant lacks the authority to disallow the FFP at issue here absent a duly promulgated regulation. The state emphasizes that the agency indicated an intention to address issues concerning the "effect State laws and court injunctions against States which continued State payments to facilities or extended their provider agreements throughout the hearing should have on Federal Medicaid payments." 44 Fed.Reg. 9749 (Feb. 15, 1979). Although at that time the HCFA Administrator intended to address those issues in a new Notice of Proposed Rulemaking, the state points out that it has not even yet done so. The state contends that the policy giving rise to the disallowance taken by defendant should have been implemented pursuant to § 4 of the Administrative Procedure Act.
The Court is of the opinion that this case involves an instance of quasi-adjudication, not rulemaking. The GAB issued its Decision No. 290 after considering briefs and the agency record, and after holding a hearing at which witnesses testified and exhibits were introduced. The Decision addressed a particular controversy involving *800 one state over a specific period of time in the past. See generally 2 K. Davis, Administrative Law Treatise §§ 7:2-7:3 (2d ed. 1979). Accordingly, there was no need to proceed by way of § 4 of the A.P.A. Even if this were an instance of rulemaking, it would likely fall within the exception of 5 U.S.C. § 553(b)(A) and (d)(2) dealing with interpretive rules. See Chamber of Commerce of United States v. O.S.H.A., 636 F.2d 464 (D.C.Cir.1980).
The state contends that the disallowance at issue violates the Title XIX state plan, and that because HCFA approved the plan it is obligated under "the law of contracts" to reimburse the state for payments made to nursing homes in an appeal status. The GAB addressed this argument as follows:
We find that the State has failed to show any connection much less the one it claims between the State plan amendment and provider appeals.
As counsel for HCFA brought out in cross examining Mr. Allen, neither the subject nor the content of the amendment dealt with provider appeals. Tr., pp. 83-88. The State's witness testified that by reference to use of the same appeals procedure the amendment necessarily incorporated the entire provider appeals process, prompting counsel for HCFA to question whether that logic was not "a little circular."
. . . . .
These circumstances, in addition to the wording of the amendment itself, constitute "substantial evidence that the State's interpretation is unsupportable."
Decision No. 290 at 5. The court agrees. The state's entitlement to FFP is more appropriately characterized as statutory rather than contractual in nature; as such, the GAB's reasonable interpretation of the Medicaid statute and regulations appropriately defines the scope of that entitlement.
The state argues that the disallowance effectively overrules Maxwell and therefore violates the constitutional doctrine of separation of powers. The GAB distinguished Maxwell in this manner:
The Court's actions and words in the second Maxwell decision must be read in light of its effort to ensure that the State would not suffer financial loss for carrying out the Court's order in the first Maxwell decision. The Court was impressed that the State had "demonstrated good faith compliance" with the court's order and "acted with due despatch" on the provider appeals. 478 F.2d at 1328. Michigan has not demonstrated in this appeal that it always moved with similar urgency to adjudicate provider appeals. Noting the Maxwell court's repeated concern with expeditious handling of provider appeals, we do not agree that the Maxwell court would have directed HEW to pay FFP under the circumstances here. In Maxwell, the court was dealing with what it found was an arbitrary line HEW had attempted to draw between administrative and judicial review. Here, no such distinction has been suggested and the 12 month limitation Michigan complained of merely treats decertified facilities on appeal the same as certified facilities. To do otherwise would be arbitrary indeed.
Even assuming that the Second Circuit might hold that Maxwell is precedent for a court in that Circuit to order HEW to pay FFP during the pendency of a provider appeal no matter how long administrative and judicial review might take, it does not follow that we are authorized, much less bound, to apply that precedent in Michigan.
Decision No. 290 at 11-12. The GAB had earlier noted that "the circumstances here" involved "facilities which had not been certified for varying periods ranging from four to seven years." The GAB went on to offer an additional distinction:
We note also that in August 1973, subsequent to the second Maxwell decision, HEW promulgated a regulation codified as 45 CFR 205.10(b)(3). That regulation limited FFP for payments made in accordance with a court order to such payments as are "within the scope of Federally aided assistance programs." In Ohio and subsequent decisions, the Board held *801 that language to mean that for decertified facilities on appeal, as for certified facilities, FFP was available for a maximum additional 12 months. We think it is likely that if the Maxwell court had been confronted with a timely application of 45 CFR 205.10(b)(3), it might have decided that case differently.
Id. The Court is persuaded that the GAB gave careful consideration to the Maxwell opinions and drew appropriate distinctions from those cases. The state attempts to read those decisions for more than they are worth, and the Court finds that the state's argument in this respect lacks merit.
Finally, the state contends that defendant should be estopped from implementing the disallowance. Once again, the GAB carefully considered this argument before rejecting it with a well-reasoned explanation. The GAB concluded:
We conclude that the Agency is not estopped from taking this disallowance. We are not persuaded that there was affirmative misconduct by any federal official(s) which induced the State to continue to pay these facilities. Rather, we find that the State chose to continue these facilities in an active provider status in its implementation of State law and administrative procedures despite confusion concerning the availability of FFP. The State was certainly aware that the availability of FFP to facilities pending appeal was far from clear, given the proposed rules on this issue in January of 1977 and the letters cited by the Agency that the State received in 1977 and 1978 which state the Agency's position. We find that the State was not lured into making these payments in reliance on the certainty of FFP.
Decision No. 290 at 7. This Court agrees that it was far from clear to the state at the time it made payments to the affected nursing homes that FFP would be available. The state's claim of reliance is belied at least in part by the fact that the state was under court order to continue the payments. Moreover, the "absence of clear policy guidance concerning PRG-11" did not rise to the level of misconduct sufficient to support an estoppel against the government. See Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); Community Health Services v. Califano, 698 F.2d 615 (3rd Cir.1983); State of New Jersey v. Department of Health and Human Services, 670 F.2d 1284 (3rd Cir.1982).
For the reasons stated, the Court concludes that the disallowance at issue was fully in accord with applicable law, and was not arbitrary, capricious, or an abuse of discretion. Accordingly, the injunction of August 31, 1982 is dissolved, and defendant's motion for summary judgment is granted.
NOTES
[1] To qualify for FFP under Title XIX of the Social Security Act, a state must have a plan requiring periodic inspections (surveys), a determination that a facility (provider) meets applicable requirements (certification), and an agreement with the provider (provider agreement) that it will keep the necessary records and furnish them to the state upon request. 42 U.S.C. 1396a(a)(19), (26), (27), (31), (33), and (36). Implementing regulations require surveys at least every 12 months, make the period of certification coterminous with that of the provider agreement, and generally limit that term to 12 months or less. 42 CFR 431.107, 442.12, 442.15 (1978-1979); 42 CFR Part 449 (1977); and 45 CFR Part 249 (1970-1976).
[2] In 1973 the Secretary of HHS issued an interpretation of PRG-11 as authorizing continued FFP "if State law or judicial action requires that a provider agreement remain in force during the course of an appeal."
[3] Defendant has not directly challenged the state's claim that PRG-11 has the force and effect of a regulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3036473/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2718
___________
Willie W. Bradshaw, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Bill Hedrick, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: December 6, 2004
Filed: December 9, 2004
___________
Before MORRIS SHEPPARD ARNOLD, MURPHY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Federal inmate Willie Bradshaw appeals from the final judgment entered in the
District Court for the Western District of Missouri dismissing without prejudice his
28 U.S.C. § 2241 petition and denying his motion to proceed in forma pauperis. In
his habeas petition, Mr. Bradshaw argued that the United States Parole Commission
(the Commission) erred in determining his reparole by not crediting him for time
served on a previous sentence. We grant Mr. Bradshaw in forma pauperis status, and,
for the reasons discussed below, we affirm the dismissal of Mr. Bradshaw’s section
2241 petition.
Federal courts lack jurisdiction to review substantive decisions of the
Commission. See Jones v. United States Bureau of Prisons, 903 F.2d 1178, 1183 (8th
Cir. 1990). The Commission’s determination regarding Mr. Bradshaw’s reparole was
substantive, see Wajda v. United States, 64 F.3d 385, 388 (8th Cir. 1995)
(determination regarding term of imprisonment within the reparole guideline range
is substantive and unreviewable), and thus we conclude that the district court lacked
jurisdiction over Mr. Bradshaw’s habeas petition.
Accordingly, we affirm. See Miller v. Benson, 51 F.3d 166, 170 (8th Cir.
1995) (appeals court may affirm on any ground supported by record).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1646438/ | 9 So.3d 583 (2007)
DARRIAN LEON LAWSON
v.
STATE.
No. CR-06-0567.
Court of Criminal Appeals of Alabama.
May 18, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/754780/ | 145 F.3d 972
UNITED STATES of America, Appellee,v.Dewayne WRIGHT, Appellant.
No. 97-2869.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 18, 1997.Decided May 29, 1998.
David R. Stickman, Assistant Federal Public Defender, Omaha, NE, argued, for Appellant.
Michael P. Norris, Assistant U.S. Attorney, Omaha, NE, argued, for Appellee.
Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.
BEAM, Circuit Judge.
1
Dewayne Wright was tried and convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He appeals, challenging (1) the district court's1 denial of his motion to suppress, (2) the court's failure to compel disclosure of the identity of the confidential informant, (3) certain evidentiary rulings, and (4) his sentence of 120 months' imprisonment. We affirm.
I. BACKGROUND
2
On April 10, 1996, Officer Adam Kyle of the Omaha Police Department received information from a confidential informant regarding a purchase of crack cocaine that had allegedly taken place in an apartment located at 2214 Florence Boulevard. The informant, who had proved reliable in the past, reported that the occupant of the apartment, known to him as "Wayne," had indicated that he would have more crack available for sale later that evening. Based on this information, Kyle submitted an affidavit in support of a search warrant seeking crack cocaine, drug money, and items of venue from the subject apartment. A county court judge issued the warrant.
3
When they searched the apartment that night, officers found a loaded .38 caliber handgun on top of a television set, next to a plate of crack cocaine crumbs. Although the search warrant did not mention firearms specifically, officers seized the gun because they believed that it was related to the ongoing drug investigation. In addition, police ran a record check before leaving the apartment and learned that the occupant of the apartment, who turned out to be Dewayne Wright, was a convicted felon. They were, of course, aware of statutes making it illegal for a felon to possess a firearm. Wright was arrested and charged with possession of crack cocaine with intent to deliver, in violation of state law.
4
Thereafter, Special Agent Carlton M. Tarver of the Bureau of Alcohol, Tobacco, and Firearms learned of the arrest and charged Wright with violating 18 U.S.C. § 922(g), which prohibits possession of a firearm by a convicted felon. Wright moved in limine to exclude all evidence discovered in the apartment search, as well as any statements he subsequently made to police, arguing that the warrant was not supported by probable cause. He also moved to compel disclosure of the identity of the government's confidential informant. The district court denied both motions, and Wright was convicted after a jury trial. The court, applying an enhancement under section 2K2.1(b)(5) or 2K2.1(c)(1) of the sentencing guidelines for possessing the gun in connection with another offense, determined Wright's offense level to be 30 and sentenced him to 120 months' imprisonment. See U.S. Sentencing Guidelines Manual §§ 2K2.1(b)(5), (c)(1) (1997). Wright now appeals the denial of his motion to suppress and his motions to disclose the confidential informant, the district court's decision to admit evidence of the crack cocaine found in the apartment, and the court's application of the sentencing enhancement.
II. DISCUSSION
A. Motion to Suppress
5
Wright argues that the affidavit submitted by Officer Kyle did not contain facts establishing the informant's reliability or basis of knowledge, and that the affidavit was therefore insufficient to constitute probable cause to support the search warrant. Thus, he claims that all evidence discovered in the search, as well as all evidence subsequently discovered flowing from the search, was inadmissible. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
6
We review an issuing judge's determination of probable cause for clear error. See United States v. Mahler, 141 F.3d 811 (8th Cir.1998). The Supreme Court has recognized that, because of the Constitution's "strong preference for searches conducted pursuant to a warrant," an issuing judge's "determination of probable cause should be paid great deference by reviewing courts." Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (citation omitted). Accordingly, if we are satisfied that the issuing judge had a substantial basis to conclude that the search would uncover evidence of criminal activity, we will find that the warrant was valid and that the search was conducted in accordance with the standards of the Fourth Amendment. See id.
7
In order to determine the sufficiency of an affidavit to support probable cause, we consider the totality of the circumstances. See id. at 230-37, 103 S. Ct. 2317; United States v. Hyten, 5 F.3d 1154, 1156 (8th Cir.1993). In this case, the affidavit explained that a reliable informant had witnessed a purchase of crack cocaine at the subject apartment, and that he had heard the occupant state that he would have more crack for sale later that evening. The affidavit included the informant's physical description of the occupant, as well as the informant's knowledge of the location of the crack cocaine on top of the television set. Furthermore, the affidavit stated that the informant was not on parole or probation, that he was reliable, and that he had proved his reliability in the past by making controlled purchases under the direct supervision of Kyle and other officers of the Omaha Police Department.
8
The statements of a reliable confidential informant are themselves sufficient to support probable cause for a search warrant. See United States v. Pressley, 978 F.2d 1026, 1027 (8th Cir.1992) (citing McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967)). The reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information. See United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993). The affidavit submitted by Kyle stated, "the [confidential informant] has proven his/her reliability in the past by making controlled purchase[s] of crack cocaine under the direct supervision of affiant officers." Under the totality of the circumstances, this information adequately established the informant's track record and hence, his reliability. The judge therefore had a substantial basis to conclude that the search would uncover evidence of a crime. See Gates, 462 U.S. at 236, 103 S. Ct. 2317. We find no clear error in the determination of probable cause to issue the warrant. Accordingly, we affirm the district court's ruling that suppression of the evidence in this case was not warranted.
B. Confidential Informant
9
Wright argues that the district court erred in not requiring the government to disclose the identity of the confidential informant. We review the court's decision for an abuse of discretion. See United States v. Fairchild, 122 F.3d 605, 609 (8th Cir.1997). In a motion to compel disclosure of a confidential informant, the defendant bears the burden of demonstrating a need for disclosure. See United States v. Moore, 129 F.3d 989, 992 (8th Cir.1997) (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)). The court must weigh the defendant's right to information against the government's privilege to withhold the identity of a confidential informant, see id., and disclosure should not be ordered unless it is deemed "vital to a fair trial," United States v. Bourbon, 819 F.2d 856, 860 (8th Cir.1987).
10
Although the informant in this case made a controlled purchase of crack cocaine in Wright's apartment, Wright was not convicted of a drug offense; he was convicted of being a felon in possession of a firearm. The weapons charge upon which Wright was convicted was based on the fact that, in the course of executing the search warrant, officers found a firearm in Wright's possession and obtained Wright's admission that he possessed the firearm because of the risks inherent in dealing crack cocaine. Under these circumstances, the informant could not offer any evidence, exculpatory or otherwise, bearing on the offense of which Wright was convicted. Wright has therefore not satisfied his burden to show that disclosure was vital to the fairness of his trial. We find no abuse of discretion in the district court's denial of Wright's pre-trial motion to disclose the identity of the confidential informant.
11
Additionally, Wright claims that, because he was subject to an enhancement of his sentence under section 2K2.1(b)(5) or 2K2.1(c)(1) for possessing the firearm in connection with another offense, the district court should have ordered disclosure at least for the purpose of determining the propriety of an enhancement. We disagree. The court found that Wright had used the gun in connection with the offenses of distribution and possession with intent to distribute crack cocaine. Again, that finding was based on Wright's admission that he possessed the weapon to protect against the inherent risks of dealing in crack cocaine. Any information the confidential informant might have offered would have had no effect on the court's conclusion in this respect. We therefore affirm the denial of Wright's renewed motion to disclose the confidential informant at sentencing as well.
C. Evidence
12
Wright also asserts that the district court erred in allowing the government to introduce evidence of crack cocaine found during the search of his apartment. While we do not believe that the district court abused its discretion in admitting the evidence, see, e.g., United States v. Smith, 49 F.3d 475, 478 (8th Cir.1995) (finding no abuse of discretion in the district court's admission of drug evidence "closely and integrally related to" the central issue of whether the defendant possessed the firearm), we find that it was harmless error in any event, in light of the overwhelming other evidence of guilt. See United States v. Hafiz, 129 F.3d 1011, 1012 (8th Cir.1997).
D. Sentencing
13
Finally, Wright submits that mere possession of a firearm near narcotics cannot constitute possession "in connection with" another offense to qualify for a sentence enhancement under section 2K2.1(b)(5) or 2K2.1(c)(1), and that his enhanced sentence of 120 months' imprisonment should therefore be vacated. Without further discussion, we point out that the district court did not apply the enhancement to Wright's conduct based merely on evidence of proximity of the firearm to narcotics. Rather, the court relied on Wright's admission that he possessed the gun in connection with narcotics trafficking. We find no error in the application of the section 2K2.1(b)(5) or section 2K2.1(c)(1) enhancement to a defendant who admits that he possessed the firearm in connection with another offense. Accordingly, we affirm the 120-month sentence imposed by the district court.
14
We have considered the other arguments advanced by Wright and we find them to be without merit.
III. CONCLUSION
15
For the foregoing reasons, we affirm Wright's conviction and sentence.
1
The Honorable William G. Cambridge, Chief United States District Judge for the District of Nebraska | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1919262/ | 518 Pa. 145 (1988)
541 A.2d 1381
COMMONWEALTH of Pennsylvania, Appellee,
v.
John Robert BAKER, Appellant.
Supreme Court of Pennsylvania.
Argued November 13, 1987.
Decided May 20, 1988.
*146 John R. Merrick, Public Defender, Charles M.J. Nester, and Joann Selleck, Asst. Public Defenders, for appellant.
Stuart Suss, Director of Appeals, Phyllis R. Streitel, Asst. Dist. Atty., West Chester, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
FLAHERTY, Justice.
This is an appeal from an order of the Superior Court which reversed an order of the Court of Common Pleas that had suppressed certain evidence seized in a search of a vehicle driven by the appellant, John Robert Baker.[1] 347 Pa.Super. 213, 500 A.2d 483. The issue presented is whether a revolver seized from under the seat of appellant's automobile was properly admissible as having been obtained in a search conducted without a warrant, where the search was allegedly based upon probable cause and exigent circumstances. The relevant facts are as follows.
*147 On August 16, 1983, at 2:00 p.m., an informant of known reliability notified police that he had seen appellant waving a gun at an unknown individual in an alley. The informant referred to the gun as a "cannon" with a six-inch barrel, and described the vehicle appellant was driving as an old beat-up red convertible with the top down. The informant also gave police the appellant's full name, and told them appellant was wearing a camouflaged hat. Minutes after receiving this information, police located appellant in a nearby parking area. They maintained surveillance while additional police were summoned to the scene. Police observed that appellant was initially sitting alone in the red convertible, but, after a short while, a woman known to them as Beverly Root entered the automobile. Next, the automobile was driven down the street and police lost sight of it. Police were soon advised by radio, however, that the automobile had become parked again, in a Salvation Army parking lot, not far from where it had been parked before. They proceeded to that location, maintained surveillance for ten to fifteen minutes while appellant was seen sitting on some steps near the automobile, and then approached and stopped appellant after appellant re-entered the vehicle and began to back out of the parking space.
Appellant became highly irate when he was approached by police and suddenly exited from his vehicle, after turning off the ignition, and began walking in circles and verbally abusing police in a loud manner. Police told appellant why he was being stopped, that they had information he had a weapon in his vehicle, and that the vehicle would have to be searched. Appellant, who was wearing a T-shirt and cut-off blue jeans, continued to shout in an angry manner at the police, telling them to leave him alone and leave the scene. Police were aware that appellant had prior police contacts and a history of violent reactions to those contacts, including bouts of yelling and shouting and physical responses that nearly required restraints. They did not, however, handcuff or physically restrain appellant on the instant occasion. While appellant was standing and motioning *148 around approximately twenty feet from his vehicle, and while Root was located roughly five feet from the vehicle, police succeeded in calming appellant as a brief search of the passenger compartment was conducted that resulted in retrieval of a six-inch revolver from underneath the driver's seat. Appellant was then arrested. Root retrieved a machete from the passenger side of the vehicle. The vehicle was then impounded. The entire incident, from the time of receipt by police of the informant's tip to the arrest of appellant, consumed approximately thirty minutes.
In holding that the revolver constituted admissible evidence, the Superior Court relied upon the presence of probable cause and exigent circumstances to excuse the need for obtaining a warrant. We agree. It is well established that automobiles are not per se unprotected by the warrant requirements of the Fourth Amendment, and of Art. I, § 8 of the Pennsylvania Constitution. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Nevertheless, certain exigencies may render the obtaining of a warrant not reasonably practicable under the circumstances of a given case, and, when that occurs, vehicle searches conducted without warrants have been deemed proper where probable cause was present. See Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985); Commonwealth v. Holzer, supra; Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971) (warrantless search proper where probable cause exists to believe evidence of crime is concealed in a vehicle lawfully stopped by police). The instant case is clearly one where, based upon these criteria, a search without a warrant was proper.
Police had received information from an informant, whose reliability was known, that appellant assaulted an individual in an alley by threatening the individual with a gun, and that appellant departed from the scene in a particular automobile. Within minutes, police located that automobile and placed appellant under a brief period of surveillance. *149 Soon thereafter appellant was stopped as he attempted to drive away. Thus, police clearly had probable cause to believe that appellant was in possession of the gun seen by the informant, when, just thirty minutes after the incident in the alley, they searched appellant's vehicle.
This is not a case where police knew hours in advance that a particular vehicle carrying evidence of crime would be parked in a particular locale, such that it would have been reasonably practicable to obtain a search warrant before encountering the vehicle to be searched. Rather, the instant search was conducted when police stopped a moving vehicle just thirty minutes after a reported crime. Inasmuch as the requirement of probable cause was satisfied, the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search proper. See Commonwealth v. Milyak, supra; Commonwealth v. Holzer, supra; Commonwealth v. Lewis, supra. See also United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (search of suddenly encountered and lawfully stopped vehicle upheld where probable cause was present to believe contraband was concealed within).
Of course, an alternative to an immediate search in the present case would have been to immobilize the vehicle until a warrant could be obtained. As noted, however, in Commonwealth v. Milyak, 508 Pa. at 9-10, 493 A.2d at 1349, it is not clear that the intrusion arising from immobilization of an automobile is less than the intrusion of searching it. Thus, immobilization has been held to be an alternative, not a requirement. Id., 508 Pa. at 11, 493 A.2d at 1351. In short, this case presents a typical scenario where exigent circumstances made it not reasonably practicable to obtain a warrant prior to stopping a vehicle that contained evidence of crime. Since probable cause to search the vehicle was present, a search warrant was not required, and, thus, the Superior Court properly held the revolver seized during the *150 search to be admissible as evidence.[2]
Order affirmed.
STOUT, J., did not participate in the consideration or decision of this case.
NOTES
[1] We find no merit in the Commonwealth's contention that an appeal taken from an appellate reversal of a suppression order is interlocutory and that the instant appeal should therefore be quashed. Appeals taken by defendants following appellate reversals of orders suppressing evidence are clearly cognizable by this Court. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).
[2] In view of our holding, it is not necessary to address the Commonwealth's alternate assertion that the search was justifiable as a protective search during an investigative detention. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919264/ | 541 A.2d 554 (1988)
In the Matter of the Petition of Justice of the Peace Mabel PITT; Howard Young, Warden, Multi-Purpose Criminal Justice Facility; and the State of Delaware for a Writ of Prohibition.
Supreme Court of Delaware.
Submitted: April 25, 1988.
Order Issued: April 25, 1988.
Opinion Issued: May 6, 1988.
Richard E. Fairbanks, Jr. (argued), Chief of Appeals Div., and Loren C. Meyers, Deputy Atty. Gen., Dept. of Justice, Wilmington, for the State.
Thomas Alexander, Jr., pro se.
Before CHRISTIE, C.J., and WALSH and HOLLAND, JJ.
*555 WALSH, Justice:
The State of Delaware, acting on behalf of Mabel Pitt, Justice of the Peace, and Howard Young, Warden of the Multi-Purpose Criminal Justice Facility, seeks a writ of prohibition to require the Honorable John E. Babiarz, Jr., Associate Judge of the Superior Court of Delaware, to vacate an order entered on April 21, 1988, releasing on bail Thomas Alexander, Jr., ("Alexander"), then serving a sentence for contempt of court. After expedited argument on the State's petition, we conclude that while the Superior Court is required to grant prompt review of contempt adjudications under a writ of habeas corpus it lacks authority to release the sentenced prisoner on bail pending that review.
On April 20, 1988, Alexander had been summarily held in contempt of court for disruptive behavior, pursuant to 11 Del.C. § 1271(1), by Magistrate Pitt and was sentenced to ten days imprisonment. On that same date, Alexander filed a petition in the Superior Court for a writ of habeas corpus pursuant to 10 Del.C. 6903, which permits a summary review in the Superior Court of adjudications of contempt in a lower court. At the return of the writ on April 21, 1988, Alexander sought a continuance of the proceeding and his release on bail in order to secure counsel and prepare his defense. Over the objection of the State, the Superior Court granted the request for a continuance, released Alexander on unsecured bail and set a hearing on *556 the habeas corpus petition for May 20, 1988.
Although the State seeks a writ of prohibition, we conclude that there is no basis for the issuance of that extraordinary writ because the jurisdiction of the Superior Court has not properly been called into question. Hodsdon v. Superior Court, Del.Supr., 239 A.2d 222, 224-225 (1968); Matushefske v. Herlihy, Del.Supr., 214 A.2d 883, 885 (1965). However, in view of the unavailability of a right of appeal by the State from a final order of the Superior Court in a habeas corpus proceeding, Family Court v. Alexander, Del.Supr., 522 A.2d 1265 (1987), and in the absence of any other mechanism for review, we will consider the State's petition as one for mandamus. A writ of mandamus may issue from an appellate court not only to compel the performance of a required statutory duty but to confine a lower court to the lawful exercise of its prescribed jurisdiction. Cf. Roche v. Evaporated Milk Ass'n., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). We conclude, therefore, that we have jurisdiction to review the authority of the Superior Court to grant bail in this case pending a continuance.
There appear to be two separate concepts at stake: first, Alexander's right to a review of the contempt finding; and second, his claim to the right of release pending that review. This Court has held that there is no absolute right to bail in a post-conviction setting. State v. Flowers, Del. Supr., 330 A.2d 146 (1974). Therefore, Alexander's right to bail, if any, following his conviction must be conferred by statute. This Court has recognized recently that habeas corpus is an extraordinary writ governed by special statutes. Family Court v. Alexander, 522 A.2d 1265 (1987). Delaware's habeas corpus statute appears at 10 Del.C. § 6901 et seq.
The Superior Court has habeas corpus jurisdiction which it has exercised pursuant to a series of statutes since at least 1852. In re Dean, Del.Supr., 251 A.2d 347 (1969). Habeas corpus is intended as a quick and summary procedure for relief from illegal imprisonment. Family Court v. Alexander, 522 A.2d at 1267. The habeas corpus statute provides that upon return of the writ, examination into the cause of incarceration must proceed without delay. 10 Del.C. § 6908. Section 6908 provides specifically that if the examination is adjourned due to necessity, the prisoner remains detained. Statutory authority for the grant of bail incident to a habeas corpus proceeding is limited to situations in which the person detained is in a pre-indictment or pre-trial status (§§ 6910-6912) and then only upon the determination by the Superior Court that he is unlawfully detained. Therefore, when the Superior Court released Alexander on bail following his conviction for contempt, pending the examination of the cause of imprisonment, it did so without statutory authority and thereby exceeded its jurisdiction. Accordingly, the writ of mandamus will issue to require revocation of the Superior Court's order releasing Alexander on bail.
However, two questions remain to be answered in these proceedings. The first is the Superior Court's authority to delay the proceedings while Alexander remains incarcerated. The second is the nature of the hearing which must be held.
This Court has noted that 10 Del.C. § 6906(a) requires the court or judge to whom an application for a writ of habeas corpus is made to award and issue the writ without delay under penalty of $1,000 to the party aggrieved. Family Court v. Alexander, 522 A.2d at 1267. That same statute requires production of the body "without delay" and within three days of service of the writ. Upon return of the writ, the examination into the cause of the incarceration must proceed without delay. Since the prisoner remains incarcerated during any adjournment of the examination we hold that the term "without delay" must be construed to mean immediately or forthwith upon presentation of the prisoner before the Superior Court.
In this case the State was prepared to proceed immediately when Alexander was brought before the Superior Court. Should the State not be prepared to proceed *557 at the time set for the examination of the cause of the prisoner's commitment, the Superior Court is nonetheless required to proceed with "its examination." In the event the State is unable to demonstrate the basis for the commitment, the petitioner is entitled to be discharged. However, in this case Alexander, not the State, requested a continuance for the purpose of retaining a private attorney. This request may have been influenced by the fact that Alexander anticipated that he would be released on bail. The Superior Court has authority to grant a request for a continuance or an adjournment made by the petitioner. However, the petitioner remains detained during the adjournment of any hearing and during any continuance granted at his request. 10 Del.C. § 6908.
The final question before this Court involves the nature of the examination which should be conducted by the Superior Court. Historically, a hearing on a petition for a writ of habeas corpus has been limited to an inquiry into the jurisdiction of the court ordering the commitment. The establishment of a commitment valid on its face will ordinarily cause dismissal of the petition and the remand of the prisoner to custody. Curran v. Woolley, Del.Supr., 104 A.2d 771 (1954). However, the Curran Court also held that there must be an adequate procedure to give a person deprived of his freedom the opportunity to have the intrinsic fairness of the criminal process under which he is committed examined into, even though it appears proper and regular on its face. Id. at 774.
The writ of habeas corpus is known as the Great Writ. Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837 (1963). By providing a prisoner with a means of challenging an allegedly unlawful detention, it ensures that the government will be accountable for any denial of personal liberty. Id. The habeas corpus petition, in the context of this case, is the sole method available to obtain review of an otherwise final judgment.
The Delaware statute sets forth special habeas corpus procedures when a person is committed to jail for contempt by a justice of the peace. 10 Del.C. § 6903. That statute provides for notice of the hearing in the Superior Court to be given to the committing magistrate. The prisoner is also permitted to deny the alleged contempt under oath i.e. by testifying. After the hearing in the Superior Court, the judge may remand the prisoner to custody or discharge the prisoner. 10 Del.C. § 6903(b). That statutory procedure must be followed in this case and the Superior Court must examine the intrinsic fairness of the criminal process under which Alexander has been incarcerated, even though it may appear regular and proper on its face. Curran v. Woolley, 104 A.2d at 774.
The State's petition for relief in the form of a writ of mandamus is GRANTED and the matter is REMANDED to the Superior Court which is directed to:
(a) Revoke its prior order setting bail and releasing Alexander; and
(b) Promptly hold the examination required by 10 Del.C. § 6908 in accordance with the procedures set forth in 10 Del. C. § 6903 and as otherwise required for the purpose of determining the intrinsic fairness of Alexander's commitment.
The mandate in this matter shall issue forthwith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589923/ | 563 F.Supp. 1075 (1983)
UNITED STATES of America
v.
James L. BEST.
Cr. No. 83-0013.
United States District Court, District of Columbia.
April 21, 1983.
*1076 Theodore A. Shmanda, Asst. U.S. Atty., Major Crimes Div., Washington, D.C., for plaintiff.
Thomas Lumbard, Washington, D.C., for defendant.
MEMORANDUM AND ORDER
BRYANT, District Judge.
On April 6, 1983, the court granted the motion of defendant James L. Best to suppress all physical evidence seized by the government at the time of his arrest and all statements made by him while in police custody following his arrest. The court now sets forth the reasons for its decision.
A. Factual Background: The Search and Arrest
The factual background of this case was examined at a full-day hearing held on March 10, 1983. At this hearing, the court received testimony from three witnesses for the defendant the defendant himself; Mr. Lawrence Troy Hart, who was arrested along with the defendant;[1] and Ms. Valerie Davis, the defendant's girl friend and three witnesses for the government police officers Michael P. Wilson, Edward W. Minnis, Jr., and Samuel Prue, all of whom were present when the defendant was searched and arrested.
With a few significant exceptions, which are discussed in Part C below, the facts of this case are not in dispute. In the early afternoon of December 11, 1982, defendant Best was sitting in his car talking with his friend Lawrence Troy Hart. The car was parked in a parking lot behind a public housing project near Kenilworth Avenue and Quarles Street, N.E. It was not unusual for the defendant to park his car there because he frequently visited Ms. Davis, who lived in the housing project.
On the day in question, there were several men standing in a group near the defendant's car, some of whom had been previously arrested for selling drugs in the parking lot. There was also a woman in the parking lot, who was walking towards an alley which leads out to the shopping district on Kenilworth Avenue.
Suddenly and without warning, several police cars drove through the alley and into the parking lot. At the same time, several policemen approached on foot from the direction of the housing project. Cocking their shotguns, the policemen quickly converged on the defendant's car.
The first policeman to reach the car was Officer Michael P. Wilson. At the suppression hearing, Officer Wilson testified that his attention was drawn to the car by a furtive movement made by the defendant, who was sitting in the driver's seat. Officer Wilson testified that the defendant appeared to be reaching under the driver's seat. When Officer Wilson approached the car, he went to the passenger's side, where Mr. Hart was sitting, and ordered the men to get out of the car. Officer Wilson placed Mr. Hart against the hood, ordered him to take everything out of his pockets, and frisked him.
Meanwhile, the defendant, who had gotten out of the car in response to Officer Wilson's order, was taken by Officer Edward Minnis to a low chain-link fence at the edge of the parking lot. He was joined there by the group of men who had been standing near his car. All the men were told to empty their pockets and were frisked. The woman who had been walking towards the alley was picked up and also placed against the fence.
*1077 While this was going on, Officer Wilson finished frisking Mr. Hart and, leaving Mr. Hart with another officer, began to examine the passenger's side of the interior of the car. Finding nothing there, he walked around the front of the car to the driver's side, where, he claimed, he looked through the open door and saw the butt end of a pistol sticking out in plain view from beneath the driver's seat.
He entered the car and looked under the seat. There he found not only a gun, but also a black leather pouch containing plastic envelopes of heroin. He handed the leather pouch out to another officer, who, in turn, held it up for the other policemen to see. Officer Wilson said that he left the gun on the floor of the car so that it could be processed for fingerprints.
Further search of the car uncovered a number of empty plastic bags, a machine for sealing the bags, and three $10 rolls of quarters in the trunk.[2] During the frisks, $50 was also seized from Mr. Hart,[3] and $253 from the defendant. The defendant also handed the officer who was frisking him an envelope which contained a small amount of marijuana.
Following the search, the defendant and Mr. Hart were formally placed under arrest, handcuffed, put in a police wagon, and taken to the Sixth District station, where they were stripped searched and locked up. After being advised of his right to remain silent, the defendant acknowledged that the drugs and the gun were his and emphasized that nothing taken from his car belonged to Mr. Hart.
B. Factual Background: The Police "Sweep" Tactics
According to the unanimous testimony of both the defendant's witnesses and the government's witnesses, the "sweep" tactics that resulted in defendant Best's arrest were (and perhaps continue to be) commonly used by the police in the Quarles Street area. It was obvious from the testimony of the defendant's three witnesses that as residents of that area, they were thoroughly familiar with the sweeps. Ms. Davis testified that on December 11, when she heard the sound of shotguns being cocked, she knew from experience that another sweep was beginning. She said that the police, whom she called "the jump-out boys,":
ride through the alley, jump out cocking their guns stopping everybody and anything that's in their way ... telling them empty their pockets, up against the fence .... They never say [what they are looking for]. If you ask them questions, next thing you know you are down there for disorderly conduct. [Transcript of March 10, 1983, Hearing at 33.]
The defendant testified in similar fashion and added that:
When I saw them coming up the alley and I noticed these four or five people standing in front of me then I knew that that was going to be the place that they stopped because whenever they come they only stop if it's a crowd or a gathering. If anything more than three or four people are standing in one spot when they come through that's where they are *1078 going to make their initial stop at. [Transcript at 89.][4]
Mr. Hart, who described the police tactic as "swarming," testified that on a previous occasion, while walking through the alley to the store, he had been caught up in one of the sweeps, searched at gunpoint, and told not to walk there again.
The most precise testimony concerning the sweep tactics was given by Sergeant Prue, the commanding police officer, as follows:
A. Well, I have ten people assigned to my unit and I went to the commanding officer of the district and he assigned me 15 more people. We decided to use these 25 people and about four or five vehicles that were made available to me.
Q. [By the court] What is the modis operendi? What tactics did you use?
A. ... We wouldn't even worry if there was anybody there or not. We would just pick a particular location, that alley, and then we would cover all escape routes from that alley and just pull up in the cars, block the escape routes and then move in towards the center of the alley.
Q. What would you do?
A. Stopped everybody that was there.
....
Q. ... There has been some testimony about people around cars from time to time congregated around automobiles. Would you order people out of cars?
A. Yes, Sir.
Q. You would?
A. Yes, Sir.
Q. If you went into an area and you suspected narcotics activity you order people out of the automobiles?
A. Yes, Sir.
Q. And you would search them?
A. Yes, Sir.
Q. What about the automobiles? Search the automobile too?
A. No, Sir, not search the automobile. We would, as the people exited the automobile we would look inside the space of the automobile that were readily available, the areas that you could see into.
Q. That's the modis operendi?
A. Yes, Sir.
Q. Sir, if I was sitting in a car and you folks came up with one of those what do you call that business, one of those flying squadron things
A. Yes, Sir.
Q. If I was sitting in the car, you ordered everybody out of the car, get out of the car.
A. Yes, Sir.
Q. And you searched me.
A. Pat you down for weapons, Sir.
Q. Pat me down for weapons.
A. Yes, Sir. That would be more appropriate.
Q. Then what would you do?
A. If you didn't have any weapons we would identify you and let you know what we were doing, that we were there investigating the narcotics activity that we had complaints of and let you know that this kind of thing would be going on in the area and if you didn't have business in the area, you didn't live in the area and you were congregating here with what we knew to be known criminals
Q. It's going to happen to you again?
A. Yes, Sir. [Transcript at 183-84.][5]
C. Factual Disputes
The only significant factual dispute in this case involves the government's contention that the police had specific reasons for focussing their investigative attention on defendant Best. This contention rests on Officer Wilson's testimony at the suppression hearing that (a) he approached the defendant's car and ordered the occupants to get out in response to a suspicious movement *1079 made by the defendant, who was sitting in the driver's seat, and (b) he searched under the driver's seat of the car only after first seeing the butt end of a gun sticking out in plain view from beneath the seat. The defendant vigorously disputed both of these claims.
In assessing the credibility of Officer Wilson's testimony, the court applies the same kinds of tests as it would ask jurors to apply in their factfinding.[6] It is the court's considered judgment that in light of these common-sense tests, Officer Wilson's testimony concerning the two points noted above must be rejected as unworthy of belief.
In the first place, Officer Wilson did not testify in a forthright manner. On the witness stand, he behaved in a nervous and evasive manner, so much so that the court found it necessary to try to pin him down on two occasions. See transcript at 119 and 125.
Secondly, Officer Wilson's testimony at the suppression hearing contradicted his earlier sworn testimony in critical areas, and the officer was unable to reconcile the discrepancy. At the suppression hearing, he testified with seeming confidence and certainty that he saw the pistol while looking through the open door of the defendant's car. However, at the preliminary hearing held before the Magistrate, Officer Wilson categorically stated that he saw the pistol while peering through the windshield of the car.
Thirdly, Officer Wilson's testimony was contradicted by what the court finds to be credible testimony of other witnesses. The defendant testified that once he saw the police cars driving into the alley, he knew that he and his car would be searched. He testified that he made no effort to avoid or resist the search. He also testified that both the gun and the heroin pouch were hidden far back under the seat and out of plain view. He and Ms. Davis testified that the seat of the defendant's car was covered with an old blanket, which had the effect of obscuring from view what was under the seat. While on the witness stand, both the defendant and Ms. Davis behaved in a natural and forthright manner which sharply contrasted with that of Officer Wilson.
Finally and perhaps most importantly, Officer Wilson's testimony revealed itself as being incredible in the face of his actual conduct at the time of the defendant's arrest. Officer Wilson maintained that as he approached the defendant's car, he looked through its rear window and saw the driver make a furtive movement, as if touching something under the seat. But when he reached the defendant's car, he went directly to the passenger's side of the car, ordered the passenger out of the car, paying strict attention to the passenger, his movements, and the place where he had been sitting. As to the driver, who allegedly made the furtive movement, he paid no attention. See transcript at 138. The court finds it incredible that a person would find something that he deemed significant and then ignore it, especially when what was at stake was his own physical safety.
For all these reasons, the court is forced to reject Officer Wilson's testimony to the extent that it would lend any uniqueness to the search of the defendant. The court finds as a matter of fact that the police neither approached the defendant's car in response to seeing some furtive gesture nor searched the car only after first seeing a gun in plain sight.
The court's confidence in this finding is strengthened by the undisputed fact that when the police conducted sweeps of the Quarles Street parking lot, their standard procedure was to search and interrogate anyone they found there and to order everyone out of their cars. What happened on December 11, 1982, was not a breakdown in the Department's investigative procedures, but simply their normal functioning.
*1080 D. Law
The government has attempted to justify the detention and search of defendant Best on authority of United States v. White, 648 F.2d 29 (D.C.Cir.1981). But, as the government acknowledges, the facts in White differ in significant ways from those in the instant case. In White, the police acted on a tip specifically directed at the defendant and established surveillance of the defendant's car before approaching it. None of that occurred here.
The court knows of no legal basis for the sweep tactics employed by the police in this case. The fourth amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". The fourth amendment "protects people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and applies "whenever a police officer accosts an individual and restrains his freedom to walk away," Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). There can be no question that when the police conducted sweeps in the Quarles Street area and searched people at gunpoint, they were "restrain[ing] their freedom to walk away".
Even a mere investigative stop of the type discussed in Terry, supra, cannot be justified simply because a person is found in an area with a high incidence of drug traffic, looks unfamiliar and suspicious to the police officer, but has done nothing to create suspicion of "any specific misconduct," Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The police must have, in Judge Leventhal's words, a "founded suspicion of wrongdoing," United States v. Montgomery, 561 F.2d 875, 880 (D.C.Cir.1977).
Moreover, as this circuit recently stated in Gomez v. Turner, 672 F.2d 134 (D.C.Cir. 1982):
Appellant suggests that an MPD contact, even if a seizure, "constitutes such a minor intrusion upon a pedestrian's privacy that it need not be justified by a reasonable, articulable suspicion of criminal conduct, much less probable cause, and such questioning is proper as long as it is not wholly capricious." ... The Supreme Court has recognized that brief, relatively unintrusive detentions termed "stops" may be "reasonable" if based upon an articulable suspicion.... More intrusive detentions are reasonable only if supported by probable cause.... The law is unsettled concerning the point at which a "stop" ripens into a detention that requires probable cause. In any event, the Court has stated that "any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." ... Accordingly, we decline appellant's invitation to find that a contact, even if a seizure, is reasonable although not based upon any recognized objective standard. [Id. at 139-40, n. 9.]
This is not a case that calls on the court to determine whether the line between an investigatory stop and an arrest was crossed. Even when judged under the less restrictive standards of a stop, the detention and search of defendant Best cannot stand. The police had no reason to suspect the defendant of any specific misconduct and cannot ascribe his detention and search to any exigent circumstances. Their action was prompted rather by a policy which takes legal shortcuts in dealing with drug trafficking, at least in Mr. Best's part of town.
Indiscriminate sweeps may be an effective tactic for moving drug traffic from one place, where it bothers the citizens, to another, where it causes less initial citizen concern. But when tested by the standards of the Fourth Amendment, its legitimacy is nonexistent. What happened in this case is perhaps best put in perspective by the words of Judge Edwards in United States v. White:
This case arose in the inner-city of Washington, D.C. One wonders whether police officers ... would accost well-to-do residents *1081 in one of the affluent suburbs near Washington (where drug peddling is known to be prevalent), in the same manner that they accosted the appellant here. It is doubtful. [648 F.2d at 46 (Edwards, J., dissenting).]
E. Conclusion
For the reasons discussed above, it is hereby ORDERED that defendant's motion to suppress is granted.
NOTES
[1] All charges placed against Mr. Hart were subsequently dropped.
[2] The discovery of heroin, empty plastic bags, and a sealing machine might ordinarily suggest that their possessor was engaged in large-scale drug distribution. However, at the suppression hearing, defendant Best offered another explanation. He claimed that he had found the heroin, bags, sealing machine, and pistol in a paper bag in an abandoned car in the same parking lot where he was arrested. The defendant said that as a frequent visitor to the housing project, he knew that the abandoned car was used as a drop-off point for local drug dealers. He said that on the night before his arrest, while sitting in Ms. Davis' apartment, he saw a man place the bag in the abandoned car. In hopes of finding something valuable, he went out to the abandoned car, removed the paper bag, put it in his car, and quickly drove off. He said that later, after he had examined its contents, he hid the gun and the heroin under the front seat of the car and put the remaining things in the trunk. He said that he intended to sell the drugs and the gun as soon as possible. At the suppression hearing, the government did not seriously challenge this account.
[3] Despite the fact that the Department had dismissed all charges against Mr. Hart, at the time of the suppression hearing, Mr. Hart had still not been able to recover his money.
[4] The defendant's hunch was confirmed later in the suppression hearing when Officer Minnis testified that "[i]t was the people standing ... close to the car and they attracted our attention first." Transcript at 173.
[5] Accord, testimony of Officer Wilson, transcript at 118-21.
[6] See District of Columbia Criminal Jury Instruction No. 2.11, "Credibility of Witness," (3rd Ed.1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589859/ | 972 So.2d 186 (2008)
THOMPSON
v.
STATE.
No. 2D07-1398.
District Court of Appeal of Florida, Second District.
January 25, 2008.
Decision without published opinion. App. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589963/ | 14 So.3d 44 (2009)
Rita DORION
v.
GULF STATES ASPHALT CO., L.P.
No. 08-CA-670.
Court of Appeal of Louisiana, Fifth Circuit.
April 28, 2009.
*46 Leo J. Palazzo, David D. Bravo, Palzazzo Law Firm, Gretna, LA, for Plaintiff/Appellant.
Amanda H. Carmon, Attorney at Law, Baton Rouge, LA, for Defendants/Appellees.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
MARION F. EDWARDS, Judge.
Plaintiff/appellant, Rita Dorion ("Dorion"), appeals a judgment of the Office of Workers' Compensation ("OWC") dismissing with prejudice her claim for benefits, penalties, and attorney's fees.
In October of 2004, Dorion filed a disputed claim for compensation alleging that she was injured in the course and scope of her employment with Gulf States Asphalt Company, L.P. ("Gulf States") and that her injuries developed over time as a result of heavy lifting. Gulf States and the Louisiana Workers' Compensation Corporation ("LWCC") filed an answer and general denial, averring, in part, that there was no alleged date of an accident. Trial in the matter was ultimately set for April 4, 2008, following which the OWC judge determined that there was no evidence of record regarding the work required by Gulf States, such as what objects Dorion had to lift, how often or how heavy they were, and whether she was standing, stooping, etc. The court found that no specific accident took place as is defined by LSA-R.S. 23:1021 and required by LSA-R.S. 23:1031. Further, the court stated that "[s]ome physicians have found that Ms. Dorion suffers from a degenerative disc disease," which condition was specifically excluded by LSA-R.S. 23:1031(B). The court, thus, dismissed her petition.
Dorion began working at Gulf States some time in 1998. Prior to her employment at Gulf States, she worked on an assembly line at Intralox Company for nine years, during which employment she developed carpal tunnel syndrome. She became pregnant and stopped working, and, as a result, her symptoms disappeared. Dorion testified that, in 2003, she began having severe headaches, tension, and numbness in her hands, and severe pain in her left elbow. MRIs taken on April 4, 2003 and on August 1, 2003 indicated cervical spasm and a degenerative fifth cervical disc.
In February 2004, Dorion continued to experience pain in her left shoulder and her neck but then began to suffer from severe headaches and vomiting. She asked for and received a leave of absence. Dorion went to the emergency room at West Jefferson Hospital and was told to see a neurologist. According to Dorion, she eventually sought treatment from Dr. Dhanpat Mohnot ("Dr. Mohnot"), who diagnosed her with a herniated disc, a pinched nerve in her neck, and arthritis, as well as carpal tunnel syndrome. She gave her employer the medical reports from both Dr. Mohnot and Dr. Ralph Katz ("Dr. Katz"), an orthopedist. Upon receipt of the medical report, Gulf States cancelled Dorion's health insurance and terminated her employment.
A number of medical records were entered into evidence. Dr. Meyer Sutton ("Dr. Sutton") treated Dorion in January and February of 2004 for various complaints, including headaches, pressure in her neck, and numbness in her hands. Dr. Sutton did not provide a diagnosis but noted Dorion had previously been diagnosed with carpal tunnel syndrome. Dr. Sutton referred her to Dr. Mohnot.
*47 In March of 2004, Dorion saw Dr. Mohnot at the New Orleans Headache and Neurology Clinic for complaints of severe headaches, neck pain, and dizziness. Dr. Mohnot ordered an MRI and an EEG. The MRI showed disc protrusions at C4-5 and C5-6 causing spinal lateral recess and stenosis. There was no diagnosis of a neurological disorder by Dr. Mohnot but one of his diagnoses was cervical degenerative disc disease. Dr. Mohnot referred Dorion to Dr. Katz at the Westside Orthopedic Clinic for further evaluation of her neck and arm pain.
Dr. Katz noted that his examination, the MRI, and X-rays indicated some cervical disc protrusion at C4-5 and C5-6, with some stenosis. He further determined that Dorion suffered with carpal tunnel syndrome and "[d]iffuse posterior cervical pain which appears to be muscular with associated left-sided trapezial muscle pain," and possible tension headaches. She was treated conservatively with medication and referred back to Dr. Mohnot for a nerve conduction study.
In March of 2005, Dorion went to Houma Hospital and saw Dr. Morteza Shamsnia ("Dr. Shamsnia"), a neurologist. Dr. Shamsnia ordered another MRI and EMG. The MRI taken at that time showed disc herniation at C4-5. He testified that, with a degenerative disc, an event occurs that causes the disc, which is like a cushion, to lose water and change shape, moving out of place or collapsing on another disc. With a herniated disc, the cushion moves and comes out. A herniated disc can lead to degenerative disc disease and vice-versa. The number of spinal discs involved can determine the type of injury and, in degenerative disc disease, multiple levels of discs are involved. The discs which evidence "wear and tear" are higher up, at C5-6 and 6-7. Because Dorion's herniation was higher up, it was "against natural wear and tear." Dr. Shamsnia testified that carpal tunnel syndrome can affect posture, the way the arm is held and used, and, thus, can put pressure on the neck. He opined that, in Dorion's case, absent evidence of an accident or evidence of an earlier disc disease, the carpal tunnel syndrome affected her posture and put pressure on her neck, causing the herniated disc. The carpal tunnel syndrome and the resultant cervical problem developed over a long period of time. Dr. Shamsnia was still Dorion's treating physician at the time of trial.
Dr. Stefan Pribil ("Dr. Pribil"), a neurosurgeon, testified via deposition. He examined Dorion on June 9, 2006 for neck and bilateral arm pain. Dorion told him she worked an assembly line approximately six years, lifting anywhere from ten to 100 pounds. Dr. Pribil examined Dorion and reviewed her records, including the MRI, and diagnosed Dorion with herniations at C4-5 and C-5-6. He believed that the repetitive assembly line work contributed materially to the development of carpal tunnel, shoulder, and cervical disc problems. Degenerative disc disease develops over time, and he felt that Dorion's entire condition "happened over a ... long period of time, yes, chronically developed." Dr. Pribil recommended an angio-cervical discectomy.
Dr. Eric George ("Dr. George") performed carpal tunnel release surgery on Dorion and found that, as of May 12, 2006, she was at maximum medical recovery.
In workers' compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the "manifest error-clearly wrong" standard.[1] Under the manifest error *48 standard, the appellate court must determine whether the workers' compensation judge's factual findings are reasonable in light of the record reviewed in its entirety.[2] The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact.[3]
The judgment here contains errors of both fact and law. In her deposition in the record, Dorion testified that, in her job as an assembly worker, she cut and packed rolls of weatherproof sealant tape into boxes. For one hour she had to wind the roll of tape on the conveyor. She would have to sit down and roll the tapes, box the containers, and put the boxes on a pallet. Ten five-pound boxes were packaged into one larger box, and she would put those larger boxes on the pallet. The pallet would hold thirty or forty large boxes, which were then transferred to a forklift. The history taken by Dr. Pribil supported her testimony. Therefore, the record does not support the determination by the court that there was no evidence of the work required of Dorion by Gulf States.
Further, when legal error interdicts the fact-finding process in a workers' compensation proceeding, the de novo, rather than the manifest error, standard of review applies.[4] Likewise, "[t]he interpretation of statutes pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct."[5] Because we find that the trial court also committed legal error in its interpretation of the workers' compensation laws, we review the matter de novo.
The Workers' Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries.[6] Generally, an injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. LSA-R.S. 23:1031. Specifically, LSA-R.S. 23:1031.1 governs workers' compensation claims for occupational disease. In 2004, LSA-R.S. 23:1031.1, in relevant part, read:
A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational *49 disease for the purpose of this Section.
Prior to the legislative extension of workers' compensation coverage to include occupational diseases, a worker's entitlement to compensation hinged on the occurrence of an "accident," which can only be established by the heightened burden of proof by the claimant of an "identifiable precipitous event" that caused injury.[7] While enlarging workers' compensation coverage to cases of occupational disease, LSA-R.S. 23:1031.1 retains the requirement that an employee establish the disease arises from his work, i.e., from "causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease."[8] Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. The causal link between a claimant's illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of only a possibility that the employment caused the disease or that other causes not related to the employment are just as likely to have caused the disease.[9]
Gulf States does not contest the fact that Dorion's carpal tunnel syndrome was the result of her employment, and, in fact, has paid some benefits for that condition. Rather, Gulf States' position at trial was that Dorion's inability to work is the result of degenerative disc disease, which is specifically excluded from coverage as an occupational disease under LSA-R.S. 23:1031.1.
Nevertheless, that statute also clearly states that an occupational disease shall include injuries due to work-related carpal tunnel syndrome. Dr. Shamsnia, Dorion's treating physician, opined that Dorion's ruptured or herniated cervical discs were the result of the changes in posture and pressure on her neck caused by her carpal tunnel syndrome. None of the medical testimony contradicts Dr. Shamsnia's conclusion that carpal tunnel led to Dorion's subsequent injuries, whatever the diagnosis of the injuries may have been. Contrary to Gulf States' assertion and the finding of the trial court, only one physician, Dr. Mohnot, diagnosed Dorion's problem as degenerative disc disease. At least two Louisiana circuit courts have indicated that other injuries resulting from carpal tunnel syndrome are compensable.[10] Based on the record, we find the herniated discs are injuries due to work-related carpal tunnel syndrome. That Dorion's cervical problems developed over time does not require the conclusion that her problems were caused by degenerative disease, nor lessen the fact that these were injuries sustained as a result of carpal tunnel syndrome.
Additionally, in Louisiana it is well-settled that an employee's disability is compensable if a pre-existing condition or *50 disease is activated or precipitated into a disability manifestation as a result of work.[11] It is also axiomatic that an employee's work injury is presumed to have aggravated, accelerated, or combined with his preexisting disease or infirmity to produce his disability when the employee proves that, before the accident, he had not manifested disabling symptoms but that commencing with the accident the disabling symptoms appeared and manifested thereafter and medical or circumstantial evidence indicates a reasonable possibility of a causal connection. An occupational disease which causes disability in that manner is equally compensable.
At trial, Ms. Thea Smith, a claims representative for the LWCC, testified that compensation benefits were initially denied because the injuries claimed were "cervical" and there was no report of an accident. At no time did LWCC request Dorion to consult a physician of its choice.
LSA-R.S. 23:1201(F) grants a claimant the statutory right to penalties and attorney's fees for all unpaid compensation and medical benefits. The section does not apply if the claim is reasonably controverted. The test to determine whether the employee's right to benefits was reasonably controverted is whether, given the facts, medical and otherwise, known to the employer or his insurer, did the employer or insurer have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Stated another way, did the employer or his insurer have sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant.[12] Here, the medical records available to Gulf States prior to trial discussed cervical herniations with no particular link to carpal tunnel syndrome. Attorney's fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee's entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative.[13] In the absence of an identifiable accident, it was not unreasonable to counter Dorion's claims of cervical injuries. We, thus, decline to award penalties and attorney's fees.
For the foregoing reasons, we reverse the judgment of the trial court dismissing Dorion's case and remand the matter for further proceedings.
REVERSED AND REMANDED.
NOTES
[1] Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112 (citations omitted).
[2] Pugh v. Casino Magic, 37,166 (La.App. 2d Cir.4/11/03), 843 So.2d 1202, reh'g denied.
[3] Dean v. Southmark, supra.
[4] MacFarlane v. Schneider Nat'l Bulk Carriers, Inc., 07-1386 (La.App. 4 Cir. 4/30/08), 984 So.2d 185 (citing Brantley v. Delta Ridge Implement, Inc., 41,190, p. 8 (La.App. 2 Cir. 6/28/06), 935 So.2d 308, 314).
[5] MacFarlane, supra (citing Lirette v. Patterson Serv., Inc., 05-2654, p. 4 (La.App. 1 Cir. 11/17/06), 951 So.2d 223).
[6] Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560.
[7] See, Thomas v. Alliance Compressors, 04-1034 (La.App. 3 Cir. 12/8/04), 889 So.2d 424, writ denied, 05-0086 (La.3/18/05), 896 So.2d 1010 (citing O'Regan v. Preferred Enter., Inc., 98-1602, pp. 10-13 (La.3/17/00), 758 So.2d 124).
[8] Id. (citing Coats v. Am. Telegraph Co., 95-2670 (La.10/25/96), 681 So.2d 1243).
[9] Id.
[10] See, e.g., Shields v. GNB Technologies, Inc., 33,911 (La.App. 2 Cir. 10/4/00), 768 So.2d 774. See, also Elliott v. OMSI, 97-71 (La. App. 3 Cir. 4/30/97), 693 So.2d 847, writ denied, 97-1841 (La. 10/17/97), 701 So.2d 1327.
[11] Jackson v. Wal-Mart Stores, Inc., 03-1054 (La.App. 5 Cir. 2/10/04), 868 So.2d 813.
[12] Ziegler v. Bagby Constr./LWCC, 99-1120 (La.App. 5 Cir. 4/25/00), 760 So.2d 513, 520, writ denied, 00-C-1458, (La.6/30/00), 766 So.2d 544.
[13] Parker v. ADM Milling Co., 01-649 (La. App. 5 Cir. 11/27/01), 804 So.2d 120. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2143335/ | 909 N.E.2d 518 (2009)
JENKINS
v.
STATE.
No. 46A03-0901-CR-34.
Court of Appeals of Indiana.
July 2, 2009.
BRADFORD, J.
Disposition of case by unpublished memorandum decision. Affirmed.
CRONE, J., Concurs.
BROWN, J., Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1589971/ | 563 F.Supp. 15 (1982)
Kenneth MORLOCK, Plaintiff,
v.
STATE OF OHIO, DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Columbus Developmental Center, Defendants.
No. C-2-80-643.
United States District Court, S.D. Ohio, E.D.
July 1, 1982.
*16 James C. DeBoard, Frederick Berkemer, Columbus, Ohio, for plaintiff.
George Stricker, Jr., Asst. Atty. Gen., Columbus, Ohio, for defendants.
MEMORANDUM AND ORDER
DUNCAN, District Judge.
This matter is before the Court on defendants' motion for summary judgment. The complaint herein alleges a cause of action under the Rehabilitation Act of 1973, Section 504, 29 U.S.C. § 794. Plaintiff asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343. The complaint alleges that the plaintiff is blind and that the defendants discriminated against the plaintiff because of his handicap by refusing to promote him to a Social Work Consultant II position in May of 1976 and October of 1977. Plaintiff alleges that the defendants continued to discriminate against the plaintiff on account of his handicap until June 25, 1980, when the promotion was "belatedly awarded to the plaintiff." Defendants' motion for summary judgment is premised upon the theory that plaintiff has no private right of action under § 504 of the Rehabilitation Act.
Several statutes are pertinent to this question. Section 504 provides in pertinent part:
No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....
29 U.S.C. § 794.
Section 505 of the Rehabilitation Act provides for certain remedies:
(2) The remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under Section 794 of this title.
29 U.S.C. § 794a(2). By virtue of this provision, the remedies available for a violation of § 504 are provided for in Title VI of the Civil Rights Act of 1964.
Title VI provides in pertinent part:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d.
This provision of Title VI is limited by § 2000d-3 which states:
*17 Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment. (Emphasis added.)
The issue presented on this motion for summary judgment is whether the limitation of § 2000d-3, by virtue of its incorporation into § 505 of the Rehabilitation Act, precludes plaintiff's private right of action where there has been no showing that "a primary objective of the Federal financial assistance is to provide employment."
Relying on numerous authorities, defendants argue that where there has been no showing that the Federal funds are designed to provide employment, a plaintiff alleging discrimination on the basis of handicap has no private right of action under § 504. Simon v. St. Louis County, Missouri, 656 F.2d 316, 319 n. 6 (8th Cir.1981); United States v. Cabrini Medical Center, 639 F.2d 908 (2d Cir.1981); Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir.1980), cert. denied, 449 U.S. 892, 101 S.Ct. 249, 66 L.Ed.2d 117 (1980); Trageser v. Libbie Rehabilitation Center, 590 F.2d 87 (4th Cir.1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979); Miller v. Abilene Christian University of Dallas, 517 F.Supp. 437 (N.D.Tex.1981); Sabol v. Board of Education, 510 F.Supp. 892 (D.N.J.1981); Brinkley v. Department of Public Safety, 22 F.E.P. 164 (N.D.Ga.1980).
In the face of this overwhelming authority, the only decision holding that the limitations of § 2000d-3 are not applicable to an action under § 504 is Hart v. County of Alameda, 485 F.Supp. 66 (N.D.Cal.1979).
After careful consideration of the relevant arguments, the Court finds the view of the Second, Eighth, and Fourth Circuits more persuasive. The Court accordingly holds that plaintiff is entitled to pursue a private right of action under § 504 of the Rehabilitation Act only if the primary objective of the Federal financial assistance received by the defendants is to provide employment.
Plaintiff's complaint makes no allegation that the Federal funds received by the defendants are for the objective of providing employment. The answers to plaintiff's interrogatory number 23, moreover, appear to show that the Federal funds received by the defendants are not primarily for providing employment. However, in his memorandum contra defendants' motion for summary judgment, plaintiff argues that the Federal aid received by the defendants
is primarily for educational programs, projects, experiences, and services. Only a small portion is to provide equipment. A primary objective of the fund described in defendants' answers to plaintiff's Interrogatory No. 23 is to make possible the employment of necessary personnel to implement these services.
Plaintiff has offered no evidence in support of this assertion. Fed.R.Civ.P. 56(e). Nevertheless, in an abundance of caution, the Court will afford plaintiff an opportunity to submit additional evidence in support of its claim that the funds received by the defendants were for the purpose of providing employment. Plaintiff may submit such materials in conformity with Rule 56(e) within twenty (20) days of the date of this order.
The Court will STAY its decision on defendants' motion for summary judgment until plaintiff has had an opportunity to submit any additional evidence. Defendants may respond thereto within ten (10) days.
So ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1590146/ | (2008)
Peter F.A. BROWN, Plaintiff,
v.
Michael CHERTOFF, Secretary, Department of Homeland Security; and Department of Homeland Security, Defendants.
No. 406CV002.
United States District Court, S.D. Georgia, Savannah Division.
June 18, 2008.
ORDER
B. AVANT EDENFIELD, District Judge.
I. INTRODUCTION
Plaintiff Peter Brown brought this action against Michael Chertoff and the Department of Homeland Security (collectively the "Government") alleging that various forms of discrimination motivated his termination from the U.S. Customs and Border Protection Savannah Laboratory. Doc. # 1. Due to prior motion work, only Count II, alleging retaliation for protected activity under Title VII, remains. Doc. # 1 at 12-14 (Brown's retaliation claim); doc. ## 57, 89 (dismissing some claims and granting summary judgment on others).
The Government moved for summary judgment on Brown's remaining claim (doc. # 58), prompting Brown to move under F.R.Civ.P. 56(f)[1] to take certain depositions to oppose the summary judgment motion. (doc. # 83). The Court granted that request and denied the Government's motion without prejudice. Doc. # 91.
Those depositions have since been taken and the Government renews its motion for summary judgment. Doc. # 107. But Brown now moves to compel discovery (doc. # 112), for spoliation-of-evidence sanctions, (doc. # 113), and for leave to withhold his response to the Government's summary judgment motion until after the Court has ruled on his discovery motions (doc. # 114).
The Magistrate Judge ruled on the motion to compel (doc. # 129), and the Government does not oppose (doc. # 115) Brown's leave request, so it is granted. Thus the only motion deserving discussion is Brown's motion for sanctions.
II. BACKGROUND
Brown was employed for approximately 20 years at the U.S. Customs and Border Protection Savannah Laboratory (the Lab), a unit of the Department of Homeland Security (DHS). Doc. # 1 at 2-3. He specialized in organic chemistry. Id. at 3. At some point in 2000, the Lab transferred him from the "Organic Team" to the "Inorganic Team," though he continued to analyze only organic material. Id. at 3-4.
In the summer of 2002, the Lab began assigning "inorganic material" (metal, rock) tasks to Brown. Id. Brown felt he was unqualified, but the Lab disagreed. Doc. #8 at 8. When the Lab director noted that Brown must have learned something about inorganic chemistry during his two years on the Inorganic Team, Brown sent his supervisor an email asking "Has [the lab director] been in a coma? Has the Assistant Laboratory Director led him down a garden path?" Doc. # 26, exh. A at 4.
Also in response to his reassignment, Brown complained over his Lab superiors' heads to DHS superiors, and also to the American Association of Laboratory Accreditation (A2LA) claiming the Lab was violating accreditation standards by having an organic chemist analyze inorganic material. Doc. # 1 at 5-6. In an effort to be put back on the Organic Team, Brown invoked DHS's Equal Employment Opportunity (EEO) procedures, where he claimed discrimination pursuant to the ADEA and Title VII.[2]Id. at 6.
Finally, on at least one occasion in late 2002 Brown added a caveat to a lab report for an analysis of inorganic material. In it he stated that he did not feel competent to perform the analysis but did it anyway at management's request. Doc. # 1 at 6. In response to this caveat, the Lab provided Brown 10.6 hours of training in inorganic analysis. Id.
The Lab Director also responded. On 11/21/02, he sent Brown a memo instructing him not to write such caveats on his lab reports, nor otherwise inform lab report recipients ("customers") that he felt unqualified. Id. at 7. In reply, Brown resorted to writing "see memo" (or similar wording) on his lab reports of inorganic analyses, thus attempting to beckon the reader to read the 11/21/02, "stop-with-the-caveats" memo. Id. at 7-8.
In 3/03, Lab management asked Brown what the "see memo" comments in his lab reports meant. Id. at 8. On 4/11/03, after learning the meaning of Brown's comments, management recommended that DHS Human Resources take serious disciplinary action for Brown's "seditious" behavior. Id. at 9 (quoting 4/11/03 memorandum). Subsequently, the DHS terminated him for "(1) insubordination; (2) inappropriate conduct [for the email containing "coma" and "garden path" comments]; and (3) failure to complete work assignments." Id. at 10.
Brown appealed his termination to the U.S. Merit Systems Protection Board (MSPB). Id. He raised various claims including retaliatory termination for his prior Equal Employment Opportunity (EEO) activities in violation of Title VII of the Civil Rights Act of 1964, as amended by 42 U.S.C. § 2000e, et seq. Id. The Administrative Judge (AJ) found that the DHS had established insubordination and inappropriate conduct, and rejected all of Brown's claims. Id. at 10-11. Brown unsuccessfully petitioned the MSPB for reconsideration, so the AJ's decision became the final decision of the MSPB. See Bante v. Merit Sys. Prot. Bd., 966 F.2d 647, 648 (Fed.Cir. 1992) (AJ's decision becomes final decision of MSPB when MSPB denies review).
Brown's current spoliation claim arises from document destruction that traces back to the bureaucratic layers of review contained within the aforementioned process. When management complains of employee misconduct, the U.S. Customs and Border Protection ("the agency") follows a multi-layered disciplinary procedure. First, management's allegations of misconduct are given to an employee relations (ER) specialist who performs an initial investigation. Doc. # 119-7 at 5 (as numbered by CM/ECF) (Coleman depo.). The ER specialist processes the case. Id. More serious allegations of misconduct warrant eventual submission to the Discipline Review Board (DRB) which then proposes a punishment. Id. Before going to the DRB, the ER specialist discusses the matter with Internal Affairs (IA). Id. IA either investigates the matter or appoints a fact-finder. Id. But, in rare situations, if the ER specialist already has sufficient documentation of the misconduct, IA, after consultation, will not involve itself and instead the case is taken straight to the DRB. Id.
The ER specialist, after gathering all of the information into a case file, submits it to the DRB for review. Id. at 8. Two weeks later, the ER specialist meets with the DRB, provides a summary of the case, and fields questions on the worker's employment history (discipline, awards, term of service, etc.). Id. at 9. The DRB proposes a penalty which prompts the ER specialist to draft a "proposal letter." Id. The employee then has an opportunity for an oral reply from which a transcript is produced. Id. at 17-18. The transcript of the oral reply is submitted with the case file to the Deciding Official (DO) who actually, makes the final punishment decision for the agency.
Prior to any decision, the DO and the ER specialist meet to review the submitted materials and discuss the Douglas factors' 12 criteria developed in Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280 (M.S.P.B.1981), to help agencies assess a reasonable penalty against an employee. Doc. # 119-7 at 18. The DO then makes a decision and the ER specialist drafts a "decision letter" reflecting that determination. Id.
Tracy Coleman was the ER specialist assigned to Brown's case. Id. at 8. Thus, Coleman performed most of the legwork in the discipline process. According to her deposition, she took notes during various stages of the proceedings including: (1) notes to provide a summary of the case to the DRB ("summary notes"); (2) notes of the DRB proceeding ("DRB notes"); (3) notes of Brown's employment history; (4) notes of the oral reply; and (5) notes of the discussion with the DO ("DO notes"). Id. at 9, 10, 17, 18.
While these notes were part of Brown's case file, they were never produced to Brown (even though the rest of the case file was given to him during the disciplinary process). Brown's case file, including the notes, was later destroyed during an agency building-relocation when all closed disciplinary case files (around 200) from 2003 (the year of Brown's disciplinary action) were destroyed. Doc. # 119 at 2. Brown's case file was destroyed in 8/06, seven months after he filed this case (1/4/06). Id. at 3-4. Brown first learned of its destruction at Coleman's deposition.
Brown now argues that the destruction of these notes merits sanctions against the Government for the failure to preserve relevant evidence. Doc. # 113. He calls for (1) an adverse inference that the notes contained evidence favorable to his case; (2) denial of the Government's summary judgment motion; and (3) a jury instruction that the notes' destruction constitutes evidence of pretext. Id. at 1. The Government, meanwhile, admits to the negligent destruction of the materials but minimizes their significance in arguing that sanctions are not warranted. Doc. # 119.
III. ANALYSIS
"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Griffin v. GMAC Commercial Finance, L.L.C., 2007 WL 521907 at *3 (N.D.Ga.2/15/07) (unpublished) (quotes omitted). District courts have broad discretion to impose sanctions against spoliators.
In exercising that discretion, district courts must consider: (1) whether the plaintiff was prejudiced as a result, of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the defendant acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.[3]Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir.2005). Potential sanctions include: (1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator. Id.
Again, Brown's underlying claim is for illegal retaliatory termination based on his prior EEO activity. To establish a prima facie case of retaliation under Title VII (and thus a presumption of retaliation), a plaintiff must show: (1) he participated in an activity protected by Title VTI; (2) he suffered an adverse employment action; and (3) there is a causal connection between the participation in the protected activity and the adverse employment action. Brawn v. City of Opelika, 211 Fed. Appx. 862, 863 (11th Cir.2006).
Upon establishment of a prima facie case, the burden shifts to the employer to produce legitimate reasons for the adverse employment action. Id. at 864. Those legitimate reasons rebut the previously established presumption of retaliation. Id. The plaintiff then must show that the proffered reasons are merely pretext for the employer's retaliatory action. Id. If pretext is established, the defendant may still assert a "mixed motive" defense that the defendant would have made the same decision without an illegal motive. Pennington v. City of Huntsville, 261 F.3d 1262, 1268-69 (11th Cir.2001).
Brown claims that the destruction of his case file prejudices him in his ability to establish pretext. Doc. #113 at 13. To adequately show pretext, Brown must "cast sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude that the employer's proffered legitimate reasons were not what actually motivated its conduct." Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quotes and cite omitted). In other words, he must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Id. (quotes omitted).
Brown's position has merit. Coleman's notes, Brown insists, would have shed light on the decision-making process that led to his termination. Id. at 14. More specifically, those notes covered the information she presented to the DRB, the DRB proceedings, and her discussions with the DO all of which might be useful to undermine the agency's proffered legitimate reasons for termination (insubordination and inappropriate conduct).
The notes might also have documented why IA did not perform an investigation into the allegations of Brown's misconduct. Id. According to agency procedure, an IA investigation is routinely conducted during the disciplinary process. Doc. # 119-7 at 5. Because no investigation occurred, the DRB did not review a Report of Investigation from the IA (something the DRB normally does). Id. And under employment discrimination law, an employer's failure to follow its own policies may be evidence of pretext. Connor v. Sun Trust Bank, 546 F.Supp.2d 1360, 1374-75 (N.D.Ga.2008). To "establish pretext based on a failure to follow procedures," it must be remembered, "a plaintiff must show that the deviation from policy occurred in a discriminatory manner." Keaton v. Cobb County, 545 F.Supp.2d 1275, 1308 (N.D.Ga.2008). Here the agency chose not to perform an IA investigation in Brown's case, but there is no documentation of that decision, which means that these destroyed notes may have been informative.
All of this must be viewed against the larger backdrop employment discrimination cases' hinge on a plaintiffs ability to show improper considerations motivated an adverse employment action (i.e., termination). So a record documenting those considerations is quite relevant; the destruction of that veiy record, then, naturally causes prejudice. Here Coleman's notes represent an informal contemporaneous record of the decision-making process to terminate Brown. Such a record is highly relevant to proving the Government's, proffered legitimate reasons are nothing more than pretext.
Given the relevance of Coleman's notes, some prejudice must follow from their destruction. "If relevant evidence is not produced, for whatever reason, and then is destroyed before either party learns of the existence of that evidence, then the absence of the relevant evidence prejudices the party that would have relied on it to prove its case." Connor, 546 F.Supp.2d at 1376. While the Government insists it is pure speculation that the notes contained any damaging evidence (e.g., EEO references), that is not the appropriate inquiry. To require a party to show, before obtaining sanctions, that unproduced evidence contains damaging information would simply turn "spoliation law" on its head. See Residential Funding Corp. v. Degeorge Financial Corp., 306 F.3d 99, 109 (2d Cir.2002) ("Courts must take care not to hold[] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence, because doing so would subvert the ... purposes of the adverse inference, and would allow parties who have ... destroyed evidence to profit from that destruction") (quotes omitted). Therefore, courts properly focus on the relevance of the destroyed evidence in determining prejudice. Flury, 427 F.3d at 945 (destroyed evidence was "central" to defendant's case). Brown therefore has shown the first factor.
Moving to the second factor, the Government insists that any potential prejudice has been cured by Coleman's testimony regarding her notes, along with the testimony of a DRB member and the DO regarding the decision-making process. Those individuals have all testified that no consideration at all was given to Brown's EEO complaint. Doc. # 119 at 15, 17. In fact, Coleman deposed that she never presented any information to the DRB or the DO regarding Brown's EEO complaint, nor would there have been any mention of it in her notes. Doc. # 119-7 at 14, 22, 24. For that matter, the only mention of his EEO activity during the process was by Brown himself at the rebuttal stage. Doc. # 119 at 15. According to the Government, the availability of their testimonies cures any prejudice from the destruction, and the substance of their statements show a lack of prejudice at all.
Brown disagrees, claiming that three/ four-year-later-testimony is no substitute for notes recorded contemporaneously with the disciplinary process. Doc. # 127 at 17. He points to Coleman's admission that she attempted to review the destroyed case file prior to her deposition to refresh her memory. Id. Furthermore, in that deposition she does not recall the details of her notes or the rest of the file. Id.
The Court agrees, and the Government admits (doc. # 119 at 14), that the notes are more reliable than the deponents' memories (time, of course, erodes all human memory). Yet, their sworn testimony is that Brown's EEO activity was not considered. In essence, Brown now questions their credibility and memory capability (and the notes would aid him in doing so), but those are issues that can be tested and determined by a jury at trial. Of course, the absence of these notes makes Brown's case more difficult to prove. On balance, then, the available testimony of the individuals involved in the discipline process alleviates only some, .but not all, of the prejudice stemming from the spoliation.
As for the third factor the significance of the missing evidence the Government minimizes the practical importance of these notes through Coleman's testimony that her summary notes only reflected the information of other materials in the case file (that part of the case file was produced to Brown). Doc. #119-7 at 9. And the contents of her DRB notes and DO notes were contained in the "proposal letter" and "decision letter," respectively. Id. at 9,19. Thus, the Government concludes, the actual notes are of little importance because they are contained in other materials that were provided to Brown. Brown does not respond to this assertion, so it must weigh in favor of no sanctions.
Also claiming the lack of an IA investigation was insignificant (thus any notes regarding the decision lack importance), the Government illuminates Coleman's testimony explaining why an IA investigation did not occur:
In this particular case, all the facts in this case there was no need for an investigator or a fact-finder because we had all of the documentation, statements from management, [¶] And in cases like that, which are very rare, we can proceed with sufficient documentation to the DRB. And in this particular case, that's what we did.
Id. at 5.
The Government also highlights an internal office memorandum (the "Winwood Memo") that declared that employee insubordination need not be investigated by IA. Doc. # 119-9 at 3. This is further supported by an IA employee's sworn declaration that "it was not the practice of USCS/IA to investigate allegations of employee insubordination." Doc. # 119-8 at 1 (Pignone declaration). Thus, says the Government, an IA investigation normally would not occur in this situation. So', the Government concludes, any notes regarding the decision not to conduct an investigation are of little value here.
But there is some discrepancy between the Winwood Memo/Pignone Declaration and Coleman's deposition. Coleman stated that "[t]he normal procedure for cases that go before the [DRB] is that they are reported to [IA]," and IA investigates in some manner. Doc. #119-7 at 5. What occurred here, according to her, was "rare." Id. at 6. This dispute increases the potential importance of any evidence that might explain the decision for IA not to investigate.[4]
So far the Court has determined that the relevant nature of the destroyed notes prejudices Brown. But the testimony of Coleman and the other participants in the disciplinary process cures that prejudice to some extent, though not completely given the value of a contemporaneous record versus testimony three or four years after the fact. The Government also says that the contents of those notes are reflected in other materials, thereby minimizing their importance, so no sanctions should be imposed. Yet, the parties disagree over the importance of any potential notes documenting the lack of an IA investigation. Considering all of the evidence together under the first three factors, the Court concludes that Brown is suffering some prejudice from the document destruction in question.
As for the fourth factor, the Government concedes that it prematurely destroyed Brown's case file in violation of an EEOC regulation and a General Records Schedule (the agency's rules regarding destruction of case files). Doc. #119 at 2. But because it was destroyed (along with 200 other closed case files from that same year) as a cost-saving measure during an office move, the Government argues such conduct was merely negligent and not worthy of sanctions. Id. In other words, there was no bad faith and thus there is no support for an adverse inference. See Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) ("Mere negligence in losing or destroying the records is not enough for an adverse inference, as it does not sustain an inference of consciousness of a weak case"); Penalty Kick Management Ltd. v. Coca Cola Co., 318 F.3d 1284, 1294 (11th Cir.2003) ("[A]n adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith").
But since Flury, bad faith is only one factor to consider. 427 F.3d at 946. Now courts "should weigh the degree of the spoliator's culpability against the prejudice to the opposing party." Id. In evaluating culpability, district courts routinely look to a party's failure to take proper measures to preserve evidence. Ladner v. Litespeed Mfg. Co., 537 F.Supp.2d 1206, 1214 (N.D.Ala.2008) (court examined whether or not there was a "failure to exercise any precautions to safeguard" evidence); National Grange Mut. Ins. Co. v. Hearth & Home, Inc., 2006 WL 5157694 at * 5 (N.D.Ga.12/19/06) (unpublished) (where "plaintiff had access to and control over the evidence and failed to preserve it," culpability rested with plaintiff).
Here, the Government is clearly culpable for the destruction of this evidence. Brown's adverse case file was not destroyed until seven months after the current case was filed. Doc. # 119 at 3-4. Even before the current litigation the Government was on notice that it should have preserved relevant evidence such as Brown's adverse case file. Brown had already appealed his termination to the MSPB earlier putting the Government on notice that litigation would likely follow. On top of all that, the Government violated its own General Records Schedule and an EEOC regulation by destroying Brown's case file prematurely.
So the fact that this file was negligently destroyed in a mass purging of case files does not excuse the Government's culpability for its destruction. The level of prejudice to Brown from the spoliation, coupled with the Government's fault merits some form of sanction. However, considering the absence of bad faith and the opportunities to alleviate some of that prejudice through testimony, a severe sanction is not warranted here.
Should this case survive renewed summary judgment, then, the Court will instruct the jury that the Government's destruction of Coleman's notes raises a rebuttable inference that they contained evidence of pretext. But the Court will also instruct that the Government is free to rebut that adverse inference by showing that those materials contained no such evidence.
In that vein, the Court will accept that Brown has established pretext in opposition to the Government's motion for summary judgment. Accordingly, the Court denies the Government's summary judgment motion without prejudice to its right to renew it should it wish to demonstrate that, notwithstanding Brown's pretext showing, it is still entitled to summary judgment against him.[5] Any renewal motion must be filed within 15 days of the date this Order is served.
IV. CONCLUSION
The Court GRANTS in part and DNIES in part plaintiff Peter Brown's motion for sanctions. Doc. # 113. The Government's motion for summary judgment is DENIED WITHOUT PREJUDICE to its right to renew it within the conditions set forth supra. Doc. # 107. Brown's unopposed motion (doc. # 114) for leave to withhold his response to the Government's summary judgment motion until after the Court has ruled oh his discovery motions (motion to compel and the instant spoliation motion) is also GRANTED. Brown shall have 30 days from the date he is served with any renewed summary judgment motion by the Government.
NOTES
[1] Rule 56(f) states:
If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable ... depositions to be taken . ..; or
(3) issue any other just order.
Rule 56(f).
[2] Brown claimed he was discriminated against as a white, Catholic male over age 40. Doc. #119-7 at 14.
[3] Neither party makes any argument regarding the fifth factor and it does not seem applicable in this case. Thus it will not be considered.
[4] In an earlier Order, the Court reviewed the MSPB's determination that the lack of an IA investigation was not an error in the agency's discipline procedures. Doc. # 57 at 15-16. By statute (5 U.S.C. § 7703(c)), the Court had to apply an arbitrary and capricious standard in reviewing the MSPB's decision (which the Court found was proper under that standard). But that previous decision is not controlling (and has no bearing) here because the Court must conduct a de novo review of Brown's Title VII discrimination claim. See Kelliher v. Veneman, 313 F.3d 1270, 1274-75 (11th Cir. 2002).
[5] Of course, the Court expresses no opinion whether Brown can even establish a prima facie case of Title VII retaliation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1020308/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4728
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROZELL ALONZA JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-40)
Submitted: June 9, 2006 Decided: August 30, 2006
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rozell Alonza Johnson appeals the 292-month sentence
imposed by the district court after Johnson pled guilty to
conspiracy to possess with intent to distribute and to distribute
fifty grams or more of crack cocaine, in violation of 21 U.S.C.
§ 846 (2000); possession with intent to distribute 108 grams of
crack, in violation of 21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C.
§ 2 (2000); and possession with intent to distribute 129 grams of
cocaine, in violation of § 841(a)(1) and § 2. On appeal, Johnson
asserts that the district court erred by applying a two-level
upward adjustment under U.S. Sentencing Guidelines Manual § 3C1.2
(2004), for reckless endangerment during flight, and that the court
erred by refusing to award a downward adjustment under USSG § 3E1.1
for acceptance of responsibility. We affirm.
In a post-Booker* sentencing like Johnson’s, a district
court must calculate the applicable guideline range after making
the appropriate findings of fact, consider the range in conjunction
with other relevant factors under the guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), and impose a sentence. United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citing United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)), cert. denied,
126 S. Ct. 2054 (2006). The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Hughes, 401
*
United States v. Booker, 543 U.S. 220 (2005).
- 2 -
F.3d at 546-47 (citations omitted). In reviewing the calculation
of the advisory sentencing guideline range, this court “review[s]
the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Hampton, 441 F.3d 284,
287 (4th Cir. 2006).
Johnson asserts on appeal that the district court erred
in failing to apply a two-level downward adjustment for acceptance
of responsibility. We review a district court’s decision to grant
or deny an adjustment for acceptance of responsibility for clear
error. United States v. May, 359 F.3d 683, 688 (4th Cir. 2004)
(citing United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999)).
Our review of the record convinces us that the district court did
not clearly err in refusing to apply an acceptance of
responsibility downward adjustment.
Johnson also challenges the district court’s application
of the upward adjustment for reckless endangerment during flight.
He contends that his flight from police was not reckless because he
was merely a passenger in the car that hit an officer’s unmarked
vehicle and there was no evidence that he knew his co-defendant
would hit the officer’s car. Because Johnson challenges the
application of the reckless endangerment adjustment to the
undisputed facts of his case, our review is de novo. See Hampton,
441 F.3d at 287; United States v. Butner, 277 F.3d 481, 487-88 (4th
- 3 -
Cir. 2002) (reviewing de novo legal ruling based upon undisputed
facts).
An adjustment under § 3C1.2 is warranted “[i]f the
defendant recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing from a law
enforcement officer. . . .” USSG § 3C1.2. In making this
determination, the normal scope of relevant conduct described in
USSG § 1B1.3 is narrowed by USSG § 3C1.2 cmt. n.5. A defendant “is
accountable only for his own conduct and for conduct that he aided
or abetted, counseled, commanded, induced, procured, or willfully
caused.” USSG § 3C1.2 cmt. n.5. Because Application Note 5 to
§ 3C1.2 “limits the defendant’s responsibility for the actions of
another,” this court has held that “some form of direct or active
participation” on the part of the defendant is necessary for
§ 3C1.2 to apply when the reckless flight is the result of another
person’s action. United States v. Chong, 285 F.3d 343, 346 (4th
Cir. 2002) (internal quotation marks and citation omitted).
Assuming, without deciding, that the district court may
have erred in applying the two-level upward adjustment under USSG
§ 3C1.2, we find that any error is harmless. Without the § 3C1.2
adjustment, Johnson’s total offense level would have been
thirty-six. With a criminal history category of III, the
applicable advisory guideline range would have been 235 to 293
months of imprisonment. Johnson’s 292-month sentence falls within
- 4 -
that range. See United States v. Mashek, 406 F.3d 1012, 1017 (8th
Cir. 2005) (“[T]here may be situations where an error in
calculating the appropriate guidelines range is harmless and,
therefore, does not require immediate remand[,] [such as] where the
resulting sentence lies in the overlap between the correct and
incorrect guidelines ranges.”) (citations omitted).
Accordingly, we affirm Johnson’s sentence. We deny the
motion to relieve counsel and dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 5 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1548524/ | RANDOLPH E. WAYMAN, Petitioner Below, Appellant,
v.
STATE OF DELAWARE, Respondent Below, Appellee.
No. 130, 2010.
Supreme Court of Delaware.
Submitted: March 22, 2010.
Decided: April 9, 2010.
Before BERGER, JACOBS and RIDGELY, Justices.
ORDER
JACK B. JACOBS, Justice.
This 9th day of April 2010, upon consideration of the appellant's opening brief and the appellee's motion to affirm, it appears to the Court that:
(1) The appellant, Randolph E. Wayman, filed an appeal from the Superior Court's March 1, 2010 denial of his petition for a writ of habeas corpus. The appellee, State of Delaware, has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of Wayman's opening brief that the appeal is without merit. We agree and AFFIRM.
(2) On May 8, 2008, Wayman pled guilty to a drug offense and second degree conspiracy and was sentenced, on the drug offense, to three years at Level V, suspended after one year/successful completion of the Level V Key Program, for twelve months at Level III probation. On the second degree conspiracy conviction, Wayman was sentenced to two years at Level V suspended for one year at Level III probation.[1]
(3) In July 2009, Wayman was charged with violation of probation. After a hearing on July 31, 2009, Wayman was adjudged guilty of violation of probation. On the conspiracy conviction, Wayman's probation was terminated, and he was discharged as unimproved. On the drug conviction, Wayman was sentenced to one year at Level V boot camp followed by one year at Level III aftercare.
(4) On February 26, 2010, Wayman filed a petition for a writ of habeas corpus. Wayman alleged that he was being unlawfully detained at Level V as a result of the Department of Correction's refusal to transfer him to boot camp.[2] By order dated March 1, 2010, the Superior Court denied Wayman's habeas corpus petition. This appeal followed.
(5) In Delaware, the writ of habeas corpus provides relief on a very limited basis.[3] After a judgment of conviction and sentencing, the only issues to be decided on a petition for a writ of habeas corpus are the existence of a judgment of conviction by a court of competent jurisdiction and a valid commitment.[4]
(6) In this case, Wayman has not demonstrated that he is entitled to habeas corpus relief. The Superior Court had jurisdiction on July 31, 2009 to adjudge Wayman guilty of violation of probation and to sentence him on the drug conviction to one year at Level V boot camp followed by one year at Level III aftercare. By order dated March 1, 2010, the Superior Court denied Wayman's February 26, 2010 habeas corpus petition after determining that he was not being illegally detained. We can discern no error in the Superior Court's denial of the habeas corpus petition.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
NOTES
[1] State v. Wayman, Del. Super., Cr. ID No. 0712028380 (May 8, 2008) (sentencing). The docket reflects that the sentence was later modified.
[2] The docket reflects that the July 31, 2009 sentence was modified on March 26, 2010 to vacate the boot camp portion of the sentence and replace it with one year and six months at Level V suspended for one year at Level III probation.
[3] Hall v. Carr, 692 A.2d 888, 891 (Del. 1997).
[4] Curran v. Woolley, 104 A.2d 771, 773 (Del. 1954). | 01-03-2023 | 10-30-2013 |
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